Can, or Should, Employers Prohibit Employees from Wearing Political Gear in the Office?

Richard Birke, chief architect of JAMS Pathways, offers insights to SHRM in a recent article discussing how employers can navigate political tensions in the workplace.

As the presidential election approaches, this topic has gained urgency, with many organizations reevaluating their policies on political expression, including the wearing of political gear and the display of paraphernalia.

In this politically charged environment, the question arises: Should employers allow political apparel in the workplace? Karina Sterman, an employment partner at Greenberg Glusker, emphasizes that while political expression is legally permissible under certain circumstances, employers have the right to enforce dress codes and other policies to maintain a harmonious work environment. "So long as speech and images are not violating anti-discrimination and anti-harassment laws, political statements and images can legally be permitted in the workplace," says Sterman. However, she also advises that employers consider the potential consequences of allowing such expression, particularly the risk of escalating tensions among employees.

Jeremy Glenn, office managing partner at Cozen O’Connor in Chicago, adds that in private-sector workplaces, employees typically do not have First Amendment rights to express their political views through office decorations or apparel. However, the definition of what is considered "political" has broadened, encompassing issues like gender, race, and religious discrimination, which may be protected under the National Labor Relations Act (NLRA). This act provides protections even in non-unionized workplaces, complicating the employer's task of managing political expression.

"The difficulty for an employer in defining what is meant by political speech means that the employer risks being overbroad, which creates a bigger problem than was present with the original decoration or clothing," Glenn explains. In light of this complexity, employers are encouraged to revisit and clarify their existing anti-harassment and respectful workplace policies. Ensuring that these policies are well-communicated can help mitigate the risks associated with political expression at work.

Birke, from JAMS Pathways, highlights the potential for political apparel to incite conflict or contribute to a toxic workplace culture. He notes that while self-expression is valuable, it should not come at the expense of workplace harmony. "At our company, for example, we want to help you solve your problem; we don’t want to incidentally get in a fight with you on the way in by wearing a T-shirt advocating for a particular candidate," Birke states. He advocates for employers to establish clear policies that apply uniformly to all employees, including those working remotely. "If you’re on a Zoom call for work, you’re at work," he emphasizes.

For human resources professionals, balancing the legal rights of employees with the need to maintain a respectful and productive work environment is critical.

One effective strategy is to prohibit the display of political clothing and paraphernalia, a measure that can "minimize the emotional heat that is often an unintentional consequence of political expression," according to Sterman. This approach helps prevent the escalation of workplace conflicts and supports a culture of civility. 

"A good supervisor can find a way to gently remind, reinforce, and make clear that [the mission] always matters," 

noting that personal politics can often serve as a distraction from the goals of the company. While Birke acknowledges that political expression is legal, he also stresses the importance of clear policies to maintain a respectful environment.

For more insights on navigating political tensions in the workplace, read the full article here.