According to a recent article by Yahoo, Trump supporters fear that if they demonstrate their affinity for the presidential candidate at work, they will be subject to disfavorable treatment. And depending on where they work, this very well may be true. One thing that can be said across the board for non-governmental workplaces is that wearing politically-charged attire or accessories could get you fired.
We’ve seen employees fired in the past for expressing their political affiliations. In 2004, for instance, Alabama-based Lynne Gobbell was fired from her job at Enviromate, a privately-owned company that makes housing insulation, for driving to work in a car with a bumper sticker supporting the Democratic ticket of John Kerry and John Edwards. The company’s owner was a Bush supporter.
The most common response to this is: But what about free speech and freedom of expression? Well, in instances like this, the First Amendment, the legal doctrine from which free speech and freedom of expression are derived, is not helpful. The First Amendment (something that is very widely misunderstood) only protects against governmental interference with expression. The notion of freedom of speech/ freedom of expression does not apply to individuals employed by non-governmental entities. So, private companies can limit political expression at work, and “free speech” would not be a valid argument.
With this in mind, the question of wearing politically-significant garments and accessories to work presents some interesting issues. Most commonly, we see issues regarding work attire in connection with religion – most notably, the recent case that went before the Supreme Court in connection with the Abercrombie dress code and accommodations based on religion.
We know that employers cannot discriminate on the basis of race, color, sex, religion, and national origin (per Title VII of the Civil Rights Act of 1964 – note: politics does not fall within this list) and as we saw in the Abercrombie lawsuit, this does apply to clothing. Despite Title VII, private-sector employers (as distinct from governmental ones) have quite a bit of leeway in dictating employee appearance in the workplace. They can – in many cases – require employees to wear uniforms. They can require employees wear clothes that convey a particular image about the company, and on the flip side of that prohibit the wearing of clothes that offend common sensibilities of good taste. These are all covered in the employer’s individual dress code policies.
In addition to potentially causing turmoil between employees, such visible demonstrations of party affiliation may not be acceptable at businesses where there is contact with the public or where the company otherwise sees itself as needing to show political neutrality. Thus, employers can bar it for that reason.
So, can an employer ban employees from having discussions related to union activity? No, that is a protected right of employees in both the public and private sectors. Can an employer ban an employee from wearing a union pin? No (save for some very limited special exceptions). Can an employer ban an employee from wearing a Trump hat? Technically, yes.