Howard Levitt: Don't let political tensions destroy your workplace culture

Employers have the right to limit free speech in the workplace, but policies must be applied fairly

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By Howard Levitt and Muneeza Sheikh

Advocacy through social media is at an all-time high. It is not just politicians, academics, lawyers and media pundits posting highly controversial (and sometimes discriminatory) content — everyone has become, overnight, an online advocate. And in the morning, some come to work determined to keep their conversations alive.

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We aim to shed light on the deteriorating state of workplace relationships, many of which took years to build, in the face of a war that does not appear set to end anytime soon.

Leaving aside the risk of employees being fired or disciplined for commentary which is hateful (such as vilifying a group of people) or damaging to the brand, there is the separate risk of political discussion making unpleasant waves that permeate through the workplace.

The current strife in the Middle East has shown that many Canadians have strong opinions they are determined to share online. And, in some cases, at work. Generally, such conversations are controversial and intense. As employment lawyers, we are watching tensions rise as light political chatter has turned into highly politicized office debate. Meaningful workplace relationships are falling apart, employees are becoming demoralized and some businesses are suffering operationally.

Not all discussion around the Middle East conflict is hateful, discriminatory or inflammatory. But much of the discussion is controversial, and many of the views held by Canadian employees have the potential to make their colleagues uncomfortable in the workplace.

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Employers can (and should) curb an employee’s right to free speech at work, particularly where it runs the risk of creating toxicity in the workplace. The rights enshrined in the Charter, which have nothing to do with the workplace, are irrelevant to discussions relating to good-faith policies limiting “free speech” at the office. Employers should have a reason for implementing such a policy and any rules limiting employees’ rights to express themselves freely should be applied consistently. If an employer applies it to speech they don’t like and allows speech that aligns with their personal views, they run the risk of creating a divided and dispirited workforce-even if it is not illegal.

While some provinces protect free speech under human rights legislation, Ontario does not. In Ontario, it is acceptable to ban or limit political chatter in the workplace, and we suggest employers do that before that chatter morphs into debate that can cause irreversible damage to company culture.

Even in the provinces where political discussion is a protected human rights ground, if it causes turmoil, you can shut it down provided you act consistently.

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A workplace policy banning political discussion in the workplace should not be used to silence employees or quash unpopular opinions, but to maintain professionalism.

In the 2021 decision of Ontario Power Generation v Society of United Professionals, an employee was terminated for creating a poisoned work environment after his employer told him to stop raising issues that were making others highly uncomfortable in the office.

While the termination was not upheld, the arbitrator in this case put it best: “It is not for management to decide whether a political or social position is correct on any given issue. The correct answer relating to any political or social conversation in the workplace is that if someone feels uncomfortable or indicates they do not want to be part of the conversation, then the conversation should end.”

Those principles can be applied to the present-day crisis in Canadian workplaces: political conversations often include “various viewpoints” which are not always “mainstream” or “acceptable.” Where they cross the line into illegal expressions of opinion or are damaging to employee morale or, if expressed in a public forum, are damaging to the employer’s brand, employers can respond accordingly, often with dismissal for cause without severance. Where they do not, this case reminds us that the workplace should not be a forum for political discussions.

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Advice from your employer to eliminate political discussions at work in most cases is not only lawful, but entirely appropriate. Employees, after all, are there to work. Anything antithetical to that goal should be verboten.

Howard Levitt is senior partner of Levitt Sheikh, employment and labour lawyers with offices in Toronto and Hamilton. He practices employment law in eight provinces and is the author of six books including the Law of Dismissal in Canada. Muneeza Sheikh is a partner at Levitt Sheikh.

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