Can employers prevent employees from taking a stand on the war in Ukraine or force them to support the employer’s position? | Whitman Legal Solutions, LLC


The Swiss Charterhouse of Inttingen recently canceled the March 20 concert of Russian cellist Anastasia Kobekina. Kobekina posted on Instagram that her cancellation notification stated that “the reason is the artist’s Russian nationality, but not the young musician herself. Anastasia Kobekina vehemently condemns Russia’s war against Ukraine.” Kobekina had posted on social media, perhaps at risk to herself and her family: “I cannot and will not allow this war to be waged in my name as a Russian citizen. I am devastated. This tragedy should be stopped as soon as possible. Peace must be restored.

Russian pianist Alexander Malofeev also had his Canadian concerts canceled (although he was allowed to perform in Buffalo, New York). A 20-year-old, Malofeev, who has family in Ukraine, expressed concern that his family in Russia would suffer if he made an overtly political statement:

I am now contacted by journalists who want me to make statements. I feel very uncomfortable about this and I also think it may affect my family in Russia. . . .

It would seem that there are obvious conclusions: no problem can be solved by war, people cannot be judged on their nationality. But why, in a few days, has the whole world fallen back into a state where everyone has the choice between fear and hatred?

I understand that my problems are very insignificant compared to those of people in Ukraine, including my relatives who live there. The most important thing now is to stop the blood. All I know is that spreading hate won’t help, but will only cause more pain.

These musicians probably had contracts specifying their rights and obligations. They were not employees. Since the concerts were not taking place in the United States, American law would not apply.

What if the musicians had been employees working in the United States? Could an employer fire them just because they are Russian? Or would US employment discrimination laws protect them? This article discusses the legal issues associated with companies firing Russian employees to make a political statement against the war in Ukraine.

Attitudes towards “Russian” companies in the United States

Across the United States, companies perceived to be Russian are being targeted, presumably by people opposed to the war in Ukraine. The Russian House restaurant in Washington, DC, owned by a US citizen, received hate calls, was vandalized and anti-Russian signs were left behind.

A Russian restaurant in California has received bomb threats and negative reviews online, with some saying the restaurant supports Russia’s invasion, even though the owner is an Armenian who has lived in the United States for 24 years, argues Ukraine and that half of its employees are Ukrainians. A store in Columbus, Ohio, co-operated by two immigrants, one Russian and the other Ukrainian, which sells food from Eastern Europe, has received threatening phone calls. Anti-Russian sentiment has gone so far that a restaurant named after the French-Canadian cheese curd and gravy dish, poutine, was vandalized because the name is similar to Poutine.

Employees of Russian heritage working in the United States

It’s clear that no matter our position on the war in Ukraine, now is not the right time to have a company that seems to support Russian culture. And now may not be a good time to be (or be seen to be) of Russian descent – ​​even though a Suffolk University/USA TODAY poll showed that Russian and Ukrainian Americans are overwhelmingly oppose Russia’s invasion of Ukraine.

Suppose an employer has an employee with a Russian sounding name. The employee may be a US citizen, or even born in the US, and they may not even be of Russian descent, but customers assume they are Russian because of their name. Although one would like to think that a name wouldn’t matter, given the Putin/Putin confusion, it seems that some people will react to a name that sounds Russian.

What if the employer is concerned that having this employee will hurt their business and move them to a non-customer-facing position? Or even fire the employee because of his name? Is it important for the employer to do this proactively or respond to customer complaints? What if the employer receives threats of violence if they retain the employee?

Federal employment equality laws prohibit discrimination based on national origin, including ethnicity. The EEOC’s position is that treating someone unfavorably because of their ethnic or national origin is illegal, even if the individual is not of that origin. Thus, an employee who is reassigned or terminated because he is (or is believed to be) of Russian origin would have a prima facie claim of employment discrimination against his employer.

