By: Jacob Oslick
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:
- 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.”
- 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.
- 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.”
- 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.
- 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.