Ending Political Discrimination in the Workplace.

• Author: Senn, Craig R.

TABLE OF CONTENTS ABSTRACT 365 TABLE OF CONTENTS 367 I. INTRODUCTION 368 II. CURRENT LEGAL PROTECTIONS FOR POLITICAL AFFILIATION IN THE WORKPLACE 373 A. Protections for Public Sector Employees 373 1. First Amendment (and Section 1983) 373 i. First Amendment History and Scope 373 ii. Section 1983 Claims by State and Local Government Employees 375 2. Civil Service Reform Act 386 i. History of the Civil Service and CSRA 386 ii. Political Affiliation-Related Protections 387 B. Protections for Private Sector Employees 390 1. Section 1985's "Support or Advocacy" Clauses 390 i. Section 1985(3) History and Scope 390 ii. Relevance to Private Sector Employees (and Limitations) 393 2. State Laws 400 III. THE ARGUMENT FOR PROTECTING POLITICAL AFFILIATION UNDER TITLE VII 405 A. Congress's "Political Affiliation Protection" Philosophy 407 1. Evidence of the Philosophy: The First Amendment, Section 1985(3), and CSRA 407 2. The Proposal & Congress's Philosophy 410 B. Title VII's First Amendment Foundation 415 1. History of the First Amendment's Religion Clauses 415 2. Title VII's First Amendment Foundation 416 3. The Proposal's Same First Amendment Foundation (and "Companion" or "Sister" Characteristics) 420 C. Harms of Political Affiliation Discrimination 423 1. Harms to Individual Employees and Democratic Society 423 2. The Proposal's Reduction of Harms 426 IV. CONCLUSION 434 I. INTRODUCTION

You are an employee. And perhaps you are a Democrat. Affiliated with the Democratic Party, you supported and voted for Barack Obama in 2008 and 2012, Hillary Clinton in 2016, and/or Joseph Biden in 2020. Further, you supported and voted for Democratic Party candidates for U.S. Senate and House of Representatives, governor, and the local legislature.

Or perhaps you are a Republican. Affiliated with the Republican Party, you supported and voted for John McCain in 2008, Mitt Romney in 2012, and/or Donald Trump in 2016 and 2020. Further, you supported and voted for Republican Party candidates for U.S. Senate and House of Representatives, governor, and the local legislature.

Consider this simple question: Can your employer lawfully fire, suspend, demote, or take other adverse action against you because of your political affiliation? Currently, the answer depends on (1) whether you are a public sector (federal, state, or local government) versus private sector employee and (2) if the latter, the state where you live.

For public sector employees, federal protections exist. Twenty million state and local government workers (about twelve percent of the workforce) (1) rely on the First Amendment (2) (and 42 U.S.C. [section] 1983 ("Section 1983")) to guard against workplace discrimination based on political affiliation. (3) Over two million federal government civil service workers (over one percent of the workforce) (4) lean on the Civil Service Reform Act of 1978 ("CSRA") to provide that same protection. (5)

For almost 140 million private sector employees (about eighty-six percent of the workforce), (6) the story is far different. First, those First Amendment and CSRA protections do not apply to private sector employees--no state action or civil service status exists. (7) What about federal employment discrimination laws? They protect a variety of characteristics, just not political affiliation. (8) For example, Title VII of the Civil Rights Act of 1967 ("Title VII") (9) prohibits workplace discrimination based on sex, race, color, national origin, and religion. (10) The Age Discrimination in Employment Act of 1967 ("ADEA") (11) bans this discrimination based on age (if forty years old or older). (12) The Americans with Disabilities Act of 1990 (ADA) (13) prohibits this discrimination based on disability. (14) What about state laws? They can fill the void; but about half of states lack such laws, and the half that have them offer varying degrees of political affiliation protection. (15)

