11-18-2020
By Jill Rorschach, Esq.
Since the 2016 presidential election, we in the U.S. have experienced change to a degree that almost no one could have fully imagined. As my colleague covered in 2017,[1] the increasing polarization across the country led to an eruption of political speech, not only around dinner tables and online, but in the streets[2] and in workplaces. Political discourse within organizations has long been a challenge for employers attempting to balance the needs and interests of their employees against reputational and commercial risks inherent in taking a strong stance on controversial issues in the face of widely diverse customers and shareholders. In the aftermath of the fatal shooting of Michael Brown, an unarmed Black teenager, by a white police officer in Ferguson, Missouri, tensions continued to mount,[3] with members of the Black Lives Matter movement becoming more vocal and mobilized, and counter-movements such as Blue Lives Matter beginning to take shape.[4] These tensions bubbled up into employee relations nightmares in organizations across the country as employees sparred over their views on Black and Blue Lives.
In the wake of this polarization, we have seen corporations of various sizes move to take a stand on social justice. One of the most well-known examples of this corporate activism was Nike’s decision to launch an ad campaign featuring former San Francisco 49ers quarterback Colin Kaepernick, whose NFL career essentially ended after his protests against police brutality took the form of him kneeling during the national anthem at the start of each game. While the fallout over the controversial campaign triggered a boycott of Nike products and rage on social media, Nike’s share price ultimately rose, adding $6 billion to its market value.[5] Other efforts from corporate giants, such as Starbucks’ #RaceTogether campaign, and Gillette’s “We Believe” campaign highlighting toxic masculinity, were met with mixed reviews and some boycotting, but still attracted enormous attention and, arguably, good will from the consumer segment they were targeting. As brand consultant Simon Mainwaring wrote in Forbes in 2015, “As Starbucks has demonstrated, the more brands rise to the challenge of being socially responsible, the more often they will find themselves wading into sensitive conversations that polarize people.”[6]
Fast forward to the fourth quarter of 2020, in the wake of a global pandemic that has kneecapped the economy and disproportionately impacted people of color, massive social unrest in response to racial injustice and police brutality, and an election season that has shaken the foundations of our democracy, employers are facing unprecedented challenges. In addition to the inconsistency of, and political controversy surrounding, mask mandates across the country,[7] employers have grappled with their workers wanting to wear masks that show support for their social and ideological points of view. Employers, particularly those with consumer facing employees, have traditionally prohibited workplace political and ideological speech through dress codes, electronic communications, and social media policies, and many are now faced with the difficult choice of maintaining consistency at the cost of appearing unsupportive of social justice movements. We saw corporations make similar choices in the area of LGBTQ rights. Over the past two decades, many large, national employers evolved over time to help blaze the trail for LGBTQ causes (in contrast with the glacial pace of U.S. legal protections) by demonstrating their support through advertising, corporate advocacy,[8] and even adapting the imagery of their brands.[9] Aside from the unquestionable bottom line impact as well as engagement of this sector of their employee base, these companies argued that recognition of and support for LGBTQ causes was not a political statement, but a human rights issue.
As we now examine issues such as closing the healthcare gap and structural racism, the politicization of demands for racial justice from various groups, often lumped together under the Black Lives Matter movement, presents a dilemma for some employers. In the throes of the trauma and social unrest that followed the killing of George Floyd this summer, employers of all sizes and industries quickly issued statements in support of social justice, many directly espousing support for Black Lives Matter. Some faced criticism for what has been dubbed “performative allyship” or “woke-washing” that struck a hollow chord.[10] Some who made the decision not to issue a supportive statement were met with criticism by those who felt that silence was not an option. While some employers have sought to restrain expressions of support in the workplace,[11] others such as Costco and Starbucks have pulled back in response to public outcry after attempting to stop employees from wearing masks or t-shirts emblazoned with BLM slogans.[12] Other employers have attempted to rein in the messaging by distributing company designed, branded pins and other accessories to those wishing to show support.[13] Still others such as Twitter, Nike, and Target, made changes to corporate policy in a show of support, declaring Juneteenth a corporate holiday.[14] The U.S. Office of Special Counsel, the agency charged with enforcing laws that govern civil servants, issued an opinion in July that allowed federal employees to express support for the Black Lives Matter movement while at work, reasoning that the movement is concerned with issues of racism and therefore is not inherently political or partisan.[15]
An example of the “catch-22” for employers played out in August for Akron, Ohio based Goodyear. A photo of a slide from an internal company presentation was posted on social media by a Goodyear employee, sparking controversy because of its position that Black Lives Matter and LGBTQ Pride were “Acceptable” but Politically Affiliated Slogans or Material, MAGA Attire, Blue Lives Matter, and All Lives Matter were “Unacceptable.” Goodyear attempted to clarify its position, issuing a statement that read in part, “we ask that associates refrain from workplace expressions in support of political campaigning for any candidate or political party, as well as similar forms of advocacy that fall outside the scope of racial justice and equity issues.”[16] Goodyear’s CEO Rich Kramer soon followed up posting a note to customers on social media, reiterating the company’s support for law enforcement (including that it would allow employees to wear supportive apparel) but maintaining that expressions in support of political candidates or parties would continue to be prohibited. President Trump tweeted immediately calling for a boycott of the tire company.[17]
Amidst the online backlash against corporate “virtue signaling,” the hashtag #GoWokeGoBroke has emerged, with the debate, as often happens, erupting in a Twitter war—this time between Dallas Mavericks’ basketball team owner Mark Cuban and Texas Senator Ted Cruz. The two recently scuffled over Cruz’ criticism of the NBA’s decision (in response to players’ demands) to include Black Lives Matter slogans and messaging on team uniforms and on the courts inside its pandemic bubble, where it finished an abbreviated season plagued by lackluster television viewership. Cruz retweeted an article by Fox News commentator Sean Hannity attributing the low ratings for the NBA finals to its support of the racial justice movement, adding #GoWokeGoBroke to his post. Cruz called the NBA’s actions “an effort to 1) insult their fans, & 2) turn every game into a left-wing political lecture,” to which Cuban responded in part, “Since when is a desire to end racism an insult to anyone or political?”[18]
President Trump deepened the political divide over issues of racial justice in a September 22, 2020 Executive Order titled, “Combating Race and Sex Stereotyping,” which effectively banned diversity and inclusion training that covers the concepts of white privilege, systemic racism, unconscious bias, and critical race theory in federal agencies and the military. The Order was expanded to apply to federal contractors and federal grant recipients, including universities and non-profit agencies, and issues a mandate that the Department of Labor establish a hotline for callers to question or complain about diversity training they believe is unlawful or offensive.[19] The Order further muddies the water for employers who do business with the federal government and are now being advised to tap the brakes on their efforts to increase awareness and engagement around these issues among their employees.
While federal agencies and those doing business with federal agencies sort through the impact of the order, EPS has reiterated our commitment to continue our work in providing training that includes space for conversation and reflection to assist in combating racism and systemic disadvantage, and to build respectful, diverse, equitable, and inclusive organizations. In the aftermath of the 2020 elections, as employers of all types grapple with the extreme politicization on so many fronts, EPS consultants are ready to provide support in drafting and updating effective employment policies, facilitating highly interactive Diversity, Equity, and Inclusion and other workplace training, and investigating concerns of inappropriate conduct, including discrimination, harassment, and retaliation.