Employment terminated based on an employee’s political affiliations, or activities could constitute discrimination and a wrongful action, violating California’s labor laws.
The rise of social media has brought employee’s actions that take outside of the workplace into their place of work. Now more than ever, it’s easier to upload videos and pictures to place individuals at political rallies, marches, and protests. This has created many new issues surrounding the rights of private-sector employees and their political expressions.
Contrary to popular belief, employees in private businesses have no First Amendment right to free speech in their workplace. The Freedom of Speech clause only protects public sector employees (federal government employees) from wrongful termination based on political expression. Since the Free Speech clause does not apply to private employers, employees cannot rely on it to argue that their termination constituted unlawful, political discrimination.
However, California has labor laws that do protect private employees from certain types of political discrimination.
What Is Discrimination Based on Political Activity?
Under sections 1101-1102 of the California Labor Code, employers in California are prohibited from discrimination against an employee’s political beliefs.
California defines political activity broadly. It includes an employee’s ability to run for office or stumping for a candidate. It also includes non-partisan activities, like wearing symbolic armbands and associating with others to advance beliefs or ideals. Protesting is also considered a political activity in California.
Political discrimination happens when an employer makes job decisions based on an employee’s political beliefs, party affiliation, or civic activities. An employer in California cannot make, adopt, or enforce any rule, regulation, or policy that specifically prohibits an employee from holding public office or preventing political participation. Also, employers in California cannot control or direct politicals activities or affiliations of their employees. One example of political discrimination is when an employer refuses to hire a person because they voted Republican. In that case, the applicant may have a political discrimination lawsuit against the potential employer.
What isn’t discrimination
Even when an employee engages in protected political activity, they may still be subjected to discipline in the workplace if their conduct violates a legitimate employer policy. The courts have held that company policies prohibiting company resources for use in partisan political activities are legitimate.
However, an employer must have a legitimate, non-political justification for disciplining an employee. Further, the way the business enforces its policies must be evenly applied across the political spectrum irrespective of political leanings, race, color, or other protected ground.
California Labor Laws Protect Even Though Federal Laws Don’t Prohibit Political Discrimination
Not all forms of discrimination are illegal. The First Amendment states that “Congress shall make no law..abridging the freedom of speech.” While this only applies to the federal government, another federal law extends to private employers. Title VII of the Civil Rights Act of 1964 prohibits private employers from discriminating in the workplace based on race, color, national origin, religion, and gender. Other federal laws also protect private employees based on age discrimination and disability, and genetic discrimination. Notably, though, political discrimination is not a protected ground.
Despite no federally protected ground, California’s labor laws prohibit employers from making job decisions based on political activities. For that reason, employers in the state are not free to consider political views and affiliations. Suppose there is an adverse employment action, then under California Labor Codes. In that case, the employee could potentially have a wrongful termination suit in violation of public policy.
Political Discrimination Can Be Illegal Based On Other Grounds
Even if it appears that your workplace has a “legitimate” policy curtailing political activity at work and states that an employee’s political conduct violated that policy, you may still have a wrongful termination claim.
As discussed previously, adverse employment actions based on a protected ground under Title VII are illegal. Further, California also has its own set of civil rights laws under the Department of Fair Employment and Housing, which prohibits discrimination based on various grounds. Some covered grounds include race, color, national origin, marital sex, even pregnancy, childbirth, breastfeeding, or another related medical condition.
Therefore, if it seems that the real reason an employer made an adverse employment decision was based on another protected ground, then the employee would have grounds for a lawsuit.
Contact an Employment Lawyer
If political discrimination has occurred, the employer may be responsible for lost wages, other damages, and a civil penalty of up to $10,000 for violation. The employment attorneys at SANFORD A. KASSEL, A Professional Law Corporation can help assess your case.
