Lawyer explains how workplaces can restrict political clothing, items

Lawyer explains how workplaces can restrict political clothing, items

While the First Amendment upholds the freedom of speech, it has limitations, especially in the workplace.

As News 3 Now first reported Wednesday, Felix Caraballo feels singled out for not being allowed to wear his Make America Great Again hat to work as a city of Madison street sweeper while he says co-workers can wear Medicare for All pins.

“I know there’s rules,” he said. “I want them to apply to everybody.”

To dive into workplace rules, News 3 Now spoke with area lawyers, including civil rights attorney Jeff Scott Olson.

“The Supreme Court has said that anything that has the potential to disrupt the workplace can be prohibited,” he said.

Olson explained private workplaces aren’t governed by the First Amendment, meaning employers can tell their employees not to wear or display political material.

“No one’s ever gotten around to passing a law or constitutional provision that requires private employers to afford their employees any degree of freedom of expression in the workplace,” he said.

Public employers are governed by the First Amendment but can still impose restrictions.

“The thing the government can’t do is it can’t discriminate on the basis of content,” Olson said. “In other words, it can’t say the Republicans can wear their Republican slogans and the Democrats can’t wear theirs and vice versa. It has to treat everyone the same regardless of message.”

So where does that leave Caraballo? As a government employer, Olson said the city can’t discriminate based on content.

City assistant attorney Steve Blist said Wednesday that the MAGA hat is directly associated with one candidate’s campaign, whereas a Medicare for All button is not, so the hat violates the rule that no employee can wear or display campaign material.

If the phrase “Medicare for All” became a slogan for an upcoming presidential candidate, Brist said, “then it would be inappropriate to wear at work.”

Still, Olson recommends caution.

“That’s going to be something that the powers that be in the city are going to have to look carefully at,” Olson said. “It’s not going to be able to get away with discriminating on the basis of content.”

Brist said there have been no complaints filed regarding any Medicare for All buttons recently. He also said that over at least the past 10 years, no city employee has been disciplined because of the rule banning campaign material in the workplace.

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