1. The Legal Limits of Tolerance:
Managing Controversial Employees
Susan K. McKenna, Esq.
Jackson Lewis LLP
390 N. Orange Avenue, Suite 1285
Orlando, FL 32801
(407) 246-8429
mckennas@jacksonlewis.com

2. Examples of Controversial
Employees
• Political activists
• Body art aficionados
• Religious “cultists”
• Transgendered employees

3. Political Activists
Recent study: 80% of employees
believe it would be illegal for their
employer to fire them for engaging in
political expression at work. Freedom
of speech, right?
Not so fast. In most cases, the 80%
are wrong.

4. The First Amendment
Bill of Rights only applies to “state
action,” not private employers.
Unless another statute is implicated,
no federal protection for engaging in
political activities at work.

5. State Laws Affecting Employees
Some states protect:
• political activities
• free speech
• right to display flags
• off duty conduct
of private sector employees.
Florida does not.

6. Restricting Political Expressions
• Example 1: employee disciplined for
causing tension and hurting morale by
bombastic, politically polarizing
speech.
• Example 2: employee ordered to
remove confederate flag decal from
toolbox after African American co-
worker complained.

7. Restricting Political Expressions
• Example 3: supervisor disciplines
employee for actively promoting a
candidate or political cause with which
the supervisor disagrees.
• Example 4: supervisor’s active, vocal
support of a candidate allegedly
creates a “hostile workplace” for
employees who support the opponent.

8. Discrimination Implications
• Offensive depictions of candidates
(based on race, ethnicity, gender)
• Anti-immigrant rhetoric
• Opponents to gay rights initiatives

9. National Labor Relations Act
Section 7 protects concerted activity
for “mutual aid or protection.”
Can apply to employee conduct which
addresses a specifically identified
employment-related concern through
political advocacy.

10. NLRA Protections
Non-disruptive advocacy on
employee’s own time in non-work
areas for a specifically identified
employment concern is protected.
On duty advocacy is subject to
employer’s lawful and neutrally
applied work rules.

11. Limits on Employer Speech?
2008 complaint filed with Federal
Election Commission alleged
employer violated federal election
law by discouraging votes for
then-Senator Obama because he
supported EFCA.

12. Federal Election Campaign Act
Limits permissible employer political
advocacy to executives, managers,
policy makers only -- not low level
supervisors or nonsupervisory
personnel.

13. Body Artists at Work
Recent statistics: 40% of adults age
18 to 40 have a tattoo or non-
earlobe piercing. Only 36% of
employers have policies about
body piercings, 22% for tattoos.

14. How Body Artists Are Viewed
Vault.com: 85% of respondents
believe tattoos hinder getting hired,
and 64% believe it has a negative
impact on co-worker and
supervisor opinions.
Most commentators agree, but predict
attitudes will change as the decorated
move into managerial positions.

15. Employer Rights
Employers have wide discretion to
prohibit or restrict body art.
Can employers impose dress or
grooming standards which can be
seen as gender discriminatory or
sexual stereotyping?

16. Accommodation Obligations
The seminal case: Clotier v. Costco –
Church of Body Modifications
believer attacked company’s
enforcement of no facial jewelry
policy.
Reasonable accommodation analysis
by appellate court weighs strongly in
employer’s favor.

17. Best Practices
(1) Thoughtful policy which defines the
purpose (professional or identifiable
appearance; promote a positive workplace
which limits distractions caused by
provocative or inappropriate dress;
workplace safety) and parameters of the
restrictions.
(2) Consistent enforcement of policy.
(3) Recognition that redefinition of standards
over time is a possibility.

18. Religious “Cultists” or Zealots
• What is a “cult” is in the eye of the
believer -- religion’s broad reach
under Title VII
• Bona fide religious belief, sincerely
held
• Covers all aspects of religious
observance and practice, including
religious speech

19. Religious “Cultists” or Zealots
• When accommodation and
harassment considerations collide
• Proselytizing and the creation of a
hostile workplace
• Employee (or supervisor) discomfort at
the avidly faithful or proudly atheist co-
worker

20. Transgendered Employees
• Gender identity or expression differs
from conventional expectations of
masculinity or femininity
• Includes transsexuals, transvestites
and androgynes
• Even gay-friendly workplaces can
experience difficulties

21. Workplace Issues
• Pronouns and names
• Dress and grooming standards
• Restroom facilities
• Client / customer
communications

22. Best Practices
(1) Knowledge is power
(2) Be proactive – don’t wait for the issue to
arise and have to play catch up
(3) Transition team protocols and processes
(4) Employee communications and training
(5) Involve the transgender employee
(6) Consistent enforcement of behavior
standards and expectations