Political Affiliation Discrimination occurs when an employee is treated adversely due to differing political membership or political views than his or her employers. Political Affiliation is not traditionally a protected class, but with politics so controversial, political affiliation discrimination is on the rise.
There are only three jurisdictions in the United States that explicitly bans political affiliation and activity discrimination, California, D.C., and New York. New York does not cover political affiliation discrimination, only political activity discrimination. Federal law discrimination law does not cover political affiliation or political activity. However, many states prohibit employers from influencing the votes of their employees.
What’s the Difference Between Affiliation and Activity?
Since California and D.C. bans political affiliation discrimination, while most states do not, it’s important to understand the distinction. Affiliation means claiming membership with a certain political party or ideology. Activity means engaging in certain political acts, such as voting, running for public office, or campaigning. Affiliation means you can be part of a union or political group without your employer threatening or harassing you about your membership. Activity means you can go to a rally, march, or protest outside of work hours without fear that your employer may retaliate. The former is mostly protected in California and D.C., but the latter has some protection in states like Ohio, New York, and Michigan. Check with a local employment lawyer to determine exactly what kind of protections, if any, your state offers.
However, these laws are limited by whether the employee’s actions interfere with the employer’s business. The litmus test is whether the employer has a legitimate reason for his or her actions. If you are late to work because you attended a protest, the employer can terminate you for being tardy (assuming the employer punishes every employee who is tardy). Similarly, if you disparage your employer on social media, they can terminate you for generating bad public relations, regardless of the actual content of the social media post itself.
Politics as Pretext for Illegitimate Motives
Due to the legitimate reason doctrine, it is actually very difficult to bring a successful suit against a private employer for political activity or affiliation discrimination. Most employers can find a legitimate reason for terminating a problematic employee that has nothing to do with politics. However, if the legitimate reason is a pretext, or cover, for wrongdoing by the employer, the employee’s case would likely be successful.
Even though political action or affiliation is not covered in most jurisdictions, discrimination against race, gender, and religion is covered. An employee in Ohio or Virginia can be fired for being part of Black Lives Matter or an alt-right organization and political affiliation wouldn’t be significant legal barrier to the employer’s decision. However, that same employee could argue that his politics are a pretext for being fired because of his race or religion.
On the other hand, this is a double-edged sword because employers can use it as well. If an employee is making discriminatory remarks about Muslims or Christians, the employer could fire that employee for creating a hostile work environment for those religious groups. It doesn’t matter what the employee’s politics are if the employee’s remarks are disrupting the office.
Similarly, if the employee’s politics are directly related to workplace conditions or if the employee is reporting that the employer is violating a law, the employer would not have legitimate grounds for dismissing the employee. In this context, the employee is a whistleblower who is reporting illegal action on the part of the employer.
Many employees are confused when they are fired for expressing a certain political view. Isn’t this a free country? Don’t they have a right to free speech?
Constitutional law, including free speech, is law against governments. While presidents, judges, lawmakers, and police might be restricted by free speech, private employers are not. Even if you work for a government entity, there are often legal restrictions on free speech that do not violate the constitution. If employees want legal protection from their employers, a government entity must pass a law protecting the employees.
As mentioned earlier though, most states have laws protecting employees’ right to vote. Although free speech and political expression isn’t usually protected, employees may have other avenues to protect their rights.