I drove past a house flying a confederate flag last week and asked myself, “Could I live beside that person?” You can’t do anything about the politics of your neighbour, although you don’t have to invite him or her to your backyard BBQ. The workplace, however is another story. How does an employer deal with an employee’s unpopular politics?
News outlets reported a few weeks ago that Google had terminated the employment of one of its engineers after he wrote and distributed a memo to co-workers commenting on the company’s diversity policies. The memo was alleged to contain generalized statements about women and their abilities in software technology and leadership. Google apparently fired the writer for “advancing harmful gender stereotypes” and breaching its code of conduct. Some commenters have jumped to the writer’s defence, believing that a person’s right to express oneself trumps all else.
How should an employer respond? Such a memo will have a definite impact on the workplace, ranging from insulting and offending co-workers with whom the writer still has to work, to undermining the authority and wisdom of the board who implemented the diversity policy, as by the very act of writing and distributing the memo effectively tells the Google Board that “I know better than you and I want everyone to know that”.
Would such a memo be protected in Canada? The Canadian Charter of Rights and Freedoms includes the freedom of thought, belief, opinion and expression, however it only applies to government action, not private enterprise. Provincial and federal human rights legislation governs the behaviour of private organizations and prohibits discriminatory action on the basis of various enumerated grounds. British Columbia, Manitoba, New Brunswick, Newfoundland and Labrador, Prince Edward Island and Quebec all prohibit discrimination on the basis of some form of political belief or activity. It is unclear, however, whether any human rights tribunal or commission would recognize such a memo as protected political belief or activity.
British Columbia and Prince Edward Island, for example, which each include “political belief” as a protected ground under its HRA, define “political belief” to be related a political party. Manitoba’s definition of “political belief, political association or political activity” is broader as the HRC Policy states it will be “given a broad and purposive interpretation…and must therefore encompass some form of focused discourse about convictions that are linked to the political organization, political functioning or the political nature of society and does not include beliefs or concerns about discrete social, environmental, medical or other such issues.” Quebec defines “political convictions” as “political ideas in which you strongly believe and identify yourself. For example, you may express these convictions by openly supporting a political ideology, by working on behalf of a political party or advocacy group, or by being an activist.” In some provinces such expression of political ideology may very well be protected. Disturbingly, in some minds, the “political” activity of the racist alt rights in Charlottesville might also fit that definition.
Google claims that the memo was a form of harassment. Assuming such a memo meets the definition of harassment, Canadian employers may have a duty to prevent harassment under provincial human rights codes or occupational health and safety provisions or both. But even without any legal duty, employers have a responsibility to ensure a non-hostile work environment for all employees.
In addition, employers may be better able to respond to such behaviour with policies regarding conduct in the workplace or the inappropriate use of any internal workplace communication system to disseminate such personal and polarizing opinions, as the content of the communications would be irrelevant to the fact of the communication itself.
Sample policies for Conduct and Behaviour, Workplace Harassment and Computer, Email and Internet use are available in Human Resources PolicyPro published by First Reference Inc. Request a free 30-day trial here!
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