Detroit-based management side labor and employment law firm Nemeth Law PC covered the topic of Best Practices for Competing Rights in the Workplace at its May session of Raising the Bar, an educational series raising employer awareness of current issues in employment and labor law. Turns out, it was somewhat ahead of its time. From hate speech, the resistance, white supremacy rallies, and diversity memos in the workplace, the national news is replete with examples of the challenges faced by employers today as they juggle the legal and practical implications of employees’ competing rights in the workplace.
Nemeth Law founder Patricia Nemeth says personal issues and beliefs are spilling over into the workplace and forcing employers to act – or not.
“Employees are seeking to assert their rights in the workplace, which becomes problematic for employers when the rights of one employee conflict with that of another employee,” Nemeth said. “Whose rights do you chose to recognize? It becomes a balancing act for employers. Each situation is difficult and employers need to insure they are responding in a legal manner. But it’s new territory for employers for the most part.”
Nemeth cites as examples the recent firing of a Google employee for sharing his views on diversity and fierce reaction to the white supremacy rally in Charlottesville, VA., including the alleged firing of some employees who attended. It goes beyond headlines though.
A devout Christian who believes homosexuality is evil has a right to his personal beliefs but when those beliefs are played out in the workplace and he posts excerpts from the Bible for all to see in violation of the company’s diversity policy, that’s another story. That employee’s religious rights are now in conflict with another employee’s right to work in a hostile free environment under Title VII. The employer is placed in the position of having to choose between a potential lawsuit based on religious discrimination or one based on sex discrimination.
Terry Bonnette, a partner at Nemeth Law, added that employers can be stuck between a rock and a hard place.
“Providing disability or religious accommodation to one employee may seemingly or actually disadvantage another employee,” Bonnette said. “What if an employee is allergic to another’s service dog? Or perhaps what seems like protected speech to one employee creates the perception of a hostile work environment to another? The potential for legitimate counter arguments are vexing more employers each day.”
What to do? Nemeth says employers need to address each situation on its individual merits. Each situation requires a detailed analysis of the competing rights involved and the overarching prevailing rights.
More often than not, the courts are looking to ensure employees are not required to work in a hostile work environment. But can an employer get there without trampling on the rights of other employees? Are there compromise positions? Have they been explored?
‘The competing rights issue is not going away,” Nemeth said. “Employers need to continue to monitor not only what is happening inside their workplaces but outside as well. In addition, employers cannot ignore situations thinking they are unimportant or will just go away. These are the types of situations that fester, grow and become bigger problems.”
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