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  • March 07, 2022

    'Political Beliefs' and Employer Mask Mandates

    A Madison ordinance prohibits employers from discriminating against employees based on political beliefs. Where pandemic precautions have become highly politicized, employers and employees should consider the ramifications, says Patrick O’Connor.

    Patrick O'Connor

    politics over facemasks

    Many requests for exemptions from COVID-19-related work rules involve religious liberty or medical disability, but what if an employee objects simply on political grounds?

    Madison’s Equal Opportunities Ordinance,1 which protects 24 classes from discrimination, recognizes that employees should not be punished because of “political beliefs” that do not impact job performance. While employers should try to accommodate employees’ “political beliefs” where possible, they need not tolerate activity that interferes with business operations. Madison employees should also be aware of the commonsense limitations of their political belief protections.

    Mask Mandate Opposition

    Two years on, the COVID-19 pandemic has evolved into a political lightning rod. Politically, those who oppose mask and vaccine mandates are typically conservative.2 Opposition to mask mandates is not merely a fringe viewpoint: GOP-controlled legislatures in 10 states have passed laws banning or restricting mask mandates, though courts have struck down some of them, while others are not actively enforced.3

    Patrick O’Connor Patrick O’Connor, U.W. 2015, is an attorney with Hurley Burish, S.C., in Madison, where he focuses on employment law and civil litigation.

    Employers must reasonably accommodate the bona fide disabilities and sincerely held religious beliefs of employees seeking exemption from mask and vaccine mandates, unless doing so would impose an undue hardship on their business.

    But beyond that, employers generally enjoy wide latitude in setting and enforcing pandemic related precautionary rules for their employees to follow. With few exceptions,4 private employers may discharge employees who engage in political activities that they find objectionable or offensive, even when employees do so away from the workplace and on their own time.

    ‘Political Beliefs’

    But certain jurisdictions, including Madison, prohibit employers from discriminating against employees based on “political beliefs,” a term that encompasses not only activities but mere philosophy.5 What are “political beliefs?” 6 The ordinance defines the term broadly:

    Political beliefs means one’s opinion, manifested in speech or association, concerning the social, economic and governmental structure of society and its institutions. This ordinance shall cover all political beliefs, the consideration of which is not preempted by state or federal law.7

    The legislative history of the above language, adopted by Madison’s Common Council in 1977, reflects the city’s intent to ascribe a “very broad” definition to “political beliefs,” which “would include, for example, pro-union or anti-union sympathies, or opinions supporting or disapproving tenant organizations.”8

    Court Decisions and ‘Political Beliefs’

    The existing law construing the ordinance’s “political beliefs” protection suggests that political beliefs must yield when they manifest as activity that undermines the core purpose of the business contract.

    Legal decisions construing political beliefs have involved labor and tenant union organizing. In Northport Apts,9 a Dane County judge rejected the request of a petitioner, a property management company, to limit the definition to “those convictions and conclusions relating to governmental policy in the affairs of state which are held by a person.” The court instead concluded that “politics is present wherever there is a power struggle between competing interest groups for valued social goods or resources.”

    Nevertheless, the court vacated the Madison Equal Opportunity discrimination finding. Drawing from the “discrimination law doctrines of ‘business necessity’ and ‘reasonable accommodation,’” the court found that the respondent’s activity – a tenant strike in which participants withheld their rental payments from the petitioner – undermined the core purpose of the landlord-tenant contract. As the court reasoned, “forcing landlords to accommodate such activity rises above the level of “inconvenience” and would impose an “undue hardship.”10

    In a 2010 case involving a union advocate fired for attempting to organize her employer, the Commission found that the employee exhibited “political beliefs,” but dismissed the case, finding that the federal government has exclusive jurisdiction, under the National Labor Relations Act (NLRA), to resolve disputes regarding termination in retaliation for union activity.11

    The Commission noted, however, that “[h]ad the Complainant’s political beliefs been limited to vocal support for the idea of a union, it is possible that the Hearing Examiner would not find preemption.” While “the NLRA protects those engaged in actual activities related to the formation and maintenance of a union,” it does not necessarily protect mere support for the idea of the union.” In contrast, “[u]nder the ordinance, both action and philosophy are protected.”12

    These court findings indicate that “political beliefs” manifested inside the workplace, on company time, and implicating business prerogatives warrant less protection than those manifested outside the workplace on the employees’ own time.

