Mc Kenna - The Legal Limits of Tolerance: Managing Controversial Employees


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Mc Kenna - The Legal Limits of Tolerance: Managing Controversial Employees

  1. 1. The Legal Limits of Tolerance: Managing Controversial Employees Susan K. McKenna, Esq. Jackson Lewis LLP 390 N. Orange Avenue, Suite 1285 Orlando, FL 32801 (407) 246-8429
  2. 2. Examples of Controversial Employees • Political activists • Body art aficionados • Religious “cultists” • Transgendered employees
  3. 3. Political Activists Recent study: 80% of employees believe it would be illegal for their employer to fire them for engaging in political expression at work. Freedom of speech, right? Not so fast. In most cases, the 80% are wrong.
  4. 4. The First Amendment Bill of Rights only applies to “state action,” not private employers. Unless another statute is implicated, no federal protection for engaging in political activities at work.
  5. 5. State Laws Affecting Employees Some states protect: • political activities • free speech • right to display flags • off duty conduct of private sector employees. Florida does not.
  6. 6. Restricting Political Expressions • Example 1: employee disciplined for causing tension and hurting morale by bombastic, politically polarizing speech. • Example 2: employee ordered to remove confederate flag decal from toolbox after African American co- worker complained.
  7. 7. Restricting Political Expressions • Example 3: supervisor disciplines employee for actively promoting a candidate or political cause with which the supervisor disagrees. • Example 4: supervisor’s active, vocal support of a candidate allegedly creates a “hostile workplace” for employees who support the opponent.
  8. 8. Discrimination Implications • Offensive depictions of candidates (based on race, ethnicity, gender) • Anti-immigrant rhetoric • Opponents to gay rights initiatives
  9. 9. National Labor Relations Act Section 7 protects concerted activity for “mutual aid or protection.” Can apply to employee conduct which addresses a specifically identified employment-related concern through political advocacy.
  10. 10. NLRA Protections Non-disruptive advocacy on employee’s own time in non-work areas for a specifically identified employment concern is protected. On duty advocacy is subject to employer’s lawful and neutrally applied work rules.
  11. 11. Limits on Employer Speech? 2008 complaint filed with Federal Election Commission alleged employer violated federal election law by discouraging votes for then-Senator Obama because he supported EFCA.
  12. 12. Federal Election Campaign Act Limits permissible employer political advocacy to executives, managers, policy makers only -- not low level supervisors or nonsupervisory personnel.
  13. 13. Body Artists at Work Recent statistics: 40% of adults age 18 to 40 have a tattoo or non- earlobe piercing. Only 36% of employers have policies about body piercings, 22% for tattoos.
  14. 14. How Body Artists Are Viewed 85% of respondents believe tattoos hinder getting hired, and 64% believe it has a negative impact on co-worker and supervisor opinions. Most commentators agree, but predict attitudes will change as the decorated move into managerial positions.
  15. 15. Employer Rights Employers have wide discretion to prohibit or restrict body art. Can employers impose dress or grooming standards which can be seen as gender discriminatory or sexual stereotyping?
  16. 16. Accommodation Obligations The seminal case: Clotier v. Costco – Church of Body Modifications believer attacked company’s enforcement of no facial jewelry policy. Reasonable accommodation analysis by appellate court weighs strongly in employer’s favor.
  17. 17. Best Practices (1) Thoughtful policy which defines the purpose (professional or identifiable appearance; promote a positive workplace which limits distractions caused by provocative or inappropriate dress; workplace safety) and parameters of the restrictions. (2) Consistent enforcement of policy. (3) Recognition that redefinition of standards over time is a possibility.
  18. 18. Religious “Cultists” or Zealots • What is a “cult” is in the eye of the believer -- religion’s broad reach under Title VII • Bona fide religious belief, sincerely held • Covers all aspects of religious observance and practice, including religious speech
  19. 19. Religious “Cultists” or Zealots • When accommodation and harassment considerations collide • Proselytizing and the creation of a hostile workplace • Employee (or supervisor) discomfort at the avidly faithful or proudly atheist co- worker
  20. 20. Transgendered Employees • Gender identity or expression differs from conventional expectations of masculinity or femininity • Includes transsexuals, transvestites and androgynes • Even gay-friendly workplaces can experience difficulties
  21. 21. Workplace Issues • Pronouns and names • Dress and grooming standards • Restroom facilities • Client / customer communications
  22. 22. Best Practices (1) Knowledge is power (2) Be proactive – don’t wait for the issue to arise and have to play catch up (3) Transition team protocols and processes (4) Employee communications and training (5) Involve the transgender employee (6) Consistent enforcement of behavior standards and expectations