Despite the adage “politics and work do not mix”, employees are becoming increasingly emboldened to express support for political causes in the workplace. Because the political and the personal often overlap, seemingly minor disagreements can quickly escalate into loud, heated arguments, and employers must recognize their potentially detrimental impacts. Depending on their content and mode, political expressions in the workplace can impair organizational productivity, divide employees, and constitute a breach of workplace policies and legislation warranting discipline or another form of corrective action.
To effectively manage these potential impacts, employers should be aware of the specific human rights and harassment implications associated with political expression, which may limit and/or complicate the implementation of any corrective action. Additionally, employers should be prepared to proactively prevent issues before they arise, including through their policies and Equity, Diversity, and Inclusion (“EDI”) strategy.
Human Rights and Harassment Implications
Ontario’s human rights regime offers limited protection for political speech in the workplace. The Ontario Human Rights Code [Code] does not include political belief as a protected ground against discrimination. However, employers should note differences in human rights legislation across jurisdictions in Canada. For comparison, British Columbia’s human rights legislation expressly prohibits discrimination in employment on the basis of “political belief”, and has been liberally construed by adjudicators to include views outside of partisan political beliefs.
A political expression may itself constitute discrimination and/or harassment, depending on its content, delivery, impact, and contextual circumstances. Where political expression has been alleged to constitute harassment under the Ontario Occupational Health and Safety Act and/or discrimination under the Code, employers should conduct a thorough investigation of the incident.
Determining whether political expression has crossed the threshold into discrimination, harassment, or a violation of legislation or workplace policies is highly fact-specific, and requires a detailed examination of the facts and a thorough analysis of the relevant concepts. Given the complexity of the issue, we encourage you to consult with or engage an experienced investigator.
Corrective Action and Discipline
When political expression exceeds reasonable limits and constitutes discrimination, harassment, or other form of misconduct, employers must assess the appropriate level and form of corrective action to take. While the Code does not prohibit discrimination based on political belief or expressly bar employers from disciplining employees for misconduct connected to political belief, employers should nevertheless exercise caution.
As a practical consideration, disciplining an employee for a political expression can be perceived as unfair, regardless of its legality, and may diminish workplace morale. Therefore, when imposing discipline, an employer should ensure to clearly connect its decision to a violation of workplace standards regarding employee conduct (ideally as outlined in the organization’s policies). Additionally, it is imperative that employers ensure the conduct grounding such discipline does not also intersect with another protected ground. For example, the line between political belief and creed (i.e., religious beliefs and practices) can be subtle, and failure to recognize this can lead to significant human rights-related liability.
Strategies for Employers
To best manage political expression in the workplace, we encourage employers to adopt the following best practices:
Develop Comprehensive Policies
Policies are a vital tool for effectively managing political expression in the workplace. They serve a dual purpose: providing a reliable framework for employers to rely upon when imposing discipline for disruptive incidents related to political expression, and proactively setting expectations to prevent conflict. For example, harassment and discrimination policies should clearly articulate expectations regarding permissible workplace conduct.
Prudent employers should also implement or revamp policies regarding social media and off-duty conduct, due to the work-related impacts that can arise when employees publicly express political beliefs outside of work.
Tailor the Response
Even when a political expression does not amount to harassment, discrimination, or a policy violation, the fallout that it may have triggered will need to be addressed through restorative efforts. To regain harmony at work, employers must respond in a manner tailored to their unique organizational context and values. In addition to investigating and implementing corrective action as necessary, organizations should also take steps towards restoring the workplace through other means, including training, group-facilitated discussions, or issuing a company-wide statement.
Consider EDI Strategy and Anticipate Backlash
Central to considering political expression at work is an organization’s EDI strategy. As political discussions in the workplace become more prevalent, so too does backlash against EDI initiatives. It is crucial for employers to develop an EDI strategy that is reflective of its values, and be intentional and authentic in doing so. Additionally, having a plan in place to respond to anticipated pushback is crucial and may involve engaging in open dialogue to address reasons for EDI initiatives, concerns, and misconceptions. Transparency about organizational plans and policies, whether they relate to politics or EDI, can mitigate resistance and foster a more inclusive workplace.
This blog is provided as an information service and summary of workplace legal issues.
This information is not intended as legal advice.