Ethical and Legal Implications: Controlling Workplace Speech

I want to start this article, by saying this article contains only my personal opinions. I am not qualified to provide legal advise, and highly advise you not to take this as such. If you really want to get into the nitty-gritty aspects of the legal aspect of what I go into here, I recommend you seek legal counsel. Yes, I am discussing the legal aspect of this sugject, but my lawyer made me put this here. 😉

I feel the title of this blog topic is justifiably long. This topic is so deep, emotional, impactful, potentially controversial, and important that I don’t feel the title does the subject itself any level of justice. I’m going to need to re-edit the beginning of this paragraph about 30 times, I’m sure (currently 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 times, and counting).

How do I begin?

We had a potentially conversational subject come up recently in my workplace, which started as a discussion surrounding an article about encryption (a topic in and of itself, that is very deep and potentially controversial – Hi Australia!), which spun into various directions. Some of the directions the conversation led into, I personally felt was unconstructive and inconsiderate, an opinion which I voiced. While I was opposed to the platform with which they communicated the subject, it was the manner with which their opinions were expressed I made direct comment towards.

It was this conversation which then sparked a further conversation about what a business can or cannot (possibly should or should not), indicate to it’s employees what they can and/or cannot (possibly should or should not) say/talk about. This further conversation resulted in me finishing the day pensively at my desk as my laptop rebooted for an update, thinking to myself and asking myself what I felt about all of it. I left the office that evening debating within myself over some of the following questions.

  1. What are my own opinions and/or values on the subject?
  2. What are the legal implications (or limitations) of such action/in-action?
  3. What are the ethical implications of such action/in-action?
  4. What are the resulting implications upon our practiced values with such action/inaction?

My Opinions…

So, I will (long-windedly) start this blog posting, with a disclosure that my stance on these subjects during the conversations had, and as I’m beginning to write this blog, are as follows:

  1. I believe it is / should be within our rights as managers or owners, to outline how it is we expect ourselves and our staff to communicate with others. I believe this comes down to the standards of behaviour and decorum that we set forth within our organisations. Our office is a place of work as well as that of our profession, and should be treated as such and in a professional manner. Be it while communicating via email, instant message, on the phone, by text, or in person, I believe the medium does not change how these behaviours should be practiced.
  2. I believe it is within our rights as managers or owners, to dictate within our organisation that certain subjects should be considered to be out of bounds. While I believe it is our right, I do question whether this to be in the best interest of the organisation and whether I support this practice as a whole.
  3. Another point I feel appropriate to outline at this time, is I am approaching this discussion from an aspect of a privately held company. I am not looking at this from a perspective a public-sector, civil-servant, or other type of environment. I only have so much time people, and this blog posting is really about the cathartic relief it brings me, and the two people who actually read this (one of them, being myself).

Legal Implications…

So let’s continue this (one-sided) conversation with me typing and nobody reading, and let’s start pulling back the layers of the onion.

To begin with, I live in Canada. We do not have ‘Freedom of Speech’ rights as outlined within a First Amendment like our American neighbours to the south. Instead, we are governed by the Canadian Charter of Rights and Freedoms. Section 2 of this Charter, outlines the Fundamental Freedoms which we as Canadian Citizens can enjoy, which are: freedom of conscience and religion; freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; freedom of peaceful assembly; and freedom of association. Obviously for the sake of this post, we are focusing on the freedom part including expression.

However, there are limits to this freedom.

While protecting our Freedom of Expression, the Charter itself permits enforceable limits. Hate speech, obscenity, and defamation are commonly restricted categories of speech in Canada.

So, as I started to peel back the layers of this question as I see it in my mind, my attention turned heavily as to whether this right to Freedom of Expression applied to one’s workplace. Section 2(b) of the Charter, outlines that since state action is required to have the Charter apply to the situation, Section 2(b) protection would not apply to Private property. It is also interesting to note, that the application of Charter is not automatic by the mere fact that the location in question comes within government ownership. There is a further requirement to determine the type of property it is, which falls into a whole other rabbit hole of case law, I don’t feel the need to reference.

One paragraph of Section 2(b) which I found very interesting, while not necessarily directly supporting or refute the arguement, was as follows.

Other relevant questions that that may guide the analysis of whether expression in a particular location is protected under 2(b) are: whether the space is one in which free expression has traditionally occurred; whether the space is in fact essentially private, despite being government-owned, or public; whether the function of the space is compatible with open public expression, or whether the activity is one that requires privacy and limited access; whether an open right to intrude and present one’s message by word or action would be consistent with what is done in the space, or whether it would hamper the activity (Montréal (City), paragraph 76). There is some flexibility in the analysis and allowing public expression in a particular government-property location does not commit the government to such use indefinitely (GVTA, paragraph 44).

So from a Federal perspective, the legal freedom we receive from the Charter of Rights as I interpret them here, would not apply. Next I turned my review, towards Worksafe BC, and the Workplace Rights we have here in British Columbia (I’m sorry other Provinces / Territories, I have only so much time).