The result? Private sector employees face a significant disparity in workplace legal protections for their political affiliation. (16) Further, this disparity is problematic in an era when political tension, division, and intolerance remain high (17) and when employers (and others) can readily ascertain a person's political affiliation via social media, the Internet, or otherwise. (18) In short, a storm for political affiliation discrimination looms on the horizon for private sector employees. (19) Recent surveys or polls indicate that many employees--regardless of political affiliation or demographic group--see, and even fear, that looming storm. (20) For example, according to one 2020 national survey, thirty-two percent of U.S. workers "personally are worried about missing out on career opportunities or losing their job if their political opinions became known." (21) This number remains roughly the same regardless of (1) political affiliation (twenty-eight percent of Democratic workers, thirty-one percent of independent workers, thirty-eight percent of Republican workers), (2) gender (thirty-five percent of men, twenty-seven percent of women), or (3) demographic group (thirty-eight percent of Hispanic workers, thirty-one percent of white workers, twenty-two percent of African-American workers). (22)

The time has come. This article proposes that "political affiliation" (23) be added as a protected characteristic under federal employment discrimination law--specifically, Title VII of the Civil Rights Act of 1964. Part II of this article explores current legal protections for political affiliation in the workplace. First, this part discusses existing protections for public sector employees: (1) the First Amendment for state and local government workers (24) and (2) the CSRA for federal government civil service workers. (25) Second, this part discusses (potential) protections for private sector employees: (1) the Reconstruction-era 42 U.S.C. [section] 1985 ("Section 1985"), (26) which (in part) prohibits conspiracy-based "force, intimidation, or threat" due to a person's "support or advocacy... toward or in favor of the election" of any person for federal office, (27) and (2) state laws. (28)

Part III then defends the addition of political affiliation as a protected characteristic under Title VII. Naturally, this addition would create significantly greater symmetry and uniformity in political affiliation protection, thus eliminating current legal preferences for employees who work in the public sector or live in the "right" states. (29) Importantly, though, this proposal is warranted for three other reasons: (1) it is consistent with Congress's "political affiliation protection" philosophy, which is clearly evidenced by the First Amendment, Section 1985, and the CSRA; (30) (2) it rests on a First Amendment foundation that has long been a part of Title VII--Congress relied on this foundation to protect religion in 1964, and it can (and should) rely on it again to protect political affiliation as religion's "companion" or "sister" characteristic; (31) and (3) it substantially reduces those harms (both to individual employees and U.S. democratic society) that are caused by political affiliation discrimination in the workplace. (32)

2. CURRENT LEGAL PROTECTIONS FOR POLITICAL AFFILIATION IN THE WORKPLACE

   This part explores current legal protections for political affiliation in the workplace: First, for public sector employees, and second, for private sector employees.

   1. Protections for Public Sector Employees

      This subpart discusses federal protections for public sector employees: (1) the First Amendment (coupled with the Section 1983 civil action vehicle) for state and local government workers and (2) the CSRA for federal government civil service workers.

      1. First Amendment (and Section 1983)

         For state and local government employees, the First Amendment (and Section 1983) provide federal protection against discrimination based on political affiliation. This subsection will discuss (1) the history and scope of the First Amendment and (2) applicable Supreme Court precedent regarding First Amendment-based political affiliation claims by public sector employees.

         i. First Amendment History and Scope

         After the American Revolutionary War, the Constitutional (Federal) Convention met in Philadelphia and drafted the U.S. Constitution. (33) By March 1789, the states had ratified this founding document. (34) Later that year, the first elected Congress assumed office (35) and drafted the Bill of Rights. (36) By December 1791, the states had ratified those constitutional amendments. (37)

         Congress drafted the First Amendment with an understanding of "[t]he exigencies of the colonial period and the efforts to secure freedom from oppressive administration...." (38) For almost a century before the revolution, the British government had engaged in "a persistent effort... to prevent or abridge the free expression of any opinion which seemed to criticize or exhibit in an unfavorable light... the agencies and operations of the government." (39)

         Consequently, "a major purpose of [the First] Amendment was to protect the free discussion of governmental affairs," which includes discussions of "candidates, structures and forms of government, the manner in which government is operated or should be operated, and all such matters relating to political processes." (40) Consistent with that purpose, Congress specifically crafted the First Amendment to prohibit (in part) federal laws "abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances." (41)

         Based on the "close nexus" between and among the freedoms of speech, the press, and assembly, (42) the U.S. Supreme Court has consistently observed that a person's political affiliation falls under the First Amendment umbrella. (43) For example, in its decision in Kusper v. Pontikes, the Court (in a constitutional challenge to an Illinois...