    ‘Political Beliefs’ versus Undue Hardship

    To obtain protection under the ordinance, an employee must first demonstrate that he or she holds a “political belief,” and then, that the employer took adverse action on this basis.

    Given the ongoing public debate over the propriety of COVID-19 restrictions, an employee could likely demonstrate that his or her opposition to similar measures at work is grounded in “political beliefs.”13

    But even assuming this much, the employee faces an uphill battle. An employer may lawfully take adverse action where it can show that accommodating the “political beliefs” in question would rise above the level of inconvenience and impose an undue hardship on the employer.

    First Amendment Rights

    Case law addressing the First Amendment rights of public sector employees – and the limited nature of those rights – provides a useful background for predicting what types of “political beliefs” the Commission may deem protected under the ordinance.

    Employees working for federal, state, and local government enjoy slightly more political protections at work than their private sector counterparts. Under the First Amendment, governments can discharge public employees for speech made pursuant to their official duties, i.e., while speaking as the government’s employees.

    However, they may not terminate employees for speaking as “citizens” on “matters of public concern.”14The U.S. Supreme Court has defined “public concern” to mean “legitimate news interest” or “a subject of general interest and of value and concern to the public at the time of publication.”15 Courts determine whether an employee’s speech addresses a matter of public concern by considering the content, form, and context of a given statement.16

    Several states, including California17 and Connecticut,18 have legislatively extended such First Amendment-like rights to private sector employees. These laws generally provide an employer with a defense when the speech fundamentally interferes with the discharge of the employee’s job duties.

    California, for instance, typically only protects political speech that takes place or concerns matters outside the workplace.19 For its part, Connecticut law holds that private sector employees are not entitled to free speech protection when speaking about job-related matters in the course of their employment.20

    If the Commission follows this same reasoning when interpreting the ordinance’s “political belief” protection, it likely will distinguish between employer actions that punish employees for “political beliefs” exhibited away from the workplace and on personal time from those which manifest as disobedience of workplace rules, or worse, insubordination.

    For example, an employer would likely not be liable under the ordinance for firing an employee who constantly confronts and or reports co-workers for not wearing masks, thereby causing a disruption and damaging workplace morale.

    Conclusion: Outside Matters

    Employers, especially those in industries where close contact between people is the norm, have a legitimate interest in adopting rules to protect the health of their workforce, the public, and their business.

    In crafting such rules, bosses need not consider the input of employees who might choose or favor a different policy. Nor must employers tolerate insubordination.

    With that said, a Madison employer should certainly think twice about terminating an employee for political views expressed outside of the workplace.

    This article was originally published on the State Bar of Wisconsin’s Labor & Employment Law Section Blog. Visit the State Bar sections or the Labor & Employment Law Section webpages to learn more about the benefits of section membership.


    1 Madison General Ordinance (M.G.O.) § 39.03(1) (protecting the following classes: “sex, race, religion, color, national origin or ancestry, citizenship status, age, handicap/disability, marital status, source of income, arrest record, conviction record, less than honorable discharge, physical appearance, sexual orientation, gender identity, genetic identity, political beliefs, familial status, student status, domestic partnership status, receipt of assistance, unemployment or status as a victim of domestic abuse, sexual assault, or stalking”).

    2 Wolfgang Stroebe, et. al., “Politicization of COVID-19 health-protective behaviors in the United States: Longitudinal and cross-national evidence,” PLOS One, (Oct. 20, 2021).

    3 Andy Markowitz, “State-by-State Guide to Face Mask Requirements,” AARP (Feb. 8, 2022) (discussing mask mandate bans enacted in Arizona, Arkansas, Iowa, Florida, Montana, Oklahoma, South Carolina, Tennessee, Texas, and Utah).

