Misconception 1: Employees Have a Constitutional Right to Talk "Politics" at Work
Wrong.

Employees, as well as many employers, commonly but mistakenly believe that the First Amendment to the U.S. Constitution guarantees "freedom of speech" at work. In fact, the First Amendment applies only to government action and neither limits the rights of private employers to regulate employees' communications nor provides any constitutional right for those workers to express thoughts or opinions at work. As a result, there is no constitutionally protected right of "free speech" in the offices and factories of private employers. Although employees may be entitled to express their views freely on their own time or on a soapbox in the park, they have no such wide-ranging constitutional rights at work. Absent rights provided by one of the limited exceptions discussed below, there are no legal protections for political activities in the workplace, so private employers generally may refuse to hire, adjust pay/benefits and even discharge "at will" employees because of their political views.2 In short, "political discrimination" often is not unlawful discrimination.

Many employers do have policies limiting the discussion of political candidates and issues at work because of the risks of unlimited "free speech" in the workplace. For example, although there is no general federal law prohibiting employment discrimination on the basis of political affiliation or actions, sometimes seemingly neutral conversations about "politics" can lead to claims of employer discrimination, harassment or retaliation violating federal or state discrimination laws.

Workplace debates about a particular candidate's fitness for office often include mention of genders, races or religions or their views on hot-button social issues such as abortion, "family values," immigration and healthcare, which often are polarizing issues on which there are strong and opposing views among employees of different genders, religions, national origins, etc. The potential for heated disagreements – and inflammatory, impulsive, ill-advised comments – is obvious. Unfortunately, such comments sometimes result in claims of discrimination or retaliation in which it is alleged that "my supervisor is biased against [women/non-Christians/Hispanics] as shown by his comments about [healthcare/abortion/immigration policy]" or "the company punished me because I disagreed with my boss about [a social issue implicating gender, nationality, or religion]." Further, public discussion of schoolyard "bullying" seems to have prompted claims of "bullying" harassment by both supervisory and non-supervisory employees who forcefully advocated their political opinions to unreceptive co-workers. It is understandable, therefore, why many employers simply elect to minimize such controversies by prohibiting all "politics" at work.