United States: Future Employer: Store Politics

When asked to get involved in a 1996 Senate race on behalf of a Democrat, basketball great Michael Jordan declined.  "Republicans buy sneakers too," Jordan was quoted as saying.  In other words, Jordan did not want to alienate millions of potential customers by pushing a political agenda.

Today, far fewer businesses follow Jordan's example.  A few have overtly aligned with a political philosophy.  Others have taken public stands on specific issues, such as the hundreds of corporations and employer organizations who filed an amicus brief asking the Supreme Court to strike down bans on same-sex marriage.  Still others have made arguably "political" choices regarding company policies, like retailers who recently stopped selling certain semi-automatic rifles—a decision that many interpreted as supporting gun control efforts. 

Although both Republicans and Democrats buy sneakers, some businesses have learned that they can reap more sales by explicitly aligning with their customers' political views, and thus fostering brand support.  For instance, a high-end fashion store in New York's West Village may gain positive publicity and customer loyalty by advocating for progressive causes important to most of its target market.  Or a retailer faced with a customer boycott may rationally choose to "give in" and adopt policy changes sought by the boycotters, if the boycotters have more market influence than the consumers a policy change will offend.  Indeed, some companies have even placed politics at the center of their marketing strategy, such as Manhattan Mini-Storage, whose left-leaning advertisements haven been ubiquitous on New York's subways for many years (i.e., "Our prices are falling faster than GOP approval ratings").  In short, businesses have increasingly learned that they can profit by promoting politics that will alienate some potential customers, if their political activities also help them sell more stuff to other potential patrons.  

Beyond all that, retailers and other businesses often can't avoid politics even if they tried.  For instance, a decision to carry or continue carrying Ivanka Trump's clothing line could be interpreted as supporting her father's policies.  But refusing to carry her clothing line, or deciding to stop carrying it, could equally be interpreted as "anti-Trump."  

Occurrences of employers taking public positions on politics—and even a general belief that it may be appropriate for employers to take a public position—have grown alongside a more prevalent social media presence and accessibility to public opinion (including hashtags and the risk of #goingviral). Even the possible association of employees (and their beliefs) with their employers through these social media sites have encouraged companies to publicize either a political belief or an employment decision.  Last year, for example, a Berkeley-based hot dog eatery publicly accepted the voluntary resignation of a former employee after he was identified as an attendee at a gathering of white supremacists in Charlottesville, Virginia on a Twitter Account, "Yes, You're Racist."

With that in mind, here are some ground rules about what retailers can and cannot do regarding politics:

  1. Retailers can take political stands, give money to politicians, and speak freely about political issues.  In Citizens United v. Fed. Election Com'n, the Supreme Court confirmed that the First Amendment protects a corporation's right to engage in political speech, including by advocating for specific causes or candidates.  Notably, speech is generally protected even when certain conduct may be prohibited.  For instance, in Elaine Photography, LLC v. Willock, the New Mexico Supreme Court held that—although antidiscrimination laws required a wedding photographer to photograph a same-sex wedding—the photographer could still "post a disclaimer on their website or in their studio advertising that they oppose same-sex marriage."
  2. Retailers can make business decisions based on their politics, including what products they carry (including products promoting a political agenda), and what corporate policies they adopt.  But, when doing so, businesses must make sure that they otherwise comply with applicable laws.  For instance, a business that imposes its own minimum age restrictions on firearms may run afoul of certain state or local statutes that require public accommodations to treat customers equally regardless of age.
  3. Retailers generally can exclude customers and guests based on their political views (for example, a  New York bar recently won a lawsuit against an excluded Trump supporter).  Most jurisdictions place no restrictions on public accommodations declining business based on politics.  But a few exceptions exist.  The Seattle Municipal Code, for instance, prohibits "a place of public accommodations" from "harassing, intimidating, or otherwise abusing any person" based on "political ideology."
  4. However, most retailers cannot base employment decisions on their employees' politics.  Although the laws vary considerably from jurisdiction-to-jurisdiction, at least 30 states have statutes that may restrict an employer's ability to base employment decisions on an employee's off-duty conduct generally, or on political beliefs or political activities specifically.  For instance, New York Labor Law § 201-d prohibits discrimination based on an employee's "political activities" or "recreational activities" outside of work.  And California Labor Code § 1102 prohibits an employer from threatening employees regarding "any particular course or line of political action or political activity," while California Labor Code § 96(k) prohibits employment actions based on an employee's "lawful conduct during nonworking hours away from the employer's premises."  Federal law, likewise, may indirectly provide some protections against political activity discrimination—such as through a disparate impact theory (as political preferences are highly correlated with race, religion, and other protected characteristics). 

    These employment protections suggest that businesses should act cautiously when engaging in any conduct that could be deemed "political."  There is nothing inconsistent with a business promoting a particular political agenda yet treating employees with different viewpoints equally.  But enterprising plaintiffs' lawyers may try to use statements by the business or its management-level employees to raise questions about the motivations behind adverse employment actions.  To this end, before a business takes what might be understood as a public stance on an issue, it may be advisable for it to reiterate to its employees that — although it expects employees to do their jobs and comply with company policies — it respects that employees may have differing viewpoints and that it will not let politics influence its employment decisions.
  5. Finally, retailers can fight politicians who base zoning decisions or regulatory approvals on the retailer's politics.  The First Amendment prohibits the government from discriminating based on political beliefs or advocacy.  And, often, politicians open the door to such suits by announcing their intention to oppose a company's right to do business based on the business's perceived political agenda or "values" (e.g., the unsuccessful effort by a Chicago alderman to stop the opening of a Chick-fil-A). 

Mixing politics and business can be dicey.  But it is often unavoidable, and sometimes can be profitable.  Moreover, in a social media world, it may be necessary to address building public sentiment when an issue impacts your business.  Whether a business wishes to get political or not, the end goal for most should be the same: sell the most sneakers possible, while complying with the law. 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
Kramer Levin Naftalis & Frankel LLP
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Kramer Levin Naftalis & Frankel LLP
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions