Can You Be Fired for Talking Politics at Work?
The answer may surprise you.
Short answer? Yes—and no. It just depends on who your employer is and the context in which you’re engaging in political talk.
If you’re like most people, you’d lay money that the First Amendment protects your right to free speech and freedom of expression at work.
In a private workplace, you’d lose that bet.
The First Amendment only protects you as an employee from government actions against you. Meaning if a police officer wanted to arrest you for wearing a MAGA hat, the officer would be violating your First Amendment right to free speech. However, if your employer tried to fire you for the same reason, you’d be out of work.
There are very limited situations where any kind of free speech rights exist in a private workplace. Most free speech rights simply do not apply at work.
There are exceptions.
When Can’t You Be Fired for Political Talk?
There are basically four exceptions:
Your political talk morphs into protected concerted activity (PCA) talk
Your employer’s actions affect a protected class of people
There’s a state or local ordinance that says otherwise
Your employer is a public entity, e.g., city, county, school district, etc.
Let me explain.
Exception One
This is a critical one for private employers. If you start talking about things like Black Lives Matter, under the current National Labor Relations Board (NLRB) configuration, what you say would be shielded as “protected concerted activity.”
Concerted activity occurs when two or more employees take action to help or protect each other regarding employment conditions or terms. At this time, it’s risky to assume something will not be protected concerted activity. This is because the Board is very political. When a Republican is in the White House, the majority of the Board leans conservative; when a Democrat is in the White House, the majority of the Board leans liberal. We have the latter now, so the Board makes very employee-friendly decisions on what is and is not protected concerted activity. An example of this kind of activity is the recent Home Depot case, where an employee was allowed to write “BLM” on their work uniform. The justification was that that amounted to—in that situation—-protected concerted activity. Had a Republican been in the White House, that decision would be much different.
Exception Two
If your political talk affects a particular class of protected people, then you have an exception. An example would be if you had a dress code policy that prohibits political speech, and a person falls into a protected group, like African Americans, and that person wanted to wear Nike clothing to support Colin Kaepernick. If the only people wanting to wear Nike clothing were Black people, then it could be argued that the policy had a disparate impact. Even though the policy is neutral, if it has a disparate impact on one protected class, the policy would violate Title VII of the Civil Rights Act of 1964. If something like that’s happening in your workplace, you, as a business owner, would want to contact an employment attorney.
Exception Three
If there’s a state or local ordinance or law that says you can engage in political talk at work, you have another exception. As an example, Florida doesn’t have a law concerning this, but Broward County, where Ft. Lauderdale is, does. Its ordinance says that it’s a discriminatory practice to publish an advertisement that indicates a preference limitation, specification, or discrimination based on political affiliation. So, even though that’s not protected by federal law, it could be protected locally.
Exception Four
If your employer is a public entity—a city, county, school district, etc.—you have another exception. Several factors have to apply, though, for political speech to be protected. There’s a key case, Garcetti vs. Ceballos (2006), where the Supreme Court held that when public employees make statements pursuant to their official duties, they aren’t entitled to the same free speech rates as private citizens. Basically, a public entity cannot discharge you on a basis that infringes on your constitutionally protected freedom of speech as a private person, but it can if you speak out in the course of your public duties.
There’s a four-factor test you have to meet to make a claim that your First Amendment rights have been violated. You would have to introduce evidence that demonstrates:
The speech in question wasn’t pursuant to your official duties
The subject of the speech is a matter of public concern
Your interest in commenting on the issue outweighs the potentially disruptive effect of the speech
Your speech was a substantial or motivating factor in an adverse action, like termination, demotion, etc., take against you
So, if you work for a public entity and speak as a private citizen about matters of public concern, even when your speech involves something you learned at work, you don’t lose your First Amendment rights. That’s not a guarantee, however, that all public employees can say whatever they want, they just have to be talking as a private citizen when they do it.
Where Political Speech Leads to Lawsuits
Politics touches nerves. While feeling discomfort doesn’t rise to the level of discrimination, alienating people who don’t chime in on a discussion or have a minority opinion could have a disparate impact on older workers or women, according to the January 2024 ResumeHelp Politics in the Workplace Study. Of the 1,000 workers surveyed, 51 percent said they believe talking politics in the workplace has a negative impact on the work environment. With older workers, 35 and older, more than half reported they felt real discomfort when politics entered the conversation. And 57 percent of women felt political discussions had a negative impact on the workplace.
Such discomfort makes for a perceived hostile work environment. Alienation can lead to not working well or just not working with others, which can lead to adverse actions on the minority view. And that’s where trouble can occur.
Certain issues can spill over into debates. Immigration debates can involve national origin issues. So, depending on what you say, you may create a hostile work environment based on national origin. Similarly, abortion rights can involve a worker’s religious beliefs, which brings up a Title VII issue. LGBT rights can be implicated as sex discrimination issues.
Such issues put employers in a position where they have competing interests, and they may have to make a hard call. There’s always some level of risk for employers when they terminate based on political speech, but sometimes, an employer will just have to roll the dice and do it. If they’re thinking of the safety of their staff, culture, or even brand, there’s some level of risk, but they absolutely might have the legal ability to do it.