But once an employee has stated their prima facie case, the employer has the opportunity to articulate a legitimate, non-discriminatory reason for the adverse action. Are customer complaints about an employee’s Russian heritage a legitimate reason if the customer’s complaints reflect bias based on ethnic or national origin? No, accepting customer bias does not legitimize unlawful discrimination.

Political views in the workplace

Many people claim a “First Amendment right” to express their opinions. But the First Amendment applies only to government action, not to corporations or private employers. Employees who speak up about their views on the war in Ukraine — or any other political issue — can generally be disciplined or fired for acting, no matter how popular or “politically correct” that view is.

Employees who express opinions about the war in Ukraine have learned this the hard way. Recently, a substitute teacher in Virginia was suspended after apparently expressing support for Russian President Putin and suggesting students read Sputnik News. And a Wisconsin assistant city prosecutor who voiced his support for Putin on Russia Today television has found himself out of a job. And both of these people worked for government employers, so maybe the First Amendment applied to their speech.

However, a private employer has wide latitude to limit political speech in the workplace. Under the National Labor Relations Act, employers cannot restrict speech to other employees regarding terms of employment, collective bargaining efforts or other work-related issues. But employers can generally control speech, including political speech in the workplace, as long as the discussion about the war in Ukraine is not work-related (for example, worrying about the war might affect a client in Ukraine).

If a private employer restricts workplace discussions about the war in Ukraine, employers should not adopt content-based restrictions. For example, allowing employees to express support for Ukraine but not Russia could constitute unlawful discrimination. Yet even that is unclear.

A similar issue has arisen when employees have been disciplined for promoting Black Lives Matter (BLM) in the workplace, often by wearing BLM buttons or patches. Generally, employers with broad, content-neutral policies (eg, a strict and consistently enforced dress code prohibiting buttons or patches other than those issued by the employer) fared better.

Employers who targeted BLM but allowed other forms of expression were vulnerable to claims of racial discrimination. But a court said if an employer disciplined all employees wearing BLM attire, regardless of employee races, a general BLM-specific ban could be allowed.

However, the legal question is far from settled. For example, litigation is ongoing regarding Whole Foods’ banning of BLM promotional items (and all other non-Whole Foods items) at work. The NLRB argues that Title VII applies to a general ban, which covers BLM items, even though the ban does not target a specific protected class, but at least one court has decided otherwise.

Think of Alexander Malofeev, who felt compelled to comment (presumably negatively) on the Russian invasion of Ukraine. His internal debate is obvious – he doesn’t support the Russian war effort, but if he says so publicly he risks harming his family in Russia – a real burden for a 20-year-old. Yet, by remaining silent, he has jeopardized his international career.

What if an American employer required its employees to express their support for Ukraine or to support the Russian invasion? What if the employer is just waiting for a token speech by forcing employees to wear a pin of the Ukrainian flag?

Some states prohibit employers from imposing the employer’s political views on employees and from retaliating against employees who do not support the employer’s political cause. But in other states, employees may have to support the employer’s position or risk losing their jobs.

Federal law does not protect employees from a consistently applied employer policy mandate unless the requirement discriminates against or harasses employees of a protected class. For example, it could be considered harassment of a Russian employee because of their national origin to put up posters describing Russians as demons. And it would probably be unlawful discrimination to require that only employees with Russian-sounding names express their support for Ukraine.

Carry

Employees should remember that they do not have First Amendment freedoms in a private workplace. But on the other hand, employers may need to strike a delicate balance between employee rights and customer demands.

When a company receives threats for supporting a cause, employee safety or the sustainability of the business may even be of concern. An employer cannot discriminate against a protected class to accommodate customer preferences. It is unclear whether measures to prevent possible serious harm to persons could be a non-discriminatory legitimate reason for disparate treatment.

Consistently applied content-neutral employer policies that do not disproportionately affect employees of a protected class are most likely to be upheld. But where a content-neutral employer policy restricts the ability of employees to support a cause related to race, national origin or another protected class, the law is unclear.

This series draws on Elizabeth Whitman’s experience and passion for classical music to illustrate creative solutions to legal challenges faced by businesses and real estate investors.

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