Salt Lake City—At times, the workplace can feel like a battleground between free speech and preventing harassment or discrimination. Navigating the laws concerning both can be a tricky dance for employers and managers, but it can be done, said Ryan D. Nelson, president of the Utah Employers Council.
“Just as you can express yourself, your employees can and will, inside and out of the workplace, and sometimes that cause conflict," he said.
Part of the conflict comes from the fundamental basis of expression in opinion—because it’s an opinion, its holder can’t be right or wrong, he said, and people express it usually with a certain expectation of being right. There are a number of laws, some of which supersede others, that have to be considered when balancing maintaining a safe workplace and allowing employees to have freedom of speech, he said.
The Constitutional First Amendment right to free speech is one such consideration, but so is the National Labor Relations Act, which protects free speech and political expressions as far as they touch on wages, hours or working conditions; Title VII, which applies to public and private employers with at least 15 employees and protects against harassment or discrimination based on race, color, religion, sex or national origin; and Utah’s own free speech law, which protects persons speaking as citizens on a matter of public concern as long as it doesn’t disrupt business.
Those laws can sometimes trump each other, and in some instances, speech can be protected under some but not others. Nelson pointed to an op-ed from earlier this year from then-Wasatch County Republican Party Vice Chair James Green, who argued that eliminating the wage gap between men and women would be harmful for businesses and threaten men’s abilities to provide for their families. The opinion piece received explosive backlash, prompting Green to resign from his position days later.
From a legal standpoint, Nelson said, Green’s op-ed was protected speech under Utah Code—it expressed his opinion as a private citizen about a matter of public concern—but was not protected under Title VII or the NLRA. If Green had been fired, rather than resigned, that action would have been appropriate under Title VII and the NLRA, but would have broken Utah law.
Likewise, if an employee wants to display a religious picture or symbol in their personal workspace, although that action is not specifically covered by NLRA or Utah law, Title VII permits it—as long as non-religious personal items, including photos, are allowed in others’ private workspaces and the religious item is not offensive to any other protected groups.
The balance can also depend on whether a company is a public or private employer, said Nelson, and extends beyond words and actions. A 2016 case with the Equal Employment Opportunity Commission centered on a “Don’t Tread on Me" shirt worn by an employee that another employee, who was black, found offensive. The supervisor, familiar with the symbol’s history in the Revolutionary War, dismissed the black employee’s concerns that the symbol was racist. The EEOC found that while the supervisor was still within his rights to dismiss the concerns, he was negligent in researching the full history of the symbol—in some areas, the familiar coiled snake is used by racist groups.
Nelson said the conflicting rules and analyses can make compliance difficult, but employers must exercise due diligence to not only be in compliance with the law but make sure their workplaces are conducive for employees. Employers might be tempted to either allow all forms of expression, or curtail personal expression altogether, but Nelson said there are problems with both of those approaches, as there is with a middle-of-the-road approach.
“When you’re doing this analysis running through the facts, you should have a very, very solid grasp on the facts, but also, with symbols, understand what they mean and what meaning they can have," he said. “What we want to be aware of is where that line is drawn."
Nelson said employers should reiterate Equal Employment Opportunity policies and compliance, talk with managers to ensure they report issues, take inter-office employee relations into account, and be consistent with the policy across the board. By distilling a culture of co-existence, not just to managers but from bottom to top, employers can foster a welcoming workplace, he said.