No, political affiliation is not a protected class in California. A bill that would have made it one failed to pass the state legislature in 2021. While political affiliation cannot be the grounds for employment discrimination or harassment, California labor law forbids employers from
- influencing employees’ voting,
- blocking them from running for office, or
- directing their political activities.
What are California’s laws regarding political affiliation in the workplace?
California employment law forbids political retaliation in the workplace. This includes terminating or retaliating against workers for their political beliefs or activity.
California Labor Code section 1101 forbids employers from making or enforcing a rule that:
- forbids or prevents employees from participating in politics or running for office, or
- controls or directs the political activities or affiliations of employees.1
California Labor Code section 1102 forbids employers from using the threat of discharge to coerce or influence their employees’ political activity.2
These prohibitions refer to your political activity outside of the workplace. They forbid employers from taking adverse employment actions because of the political activity you did on your own time. They likely do not forbid your employer from making rules about political conduct at the worksite and then enforcing them.3
In order to violate these laws, your employer must have acted with a political motive. If the alleged termination, demotion, or retaliation was apolitical or for business reasons, it is not political retaliation.
For example: David is a full-time financial adviser. His employer forbids employees from taking on activities outside of work that require a big time commitment without company approval. David decides to run for public office on his county’s board of supervisors. Because that would be a full-time position, his employer forbids him from doing it. David ignores his employer, runs, and wins. His employer then fires David.4
If your employer violates one of these laws, you first have to notify the California Labor and Workplace Development Agency. You serve a copy of this notice on your employer.5 The Agency can then intervene in your case and conduct an investigation.
If the Agency does not investigate or 65 days pass after your notice, you can file a lawsuit against your employer in California Superior Court. These lawsuits can recover compensation for wrongful termination or retaliation.
It is essential to get the legal advice of a lawyer from a reputable law firm if your employer has violated one of these laws.
Does this make political affiliation a protected class?
No. A “protected class” is a term of art in employment law. While political ideology is protected by California labor law, it is not explicitly included in the list of protected classes.
What is a protected class?
A protected class is a group of people who share a trait or characteristic that they cannot change or that would be unfair to make them change. Anti-discrimination law lists these traits or characteristics. Targeting a person in a protected class because of their trait or characteristic amounts to workplace harassment or discrimination.
California’s anti-discrimination laws recognize 17 protected classes:
- gender expression,
- gender identity,
- genetic information,
- marital status,
- medical condition,
- mental disability,
- national origin,
- physical disability,
- sexual orientation, and
- veteran or military status.6
Some of these protections come from federal law, like Title VII of the Civil Rights Act of 1964.7 However, California state law, in the Fair Employment and Housing Act (FEHA), provides broader protections than federal law.
Even in California, though, political affiliation is not a protected class. This is because political views are not unchangeable, like someone’s race. They are also not something that would be unfair to criticize, like someone’s religion. If they were a protected class, then pervasive political comments in the workplace could become harassment or be discriminatory.
What about the First Amendment and the freedom of speech?
The First Amendment to the United States Constitution protects your right to Free Speech. However, the first 5 words of the Amendment are “Congress shall make no law…” This means that its protections are only from government suppression. This is known as the “state action requirement.” Unless you work in the public sector, you work for a private employer. The First Amendment does not apply to private entities.
Have there been attempts to change the law?
Yes. In 2021, Republican California state senator Melissa Melendez (R-Lake Elsinore) proposed Senate Bill 238, also called the “Diversity of Thought Act.” This bill would have amended the FEHA and other laws to include political affiliation as a protected class. This would have made targeting someone for their political ideology a form of workplace discrimination. It would open up claims of political affiliation discrimination against employers.
The law was proposed to combat what state Sen. Melissa Melendez claimed to be the “climate of intolerance” of “cancel culture.” It was introduced alongside another bill that would have amended the education code to ban school bullying based on political affiliation.8 It was introduced on January 21, 2021. It was referred to the Committee on Judiciary, where it failed to pass on April 21, 2021, by a vote of 9 to 2.
- California Labor Code 1101 LAB.
- California Labor Code 1102 LAB.
- Ali v. L.A. Focus Publication, 112 Cal.App.4th 1477 (2003).
- Facts from Couch v. Morgan Stanley & Co. Inc., 656 Fed. App’x 841 (9th Cir. 2016).
- California Labor Code 2699.3 LAB.
- California Government Code 12940 GOV (Fair Employment and Housing Act), Americans with Disabilities Act, and Title VII of the Civil Rights Act of 1964.
- 42 USC 2000e.
- CA Bill Would Make Political Affiliation A Protected Class, CBS Sacramento (February 17, 2021).