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Political Discrimination by Employers Is on the Rise

By Abigail A. Southerland1594650058923

In the months and days leading up to a presidential election, there is always an increase in political discourse. This year is certainly no different. It would seem that this election cycle is one of the most contentious in our history. In the past, political discourse and the free and respectful exchange of ideas and opinions has always been highly regarded in America. It was certainly the intent of our Founders that Americans be able to share their political viewpoints without fear of government interference or reprisal. In recent years, however, a disturbing trend to suppress or even punish political discourse has emerged.

One such example is employers’ regular practice of retaliating against employees for the expression of their personal opinions on politics and/or cultural issues. In just the past month, college professors, public school teachers, police officers, top level executives, and health care employees have all found themselves under attack and facing termination for expressing opinions counter to those pushed by the mainstream media.  A common question the ACLJ receives – especially during an election cycle – is this: Can an employer fire or discriminate against an employee based on political association and/or beliefs?

While federal law does not prohibit discrimination based on political association, the First Amendment provides public sector employees (those employed by federal, state or local government) protection against retaliation for the exercise of constitutional rights, including the free expression of political views and beliefs.

As the Supreme Court has noted, “the First Amendment guarantee of freedom of speech protects governmental employees from termination [or other adverse action] because of their speech on matters of public concern.”Bd. of County Comm'rs v. Umbehr, 518 U.S. 668, 675 (1996) (citing Connick v. Myers, 461 U.S. 138, 146, (1983)); see also Garcetti v. Ceballos, 547 U.S. 410, 417 (2006). Indeed, “the right to petition the government is one of ‘the most precious of the liberties safeguarded by the Bill of Rights.’” This right, the Supreme Court explained, “is implied by ‘the very idea of a government, republican in form.’” BE&K Constr. Co. v. NLRB, 536 U.S. 516, 524-525 (2002) (citing United Mine Workers v. Illinois Bar Ass'n, 389 U.S. 217, 222 (1967)).  Any “state action designed to retaliate against and chill political expression strikes at the heart of the First Amendment.” Gibson v. United States, 781 F.2d 1334, 1338 (9th Cir. 1986).

Accordingly, where a government employee appropriately exercises his or her constitutionally protected rights under the First Amendment, and the exercise of that right is a substantial or motivating factor in the government employer’s decision to take any adverse action against the employee, an employee has a valid claim of retaliation against the government employer.

Unfortunately, employees in the private sector are not afforded this same protection. There are, however, a handful of states that prohibit discrimination based on political association and beliefs. Accordingly, it is important for private sector employees who have fallen victim to political discrimination to consult attorneys licensed in their states so that all potential legal claims can be considered.

In addition, there are times where an employer’s stated reason for an adverse employment action is merely a pretext for unlawful discrimination. In other words, the employer’s stated reason for an adverse employment action may be the expression of undesirable political beliefs, but such reasoning is intended to cover up other discrimination based on race, religion, etc. Under these circumstances, a private sector employee may have a valid claim under federal law. For example, if a Christian employee is discouraged from or disciplined for attending a religious rally or for participating in a March for Life event, but other employees are permitted and even encouraged to attend non-religious rallies or pro-choice events, the employee may have a valid claim based on religious discrimination.

If you believe you are a victim of religious discrimination or discrimination for your religious-based belief (like being pro-life, for example), please feel free to contact us at ACLJ.org/HELP. ACLJ remains committed to fighting to protect religious liberties and the rights secured under the First Amendment to the United States Constitution.

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