Can Employers Discriminate Based on Political Beliefs or Affiliation?

Making decisions based on an employee's political beliefs or activities might violate state laws.

Can an employer fire or discriminate against an employee based on political beliefs? You may be surprised to learn that, for many employees, the answer is yes. Federal law does not protect private employees from discrimination based on their politics. However, some states do protect employees from certain types of political discrimination. And, an employer may not use an employee’s politics as a pretext for discrimination based on a protected trait, like race or religion.

What Is Discrimination Based on Political Beliefs?

Discrimination based on politics happens when an employer makes job decisions because of an employee’s political beliefs, party affiliation, or civic activities. An employer that, for example, refuses to hire applicants who vote Republican, fires anyone who supports gun control, or demotes someone who runs for the local school board is engaged in political discrimination.

Federal Laws Don’t Prohibit Political Discrimination

Not all forms of discrimination are illegal, however. It is illegal under Title VII of the Civil Rights Act of 1964 for employers to make job decisions based on race, color, national origin, religion, and sex. Other federal laws prohibit discrimination based on age, disability, and genetic information. However, political views aren’t covered by these laws and the laws of most states. This means employers are free to consider political views and affiliations in making job decisions.

What About the First Amendment?

Many people mistakenly believe that the First Amendment of the Constitution protects them from discrimination based on their politics. After all, the First Amendment guarantees our rights to free speech, freedom of the press, free exercise of our religious beliefs, free assembly, and to petition the government for redress of grievances. Shouldn’t these rights protect us from discrimination based on our political beliefs and statements?

The First Amendment does protect our political views—but only from actions taken by the government. Those who work for public employers—the federal, state, or local government—are protected by the First Amendment and might have a valid legal claim if fired for their political beliefs, depending on the circumstances. However, those who work for private employers don’t enjoy these types of job protections under the First Amendment.

State Laws on Political Discrimination

A handful of states protect private employees from workplace discrimination based on their political beliefs or activities. A larger number of states protect employees from discrimination based on legal activities outside of work, which might include political activities.

Political Discrimination Laws

A few states explicitly prohibit employers from making job decisions based on an employee’s or applicant’s politics. In California, for example, employees are protected from discrimination based on their political affiliations and activities. New York and the District of Columbia have similar laws. And, in Oregon and Wisconsin, employees may not be penalized for refusing to attend meetings intended to allow their employer to communicate its political or religious opinions.

Lawful Conduct Laws

A number of states have laws that prohibit employers from making job decisions based on an employee’s off-duty conduct and activities, as long as they are legal. In Colorado, for example, an employer may generally not fire an employee for engaging in any lawful activity while off duty and away from the workplace. If your state has this type of law, it will likely protect you from political discrimination.

Political Discrimination Might Be Illegal on Other Grounds

Even if you work in a state that doesn’t protect employees from political discrimination, you might still have a legal claim if your employer’s actions were really based on a protected trait under Title VII or a similar state law. For example, if African American employees are fired for participating in a Black Lives Matter rally, but employees of other races are not fired for going to marches, rallies, or protests, that might qualify as illegal race discrimination. In this situation, the African American employees would have a claim that the employer used their politics as a pretext for race discrimination. Similarly, an employer that fires Christian employees for attending a right to life march but shows no interest in other employees’ political views might be making decisions based on religious beliefs rather than political beliefs. A good employment lawyer can help you understand the laws that might protect you in your state and the strength of your potential claims.

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