Freedom of speech in the workplace
By Joe DeLoach, OD, FAAO
Sept. 18, 2024
The concept of freedom of speech in the workplace is important, complex, changing and dangerous – all wrapped in a variety of laws and opinions from the Equal Employment Opportunity Commission, OSHA and tied with a bow from the First Amendment of the U.S. Constitution.
Meaning of First Amendment
Let’s start with the First Amendment: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Ratified on December 15, 1791, the application of these words in a world far more complex than the Founding Fathers likely ever imagined can be a daunting task.
In general, the rights related to “free speech” have amplified over time. There are limits, and in the workplace environment, this does not mean an employee can simply shoot their mouth off regarding anything, any time they want…or can they? More later.
Freedom of Speech Limitations in the Workplace
While open expression is a great idea, when words or deeds create a hostile work environment, they are generally excluded from the protections of the First Amendment.
In the workplace, two subjects compromise the bulk of problems associated with free expression – religion and politics.
The 2020 presidential election year saw a significant increase in workplace violence directly attributed to the passion and perceived rights of employees associated with their political beliefs.
As what appears to be an even more divisive election looms in November, understanding your rights and obligations as an employer has never been more important. Your obligations stem from several laws.
First, the concept of Constitutionally guaranteed freedom of speech has always had limitations. As stated, words and deeds creating a hostile or dangerous work situation are not protected under the First Amendment.
Other statutory exemptions from the protection of free speech include words and deeds related to obscenity, pornography, defamatory speech, false advertising, threats and “fighting words.”
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While you may allow simple political discussions within the confines of the workplace, “simple” discussions are becoming rare. You have every right to not allow discussions related to topics that can, or are likely, to create any semblance of workplace violence.
What Do EEOC & OSHA Say About Freedom of Speech at Work?
Second, the Equal Employee Opportunity Commission has a thing or two to say about free speech.
Historically, EEOC rules limited the rights of employees related to words and deeds that could create a hostile work environment.
In April 2024, the Commission issued new guidance that provided very broad rights related to employee freedom of speech, even potentially loosening the long-standing limitations on words and deeds that can lead to a hostile environment or violence.
While currently in effect, the broad stroke of the EEOC is being challenged at the federal and state level. Time will tell, but for now, the laws from Washington have never been less restrictive regarding what an employee can say on the job.
Third, OSHA even chimes in on this issue.
Under OSHA’s General Duty Clause, employers have a legal obligation to provide a safe place for employees to work. This includes obligations to ensure employees are protected from discrimination, harassment and violence on the job. While devoid of specific rules and regulations, the overriding concept from OSHA is clear – employers must protect their employees from harm, even from other employees.
Last, states can have specific laws related to freedom of speech in the workplace. In general, states with Democratic leanings tend to have more protections for freedom of speech. No state has a law that overrides the obligation of an employer to provide a violence-free workplace.
In 2024, California became the first state to mandate specific workplace violence policies and training for employers and employees.
So, What Does a Practice Owner Do?
Each employer has an obligation to protect their employees from harassment and violence. If the employer determines that the limitation, or even elimination, of discussions in the office related to specific issues assists in that obligation, it would appear they have every right to not allow those kinds of discussions in the office. This can also include limitations or elimination of employee “campaigning” for individuals or ideals on the job.
Open discussion with employees is always the best course of action, explaining that the workplace is simply not the best forum for discussion of highly contested, passionate or divisive issues. Save those discussions for happy hour!
Joe DeLoach, OD, FAAO, is CEO of Practice Compliance Solutions. and former Clinical Professor at the University of Houston College of Optometry To contact: : joe@practicecompliancesolutions.com
This article was created using several editorial tools, including AI, as part of the process. Human editors reviewed this content before publication.