These days, it seems like politics permeates everything in the country, including the workplace. The level of polarization could even impact whether someone is able to get a promotion or even keep their job. The question is whether your employer can discriminate against you based on politics. This is a complex issue on many levels.
At the outset, politics is not a protected class under federal anti-discrimination laws. These rules cover things like race, gender, religion, and national origin, but they do not encompass personal beliefs. When making hiring decisions, employers can consider political views. While employers should generally stay away from questions about politics on job interviews, there is nothing to say that they cannot make decisions if they disagree with a potential employee.
You Do Not Have First Amendment Protections in the Workplace
To clear up a misconception, First Amendment rights do not extend to politics in the workplace. While these rights extend to political speech, companies are not obligated to honor your First Amendment rights. These protections apply when you are dealing with the government. Simply stated, these arguments do not work if you are suing private employers.
However, politics is a very broad term that may be used to mask deeper issues that could be illegal. For example, if an employee expresses a political viewpoint that is intertwined with their existence as a protected class, that becomes more of a gray area. Coworkers can create a hostile work environment and chalk it up to “politics” when the origins can be illegal. Employers are not given a pass to put their own spin on illegal behavior. However, if the issue is a well-defined one that is clearly political in nature, you may be hard-pressed to sue for discrimination.
California State Laws Can Give You Protection from Political Discrimination
In California, there are some state law protections for workers based on their political beliefs and activities. Employers cannot attempt to control their employees’ political beliefs, nor can they fire them for their political activities outside of work.
Specifically, California employers are prohibited from doing the following:
- Banning employees from engaging in politics or running for political office
- Attempting to make rules that direct the political activities or beliefs of workers
- Threatening an employee’s job to force them to take a certain political activity or to avoid it
For example, if you have contributed to a certain candidate’s campaign or wrote a letter to the editor, your employer cannot fire you, even if they disagree with your views. These protections also extend to retaliating against you based on what your family member is doing. Employers can even be punished criminally for political discrimination.
If you are able to show by a preponderance of the evidence that your political views or activities were a factor in the prohibited action against you, the burden of proof then shifts to the employer. They must prove by clear and convincing evidence that you would have faced the prohibited action independently of your political activity. For example, they could try to defend the case by arguing that your job performance did not meet expectations and your political activity had nothing to do with what happened.
Political Protections May Not Apply Inside the Office
Again, “politics” is a very broad word to describe activity outside the office. There may be some instances in which an employee has done something outside the office that could be grounds for firing and tries to claim that it is politics. The employer will invariably try to claim that what the employee did outside the office would not be protected under this California state law.
Still, California law protects employees who are engaging in lawful activity outside the workplace. So long as the employee has broken no law in what they are doing on their own time, the employee cannot take any action against them.
However, California law may allow employers to fire workers for damaging the employer’s reputation. For example, if the employee posts content on social media that is overtly racist, this could bring embarrassment to the employer, and it may not be considered politics.
Do Not Engage in Political Activity on Company Time
Political activity may be a different story when it happens on company time. Then, the employee’s activity may not be protected. While an employer may not forbid political activity, they have the right to regulate what goes on at work. If an employee engages in politics on the job, it can be grounds for termination. Employers have a legal right to prohibit political activity in the workplace, so long as it is an even-handed rule that applies to everyone and all points of view. An employee can be fired for using social media at work if it is against the company policy, regardless of what content they post.
Nonetheless, employers will always face minefields when they try to take action over conduct that could be remotely characterized as political. If they do fire or discipline an employee, they could open themselves up to a lawsuit under state law. Employees should still be careful, notwithstanding their right to free political expression outside the workplace. Workers have broad protections, but they are not absolute.
Still, if an employee believes that they have been discriminated against for political activities, they can file a lawsuit under California law. They should speak with an attorney to get legal advice about their own situation if they feel that they are having issues. How an employee handles the discrimination once it begins can be a key factor in whether they win their lawsuit.
Contact an Encino Employment Discrimination Attorney
The Arshakyan Law Firm helps employees who have been victims of any kind of discrimination on the job. We are not afraid of powerful companies or their lawyers. Call us today at (888) 851-5005 or contact us online to schedule your free initial consultation. You owe us nothing unless we win your case.