Employment Practices (as of July 1, 2022)

Q: An employee comes to work with an anti-abortion message written on his t-shirt. When other employees complain, he responds that his First Amendment right to free speech is being violated. What should the employer do?

A: A dangerous, knee-jerk reaction would be to tell the employee to go home, change his shirt and come back to work. While the First Amendment does not protect speech in a private workplace (see my prior post on this topic), the employer should proceed cautiously.

Title VII of the Civil Rights Act and similar state laws protect employees against religious discrimination. It is quite likely that the t-shirt wearing employee has strong religious beliefs about abortion. Sending him home to change and other employment action may be viewed as discrimination. A better course would be to take a step back (breathe . . .) and call your employment attorney. Investigating the situation carefully and thoroughly first, with help from an attorney, could help you diffuse the situation and avoid potential liability.


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