Managing political activity at the workplace
With election season around the corner, Canadian employers may be faced with navigating disruptive political expression and activism in the workplace. This raises the question of when political speech and activity in the workplace is an employer’s business, and how this risk can be managed.
The rights enumerated in the Canadian Charter of Rights and Freedoms (the charter) often underpin the discussion of employees’ right to express themselves in and out of the workplace. Although the charter only applies to government institutions and their actions, it remains significant in the broader discussion. Charter values occasionally enter the scope of legal consideration in labour and employment law. They also inform provincial human rights legislation.
Of particular relevance, s. 2(b) of the charter sets out the fundamental freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication. Freedom of expression is not an absolute right; as with other charter rights, rights and freedoms may be subject to reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. This means that government restrictions on freedom of expression must be carefully scrutinized to ensure they serve a legitimate purpose and are proportionate to the objective they seek to achieve.
Restrictions on free speech that limit hate speech or expression inciting violence, for example, have been upheld as reasonable limitations on the fundamental right to freedom of expression.
The 1990 Supreme Court of Canada decision R v. Keegstra, 1990 CanLII 24, dealt with a high school teacher, James Keegstra, who was charged under the Criminal Code for promoting hatred against an identifiable group through his anti-Semitic teachings. The Supreme Court upheld the Criminal Code provisions against hate speech, concluding that there are few concerns as central to the concept of a free and democratic society as the dissipation of racism.
Further, the type expression targeted by the Criminal Code provision (i.e. hate speech) was distant from the core of free expression values under the charter. Accordingly, although the criminal provision infringed upon the fundamental right of freedom of expression, the majority of the court concluded it was a reasonable limit.
While the charter constitutes a fundamental document establishing human rights in Canada, it only applies to government action. The majority of human rights complaints before tribunals and courts concern the rights and obligations outlined in provincial or federal human rights legislation.
Human rights legislation prohibits discrimination on the basis of prohibited grounds including in the course of hiring and employment. Prohibited grounds vary between jurisdictions. For example, political belief is a protected ground in some Canadian jurisdictions but not others. Political belief is not a protected ground in the Canada Human Rights Act, which applies to federally regulated employers. It is also not a protected ground in jurisdictions including Saskatchewan, Alberta, Ontario, and Nunavut.
Various iterations of political involvement – such as political belief, association, activity, convictions, affiliation and opinion - are included as protected grounds in human rights legislation in British Columbia, Manitoba, Quebec, Prince Edward Island, New Brunswick, Nova Scotia, Newfoundland and Labrador, Northwest Territories, and Yukon.
Human rights may therefore impact whether and to what extent an employer may regulate political expression and activism in the workplace. It is important for employers to be aware of which legislation applies to their organization.
In some cases, political expression and advocacy at work can disrupt or negatively impact the workplace and the reputation of the employer. Although citizen involvement in politics is important and employees are entitled to freedom of speech and their political views and opinions, carefully and clearly drafted social media policies and codes of conduct may allow an employer to effectively address political activities that disrupt the workplace or negatively impact their business in a real and substantial way.
Activities that may be subject to such a policy include:
However, such a policy will need to be reviewed by a legal professional and carefully tailored in the event that political belief, activity, conviction, affiliation or opinion are protected grounds under the applicable human rights legislation. Notably, these terms are defined and interpreted differently between jurisdictions.
Violence and harassment policies often play an important role in limiting disruptive political expression in the workplace. Employers must take reasonable actions to prevent and otherwise address expression (political or otherwise) that is contrary to human rights, employment, and occupational health and safety legislation. Political speech in the workplace that constitutes hate speech or that results in the harassment of another worker must be addressed by employers.
Political expression or activism by employees in or out of the workplace can be disruptive or risk harm to the reputation of their employer. Given the upcoming federal election, it is recommended that employers consider reviewing their policies.
Where policies are up to date, communications and training for managers, supervisors and employees on respectful workplace policies, social media policies, and codes of conduct may serve as useful reminders to help mitigate any potential issues which may arise.
Amy Gibson is a partner at MLT Aikins in Saskatoon, practicing general labour and employment law. Zoe Johansen-Hill is an associate lawyer at MLT Aikins in Saskatoon, practicing in the advocacy department.