The closest thing I could find that would approach piercing this subject is the BC Human Rights Code, specifically Section 7:

Discriminatory publication
7   (1) A person must not publish, issue or display, or cause to be published, issued or displayed, any statement, publication, notice, sign, symbol, emblem or other representation that
(a)indicates discrimination or an intention to discriminate against a person or a group or class of persons, or
(b)is likely to expose a person or a group or class of persons to hatred or contempt because of the race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation, gender identity or expression, or age of that person or that group or class of persons.
(2) Subsection (1) does not apply to a private communication, a communication intended to be private or a communication related to an activity otherwise permitted by this Code.

Upon reviewing our Human Rights Code, I feel I have drawn upon a sufficient enough base of materials, to draw a reasonable conclusion to the second question I asked above, (What are the legal implications (or limitations) of such action/in-action?), which to conclude I believe the answer to be none. I believe with more confidence now than before, when I say a workplace is within its legal right to restrict the topics which are/are not discussed within the confines of its own entity, and/or the manner with which they are discussed.

Ethical Implications…

Question 3 I ask above (What are the ethical implications of such action/in-action?) is one that is obviously going to evoke individually biased opinions in each of us, and rightly so.

I like to think I was raised to have stong morals and ethics, and I believe I have maintained them, even in situations where it would have been easier not to. At it’s core as we know, ethics is not always a straight forward subject (in my opinion).

For someone who is obviously strongly opinionated (newsflash) breaking something like this question down to it’s ethical implications and stepping apart from one’s values or opinions is not an easy thing to do. This seperation has been one that I have struggled with as I have written this piece, and even as I am typing this paragraph I continue to do so.

If I approach this specific section as an ethical dilemma, which I suppose in many ways it could be considered to be one, that would indicate that either option would be morally imperative.

I confess, this is the section of this blog article where I have been struck the longest. So far, I’ve been sitting on the next paragraph for a couple months now actually. I find the field of ethics intriguingly oxymoronic, as with many things, if you take a scenario and present the ethical question with a different philisophical viewpoint, you can of course tailor the arguement in your favour. Who know, maybe I’ve done that in this article. But then again, would that be thical…???

If I am to present an impartial discussion here, asking the question of ethics itself is questionable in this case I feel. If I were to approach the ethical consideration from an utilitarianism perspective, one would see the very contrasting perspective when compared to an egoistic approach for example.

For the sake of this section, my sanity, and the absurdity that was my initial thought to break this into a multi-part article, I think the most balanced and non self serving approach to the question, would be to look at this much like the Greek philosophers Plato or Aristotle would have, and consider the Common Good Approach, as I think the tendency towards respect and compassion here is what is needed.

When we define the ethical question as that which is around respect and compassion, I feel my position for controlling Work Place speech is justified and doesn’t conflict with my ethical position on the matter. Remember, my issue taken was not the topic being discussed. The problem I had was the platform which was being used (a company-wide chat group) and the fact that the communication could easily be considered to be destructive and not constructive. While I do know some organizations that restrict subject matter that can be discussed (politics and religion being two obvious hotbeds), that is not a step which I feel is in the best interest of our company, and it was not the road I was travelling in my journey that day, or since.

So if I were to summarize the ethical question at hand (What are the ethical implications of such action/in-action?), when approaching this in a balanced and constructive manner, I feel the approach I chose is an ethical one. Obviously is one is looking at it from a different ethical approach, the outcome or opinion might be different. But I’m writing this, and not them..

The Impact on our Values…

In writing this section on Values, I came to the realization of a few things:

  1. We have done a terrible job within our organization of communicating our Mission and Core Values both internally and externally.

    I’m going to work to fix that in the coming months, and try to ensure we keep them at the forefront of how we execute on a daily basis. I hope that in doing so, it has a positive influence on the company as a whole, as well as my coworkers.
  2. While in some ways the most important section, this is probably one of the easiest sections of this entire blog article for me to write.
  3. I feel justified in support of my opinion regarding my stance as originally outlined, given I feel I am not sacrificing any of my values, or the organisation value in that action.

In my work with an industry peer group, we need to publish work articulating and communicating our personal and business values.

When looking over the impact on values below, the position of justification I am taking, is related to my original stance above. I was against the medium with which the discussion was being had, and the manner with which it was had (being destructive, and not constructive).

Impact on Personal Values

ValueSupported or Sacrificed
Family FirstIndifferent / Non-Direct Impact
Equality and RespectSupported
Leadership by ExampleIndifferent / Non-Direct Impact
Integrity Above All ElseSupported

Impact upon Business Core Values

ValueSupported or Sacrificed

My Final Say…

I’m going to close this expression of through, with stating something that I feel is obvious, but given how things can be taken out of context at times, or that an opinion can be taken as fact, I’m going to state the obvious. I am not a lawyer, I am not qualified to provide a legal opinion, and I am certainly no expert on the subject of ethics. If you are looking to create a policy or mandate for your own organisation, while I am very much flattered and would welcome a conversation, I would encourage you to seek legal counsel to protect yourself and organisation, if nothing else.

My hope with publishing this is to make us think about how we communicate, the implications behind the platforms we use to do so, and the manner with which we express said communication. If by the end of this you have actually read through it all, you have not fallen asleep, and maybe you’ve sat back and considered something like this in your life or you have brought up something similar for a discussion of your own, then I think I have accomplished what I was hoping to achieve in writing this.

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