Political Speech Can Contribute to Hostile Work Environment

By Trevor R. Brice - Skoler, Abbott & Presser, P.C.

July 11, 2022

Political expression is not often a factor in workplace discrimination or hostile work environment claims. This is due to the fact that political opinion is not a protected class and political speech, in and of itself, is not usually discriminatory towards classes that are protected, like religion, age, sex, gender, sexual orientation, or national origin.  However, in a recent opinion, the Massachusetts Superior Court determined that, in certain circumstances, political expression can contribute to unlawful discrimination in violation of Massachusetts law.

In Joshua Brzuchalski v. Digital Guardian LLC, the Plaintiff, Joshua Brzuchalski, worked as a salesman and alleged that he was subjected to harassing treatment by some of his co-workers on the basis of his religion, Judaism.  According to Brzuchalski, those co-workers openly expressed their support for the MAGA movement and certain views that Brzuchalski associated with the MAGA movement, including (but not limited to) a lack of tolerance for Jewish people.  He alleged that, shortly into their employment, he and a Jewish co-worker, Jeremy McNair, were subjected to certain comments Brzuchalski believed to be derogatory stereotypes historically used to describe Jewish individuals.  He did not allege any other overtly discriminatory comments, and instead claimed that those co-workers continued their harassment by talking about the MAGA movement in an intimidating manner and utilizing physical acts of intimidation, such as throwing things at them.  The co-workers also allegedly made derogatory comments about Native Americans and the Black Lives Matter movement.

Brzuchalski claims that he made several complaints to the Company regarding the Defendants’ conduct, but his supervisor just told him to “keep [his] head down,” and the harassment and intimidation allegedly continued, including when one of the co-workers allegedly expressed support for Mel Gibson’s infamous anti-Semitic rant in front of the entire sales floor.  McNair allegedly made a formal complaint to Human Resources about this, but nothing was done and his employment was terminated shortly thereafter.  Brzuchalski, not seeing any action from the Company, made a further complaint to Human Resources, and was told that Defendants were “spoken to” and that “was all that was going to be done.”  Brzuchalski was then told to work from home on a permanent basis.

At some point, Brzuchalski was told that there would be an investigation and, subsequently, that the investigation revealed no evidence of discrimination and that no remedial action would be taken.  Brzuchalski was then told to stop working from home and was moved into a new work station away from the rest of the sales department.  A week later, he was offered severance, and ultimately filed suit alleging, among other things, that he was subjected to a hostile work environment on the basis of his religion.

The Company and the individual Defendants moved to dismiss Brzuchalski’s suit on all counts.   In a victory for Brzuchalski, the Superior Court denied the motion, reasoning, in pertinent part, that he had adequately pleaded that the alleged harassment against him was tied to his religion, and that the Company knew not only about the Defendants’ alleged misconduct but also that Brzuchalski believed he was being targeted on the basis of his religion.

Though this ruling makes some sense in light of the allegations, it creates a potential new wrinkle for employers to look out for when conducting workplace investigations.

Political Speech Can Be Perceived As Discriminatory

If the Court had considered the Defendants’ political comments and conduct in a vacuum, it would have been more likely to dismiss the hostile work environment claim.  Such behavior might constitute bullying, but bullying is not discriminatory in the absence of some connection to a protected class.  And here, it is clear that, the Defendants were expressing their personal political opinions.  In fact, the Court specifically noted this, but it could not consider this behavior in a vacuum – it had to take into consideration the anti-Semitic comments the co-workers allegedly made shortly after Brzuchalski started, some two years earlier, and certain other important factors.  Specifically, the Court noted that, based on the allegations in the Complaint, the Defendants’ conduct was only directed at Brzuchalski and McNair, who were the only Jewish employees in the Company, and they made certain comments that could be offensive to Jewish people, even though the comments were largely political. He also alleged that the Defendant’s comments and conduct left him scared and shaken, interfered with his client calls and ultimately forced him to work apart from his group, and that he made at least five complaints about the same co-workers over a period of two years.  Taken as a whole, the Court concluded that these allegations were enough to state a plausible claim for a hostile work environment on the basis of religion.

Takeaways

If nothing else, the Brzuchalski case gives employers good reason to be wary of brushing aside complaints about political speech in the workplace, and to take the time to consider whether the context in which alleged misconduct is carried out, or other factors, might be suggestive of bias on the basis of one or more protected characteristics.  Employers should also be diligent about enforcing policies against bullying, harassment and intimidation regardless of whether such conduct is based on a protected characteristic.  In this case, whether Brzuchalski was targeted based on his religion or not, his allegations seem to have warranted further action by the Company to address the problem.

The decision also raises some tough questions, including what employers can do to protect themselves if an internal investigation fails to substantiate an employee’s allegations.  In this case, the Company took no remedial action against the alleged harassers, and addressed the employee’s concern only by physically removing him from the work area.  The former makes some sense in light of the investigation’s conclusion, but the latter was arguably retaliatory and certainly did not make the complaining employee feel that his concerns were being taken seriously.  What could the employer have done instead?  Regardless of whether an investigation reveals discriminatory bias or not, employers have an interest in maintaining the peace among their employees and eliminating any type of bullying, harassing or intimidating behavior, and it should have been clear to Brzuchalski’s supervisor and Human Resources that there was some type of conflict between him and his co-workers that needed to be addressed.  Accordingly, unless an investigation completely exonerates the alleged wrongdoers, employers should consider counseling sessions, training, mediation and even disciplinary action when looking for ways to promote respect and resolve conflicts between employees.  Ultimately, employers must take responsibility for ensuring that every employee is treated with respect and able to work in an environment that feels safe.

www.skoler-abbott.com