    4 Section 7 of the National Labor Relations Act (NLRA) guarantees union and non-union private sector employees the right to engage in concerted activity, i.e., conversations or orchestrated conduct, for the purpose of mutual aid and protection. 29 U.S.C. § 157. Employers may thus violate the NLRA by firing employees for engaging in political activity that has a nexus to legitimate employee or employment-related concerns, such as that aimed to improve conditions of the workplace.

    5 Besides Madison, New Mexico makes it a felony to terminate an employee “because of the employee’s political opinions or belief.” N.M. Stat. Ann. § 1-20-13. Under New Mexico common law, employers may be held civilly liable to a wrongfully discharged employee as well as criminally liable for violation of the statute. Shovelin v. Cent. N.M. Elec. Coop., Inc., 850 P.2d 996, 1008 (N.M. 1993). A Seattle, Washington city ordinance also prohibits employment discrimination based on “political ideology.” Seattle’s Fair Employment Practices Ordinance, Seattle Municipal Code § 14.04.

    6 See M.G.O. §§ 39.03(1), 39.03(2)(mm), and 39.03(8). The ordinance also prohibits discrimination, against the same classes, in housing and public accommodations within the city’s limits.

    7 M.G.O. § 39.03(2)(cc).

    8 Northport Apts. v. MEOC (Carey),No. 80-CV-2680 (Dane County Circuit Court, 3/12/81) (quoting letter from City Attorney to Common Council describing the ordinance’s proposed definition of “political beliefs”).

    9 Id.

    10 Id.

    11 Zitnick v. Capitol Lakes, EOC Case No. 20092085 (emphasis added).

    12 Id.

    13 But see Stewart v. Justice, 518 F. Supp. 3d 911, 919, 2021 U.S. Dist. LEXIS 24664, *14-15, 2021 WL 472937 (rejecting claim that mask mandates implicate “political speech” because “the act of failing to wear a mask is not sufficiently expressive because there are several non-political reasons why one may not be wearing a mask at any given moment.”) (citing Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47, 66 (2006).

    14 Garcetti v. Ceballos, 547 U.S. 410, 418, 126 S. Ct. 1951 (2006).

    15 City of San Diego v. Roe, 543 U.S. 77, 83-84, 125 S. Ct. 521 (2004).

    16 Connick v. Myers, 461 U.S. 138, 147-48, 103 S. Ct. 1684 (1983) (termination prompted by insubordination that can fairly be predicted to "disrupt the office, undermine authority, and destroy close working relationships …” does not violate First Amendment).

    17 See California Labor Code § 1101 (prohibiting employers from implementing “any rule, regulation, or policy” (1) “forbidding or preventing employees from engaging or participating in politics or from becoming candidates for public office” or (2) “controlling or directing, or tending to control or direct the political activities or affiliations of employees.”) and § 1102 (stating “No employer shall coerce or influence or attempt to coerce or influence his employees through or by means of threat of discharge or loss of employment to adopt or follow or refrain from adopting or following any particular course or line of political action or political activity.”)

    18 See Connecticut General Statutes § 31-51q (“prohibiting every employer from subject[ing] any employee to discipline or discharge on account of the exercise by such employee of rights guaranteed by the first amendment to the [US] States Constitution or [analogous State constitutional provisions], provided such activity does not substantially or materially interfere with the employee's bona fide job performance or the working relationship between the employee and the employer.”)

    19 Ali v. L.A. Focus Publication (2003), 112 Cal. App. 4th 1477, 5 Cal. Rptr. 3d 791 (Cal. Ct. App.).

    20 Schumann v. Dianon Sys., 304 Conn. 585, 626, 43 A.3d 111, 136 (2012).

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    Labor & Employment Law Section Blog is published by the State Bar of Wisconsin; blog posts are written by section members. To contribute to this blog, contact Andrea Farrell and review Author Submission Guidelines. Learn more about the Labor & Employment Law Section or become a member.

    Disclaimer: Views presented in blog posts are those of the blog post authors, not necessarily those of the Section or the State Bar of Wisconsin. Due to the rapidly changing nature of law and our reliance on information provided by outside sources, the State Bar of Wisconsin makes no warranty or guarantee concerning the accuracy or completeness of this content.

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