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The volatile and divisive domestic political climate continues to spill over into the workplace, forcing employees and employers to consider a whole host of issues around First Amendment free speech rights and other legal considerations.
In the latest episode, two Smoothie King employees have been fired after refusing to serve a man wearing a President Donald Trump hoodie, again putting political free speech and workplace rules in the spotlight.
Erika Lindemyer and her husband, Jake, went to the smoothie franchise’s Ann Arbor outlet, and were denied service by two employees who said they were uncomfortable because of the Trump hoodie, according to a video Erika Lindemyer posted online.
In the video, she told one of the employees: “We were just wanting a smoothie, and you literally looked at us, and I asked you if everything was okay, you said we don’t feel comfortable serving you because of my husband’s hoodie. That is discrimination.”
“Okay, well, have a great day,” the employee said back.
The other employee said: “Trump discriminates us.”
Both employees appeared to be people of color.
The exchange did not end there. Jake Lindemyer responded with a low-level threat, saying: “Good luck maintaining your employment.”
When he told one of the employees that discrimination is a crime, the employee said, “We have the right to refuse service.”
“Not due to political views, though,” Jake Lindemyer replied.
And he’s right. Sort of. Under US federal law, stores and restaurants can refuse service to anyone, provided the refusal is not based on discrimination against a protected class, such as race, color, religion, national origin, sex, or disability. Businesses may legally refuse service for safety reasons, such as disruptive behavior, or dress code violations, but not to exclude specific protected groups. And that includes MAGA fans.
Political discrimination and brand standards
Lindemyer’s video got 4.5 million views on Facebook in two days and was shared across social media turning it into a rage-bait, political hot potato.
Smoothie King responded to the incident, writing in a statement shared to social media, “As a brand, Smoothie King is committed to ensuring our stores are a place free of discrimination of any kind, where every guest and team member is treated with care and respect.
“Following an investigation into an incident involving a guest who was refused service at a franchised location in Michigan yesterday, the franchise owner has taken immediate action and the two employees involved are no longer with the business.”
Smoothie King HQ, along with the owner of the Michigan franchise location, has reached out to the customer to apologize.
“The local owner is also taking further action and enforcing mandatory retraining for all employees that outlines our guest experience standards,” the firm wrote.
It does raise the question as to whether the two employees might have been reprimanded and then given new training. Can you be retrained to adjust your political views? In North Korea perhaps. But it’s obviously more a case of keeping personal politics outside of the workplace.
When people bring politics in the form of a Trump hoodie into your workplace, that’s when that training needs to kick in.
Refusing service and employee conduct
A separate perspective emerged through social media. In a video posted on TikTok by a girl claiming to be an employee, she said her co-worker told the woman that her husband’s Trump merchandise was making them “uncomfortable.”
“I told them…I said, ‘We have the right to refuse service. Have a good day.’ They did not want to listen to that,” the girl said.
She also posted another video showing her view of the incident, in which she tells the couple, “We’re not serving Trump supporters.”
The phrase “We have the right to refuse service” now sits at the center of the dispute. The customer’s response (“Not due to political views”) in the original exchange challenges that position.
In situations such as that, Americans will often defer to their First Amendment rights, which covers both sides of this argument.
But…
According to law firm Jackson Lewis, the First Amendment’s protection against government regulation of speech does not extend to private employers, which gives them significant flexibility in regulating political expression in the workplace. The caveat, however, is that there are a host of other laws which have a bearing on employees’ political free speech rights, including:
National Labor Relations Act (NLRA)
Anti-discrimination laws
Laws concerning off-duty conduct
So, it’s not quite as straightforward as being able to say or do what you want.
All is not lost, however. The firm has a six-point advisory plan to help employers and employees navigate freedom of speech issues in the workplace.
1. Develop clear policies
Create and communicate clear policies regarding political expression in the workplace in compliance with applicable labor and employment laws. These policies should outline acceptable behaviors and the consequences of violating them.
2. Apply policies consistently
Ensure that any policies related to political speech are enforced fairly and consistently.
3. Promote inclusivity and respect
Establish and reinforce a company culture that values diverse perspectives and inclusivity. Employees who understand and appreciate these concepts are more likely to respect views that differ from their own.
4. Training and education
Offer regular training to employees and managers on how to handle political discussions in a way that minimizes conflict and fosters an inclusive environment.
5. Monitor off-duty conduct laws
Stay informed of applicable state laws on off-duty conduct to avoid inadvertently violating an employee’s rights. Regular legal reviews and consultations with local counsel can help ensure compliance.
6. Focus on company mission and values
Encourage employees to align their workplace behavior with the company’s mission and values. Avoid allowing political discourse to detract from the employer’s goals or disrupt its operations.
