Undoubtedly, this week and for many weeks, months or years to come, a hot topic of discussion among Americans will be the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization overturning Roe v. Wade. This is perhaps one of the most polarizing issues in this country and one of the most significant decisions of this century.
Employer-Driven Policy on Respectful Non-Discriminatory Discourse
Most individuals in the workforce have at least a viewpoint on the issue of whether they are prolife or prochoice, and many have extremely strong feelings either in favor of or against the overturning of Roe v. Wade. Also, many employees fear that the Dobbs v. Jackson Women’s Health Organization decision will lead to the overturning of other laws that directly impact the LGBTQ community.
Employers should be mindful that many employees have strong views on this topic and should, if they have not already done so, establish a policy of respectful, non-discriminatory discourse in the workplace. The policy should be clearly stated to all employees and management.
Title VII and Religious and National Origin Protection
Employees have the right, under Title VII and most states’ human rights act, to be free from discrimination on the basis of religion and national origin. This extends to both direct discrimination and creating a “hostile workplace,” as well as being free from retaliation when complaining about discrimination on the basis of religion or national origin.
In the context of the abortion issue, employees may have strongly-held religious beliefs about when life begins (from conception to birth), or may have strong ethnic views on this same issue. Title VII of the Civil Rights Act of 1964 makes it unlawful to discriminate against someone on the basis of race, color, national origin, sex or religion.
According to the U.S. Department of Justice, Laws Enforced By The Employment Litigation Section (justice.gov), discriminatory practices under Title VII also include:
- Harassment on the basis of race, color, national origin, sex (including pregnancy, sexual orientation, and gender identity), or religion;
- Refusal or failure to reasonably accommodate an individual’s sincerely held religious observances or practices, unless if doing so would impose an undue hardship on the operation of the employer’s business;
- Employment decisions based on stereotypes or assumptions about the abilities, traits, or performance of individuals of a certain race, color, national origin, sex (including pregnancy, sexual orientation, and gender identity), or religion;
- Denial of employment opportunities to an individual because of marriage to, or association with, an individual of a particular race, color, national origin, sex (including sexual orientation and gender identity), or religion; and
- Other employment decisions based on race, color, national origin, sex (including pregnancy, sexual orientation, and gender identity), or religion.
Employers need to be diligent in assuring that discourse on this topic remains being respectful of all employees, and that employees on either side of the debate are not discriminated against on the basis of religion and/or national origin.
Title VII and Sexual Orientation and Gender Identity Protections
On a related note, the same holds true for discrimination on the basis of sexual orientation and/or gender identity. The Supreme Court’s ruling mentions issues such as gay marriage. It is also important that employers recognize that there are concerns the Dobbs’ decision will impact the rights of gay marriage and other similar rights. These same concerns should be dealt with under the same policies of respectful, non-discriminatory discourse.
General Discrimination Based on Political Party Affiliation
There is no general protection against discrimination on political affiliation for private employers under either federal law or Illinois law. This issue is raised here only because there is a belief that viewpoints between prolife or prochoice can be drawn along Republican and Democratic Party lines. While technically an employer has a right to make decisions under federal law based on political affiliation, we caution against doing so. This may still open the employer up to claims of discrimination filed with the EEOC and State Human Rights Commissions, where the “political affiliation” reason is alleged by the employee to cover the true reason for termination: religion, national origin, or sex. For more on this topic, visit Illinois Right to Fire for Political Speech and Conduct – McKenna Storer (mckenna-law.com).
General Safety in the Workplace
Finally, employers should make sure all employees (customers, patrons, independent contractors, etc.) feel safe on the premises. There is the possibility that emotionally-charged statements, or protests, could cause an otherwise peaceful discourse to turn violent. Employers should anticipate that this a possibility, and make sure they are taking measures to protect all employees and invitees on the premises. For further tips for creating a safe environment, visit All Employers Need A Workplace Violence Policy (mckenna-law.com). No company is going to be able to avoid all violence. Nevertheless, with a plan, the company may be able to limit or reduce the level of a violent episode and provide a safe work environment.
If you have any questions regarding this or any other employment matters, please contact Kristin Tauras at email@example.com
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