Guest Column | October 4, 2017

Using Your Business As A Protest: What Retail Employers Need To Consider

By Kelly Hughes, shareholder in Ogletree Deakins’ Charlotte office and co-chair of the firm’s Retail Practice Group

U.S. Retail Benchmarks Show Decline In Store Traffic

Many private businesses throughout Charlottesville, NC closed their doors during recent protests to show solidarity with minority employees and communities. Some displayed signs making the announcement and affirming the businesses’ minority-friendly stance.

Showing support to your employees and customers in situations like these can be great for reinforcing an affirming and welcome workplace, and many companies have decided to take a public stance on various political and social issues. Although there may be obvious risks with respect to delving into political and social issues from the standpoint of possible alienation of consumers and customers, retail employers also need to consider the potential employment law implications. Perhaps the most critical consideration that should be at the forefront of retailers’ minds is the impact of applicable anti-discrimination provisions.

Isn’t Taking A Public Stance Against Discrimination Liability-Proof?

At first glance it appears a company’s decision to close their doors for a day in protest against white supremacists, for example, could not in any way conflict with Title VII of the Civil Rights Act of 1964, as amended, which is the federal law that prohibits employment discrimination on the basis of race, color, sex, religion, and national origin. Indeed, such actions are often seen as an extension of an employer’s anti-discrimination policies and harmonious with diversity and inclusion initiatives. However, despite the best of intentions, a company’s decision to inject itself into the public discourse when one racial group is under attack may later create allegations of disparate treatment and favoritism when the company fails to take the same or similar stand when other racial groups are the subjects of discriminatory assaults.

Consistency Is The Key

Treating one employee or group of employees differently than another employee or group of employees based upon any protected characteristic is unlawful, and employers need to be cognizant of that fact. While examples of a company’s outward support of one protected group but not another in similar circumstances will likely not carry the day in an employment lawsuit, depending upon the situation, such examples could be relevant in certain contexts (especially where the employee alleging discriminatory treatment was a member of the racial group that received no company support and alleges preferential treatment by the company in favor of a member of the racial group the company did support).

When Civil Rights Collide

There are also situations in which support for one civil rights issue implicates and potentially collides with another. Indeed, many of the political and social issues of the current day necessarily implicate religion. Take the case involving the Colorado baker who refused to make a wedding cake for a same-sex couple because he contends to do so would violate his sincerely-held religious beliefs. While Colorado state public accommodations law prohibits discrimination on the basis of sexual orientation, the baker alleges his rights to free speech and free exercise of religion are being infringed if forced to make custom cakes for use in same-sex wedding ceremonies. The Supreme Court of the United States has granted the petition for writ of certiorari in this case with oral arguments to take place later this year.

What About Political Affiliation?

What if an employer wants to encourage employees to vote a particular way, hire individuals of one political party versus another, or the like? Not so fast! In addition to the various state and local laws prohibiting discrimination or retaliation against employees who engage in lawful conduct during non-working hours, private employers need to be aware of state and local laws explicitly prohibiting discrimination on basis of political affiliation and/or activities. These laws may concern engaging in political activities, expressing political ideas, belonging to a political party, signing political petitions, giving campaign contributions, and/or other actions. For example:

  • States
    • California — California Labor Code prohibits employers from forbidding or preventing employees from engaging or participating in politics or from becoming candidates for public office or controlling or directing, or tending to control or direct the political activities or affiliations of employees.
    • Louisiana — Louisiana statutes prohibit any person (including private employers) from intimidating, deceiving, or misinforming, directly or indirectly, any voter or prospective voter in matters concerning voting or nonvoting or voter registration or nonregistration, or the signing or not signing of a petition, including but not limited to any matter concerning the voluntary affiliation or non-affiliation of a voter with any political party.
  • Cities/Municipalities
    • City of Seattle (Washington) — Seattle’s ordinance lists “political ideology” as a protected class in employment (as well as housing, contracting, and public accommodations).
    • Madison (Wisconsin) — Madison’s Equal Opportunities ordinances prohibit employers from discriminating against employees on the basis of “political beliefs.”

And there are many other states and localities with various laws on the books addressing similar protections.

Possible Exceptions?

Of course, there are some exceptions that may apply depending upon the circumstances. For example, Minnesota statutes provide that “an individual or association must not engage in economic reprisals or threaten loss of employment … against an individual or association because of that individual's or association's political contributions or political activity.” However, the law provides an exception for “compensation for employment or loss of employment if the political affiliation or viewpoint of the employee is a bona fide occupational qualification of the employment.”

Similarly, Section 201-d from New York’s Labor Code provides it is unlawful for any employer to “refuse to hire, employ or license, or to discharge from employment or otherwise discriminate against an individual in compensation, promotion or terms, conditions or privileges of employment because of … an individual's political activities outside of working hours, off of the employer's premises and without use of the employer's equipment or other property, if such activities are legal, …” “Political activities” include things like running for public office, campaigning for a candidate for public office, or participating in fund-raising activities for a candidate, political party or political advocacy group, but the law does not protect activity which “creates a material conflict of interest related to the employer's trade secrets, proprietary information or other proprietary or business interest,” among other things.

So Should We Just Sit Back And Do Nothing?

No. Employers still need to think outside the box with respect to supporting employees and be willing to engage in public dialogue about these issues — issues critical to continued movement towards equal opportunity for all. However, employers need to be cognizant of the potential ramifications of their actions, consider taking steps to ensure leadership consensus on the how, what, when, where, and how of public engagement so as to avoid or at least minimize disparate reactions to similar situations, be sensitive to the fact that employees likely have diverging views on social issues that may implicate protected characteristics, and be cognizant of the full realm of employment laws (and other laws) that might prohibit or limit specific actions the organization might otherwise wish to take.