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    Employment Law Divison

    Political Affiliation Discrimination – What is it and is it illegal?

    California’s laws against employer political activity or affiliation discrimination, Labor Code 1101 and 1102, prohibit employers from

    • setting any policy that prevents employees from engaging in political activity or running for political office, or that tries to control or direct employees’ political activity,
    • attempting to control employees’ political activities by threatening to engage in political activity retaliation, or
    • retaliating in any way (including through wrongful termination) against an employee for his/her political beliefs or activities.1

    Examples of employees who might have a case against their employer for political activity workplace retaliation include:

    • A woman who is fired after she writes an op-ed for her local paper criticizing a candidate for office to whom her employer has been a large donor; and
    • A man who is demoted at work by his pro-choice boss after he joins the board of a nonprofit organization that opposes abortion and promotes pro-life advocacy.
    Laptop with post-it that says you're fired, which would be unlawful in California if the employer's motivation is the employee's political beliefs

    California employers cannot retaliate against employees for their political ideology.

    California employees whose employers violate Labor Code 1101 and/or 1102 by punishing them for their political beliefs or activity may be able to sue their employers for public policy wrongful termination or wrongful constructive termination.

    Depending on the facts of the case, an employee victim of employer political activity retaliation may be entitled to lost wages and benefits and/or additional damages for pain and suffering.2

    Below, our California labor and employment attorneys answer the following frequently asked questions about workplace retaliation or wrongful termination based on political activity or political beliefs:

    If you have further questions after reading this article, we invite you to contact us at Shouse Law Group.

    1. Are employers allowed to discriminate based on political affiliation?

    Under California employment law, employers may not fire you, or otherwise retaliate against you, for your political activities or political beliefs.3

    It is true that the First Amendment to the U.S. Constitution, a federal law that protects freedom of speech, applies only to government suppression of speech, not to private employers. It is also true that one’s political beliefs and affiliation are not a category that will protect you from workplace harassment or employment discrimination on that basis.4

    But two sections of the California Labor Code (sections 1101 and 1102) specify that private employers may not do any of the following:

    1. Make, adopt or enforce any rule or policy forbidding or preventing employees from engaging or participating in politics or running for public office;
    2. Make, adopt or enforce any rule or policy that tends to control or direct the political activities or affiliations of employees;5 or
    3. Use the threat of job loss to coerce, influence or attempt to coerce or influence employees to take or refrain from taking any particular course of political activity.6

    It follows from these laws against employer political suppression or coercion that employers may not fire or retaliate against employees for their political activity or beliefs.

    Example

    Ali is employed as a columnist at a local newspaper. One day he is interviewed on local radio and expresses his support of one candidate (Candidate A) for mayor and his disapproval of another (Candidate B).

    It turns out that Candidate B is a close friend of the owner of the newspaper where Ali works. Shortly after that interview, Ali is fired.

    Ali may sue his employer for wrongful termination based on a political, lawful activity. The employer should not be making employment decisions based on Ali’s political views.

    Political affiliation is NOT a protected class

    Note that a recent California bill that would have made political affiliation a protected class – such as sexual orientation or gender identity – failed to pass the state legislature. The purpose of this bill was to combat cancel culture and the climate of intolerance and to promote free speech.7

    2. What kinds of political activity are protected against retaliation?

    Political affiliation is not, strictly speaking, a protected class in California. Nevertheless, state political workplace retaliation law protects employees’ right to engage in non-job-related, political activity outside of work.8

    So, for example, it would probably not be illegal under Labor Codes 1101 and 1102 LC for an employer to restrict employees’ ability to engage in political discussions with clients or customers while at work or to use the position provided by their job to promote political opinions that the employer does not support.

    Example: Let’s take the example of Ali, above.

    Let’s say that the newspaper Ali works for has taken the position that Candidate B is the better candidate for mayor and adopts that as its editorial page policy. In spite of that, Ali writes and publishes a column supporting Candidate A instead.

    In that case, the newspaper would have the right to fire Ali. Firing him in this case would not be retaliation for his political beliefs but would instead be a result of his failure to follow his employer’s editorial policies in the context of his job. Ali created a legitimate conflict of interest.9

    Pragmatic concerns v. political motivations

    Also, California’s law against employer political retaliation only prohibits actions by the employer that are politically motivated.

    That is, LC 1101 and 1102 do not prohibit employers from taking adverse employment actions in response to an employee’s political activities if that response is based on pragmatic concerns rather than the political beliefs of the employer.10

    Example: David works full-time as a financial adviser. His employer’s official company policy states that employees may not engage in activities outside of work that are significant time commitments without the employer’s approval.

    David is elected to his county’s board of supervisors. His employer tells him that it cannot allow him to serve in that nearly full-time position while also working full-time as a financial adviser. But David takes the supervisor position anyway. As a result, his employer fires him.

    David does not have a case against his employer for political retaliation. The employer fired him because of the time commitment involved in doing his job duties as a supervisor–not because of the employer’s political motivations.11

    Political protester holding a sign that says 'We Need a Change', which would not be a legal ground to fire the protester in California

    Victims of employer political activity retaliation may be able to sue for lost wages and pain and suffering.

    3. Can I sue my employer for political activity workplace retaliation?

    If you believe that you were fired, received a demotion or a disciplinary action, or were otherwise retaliated against at work because of your political activities or beliefs – or if your employer is trying to intimidate you into taking or refraining from certain political actions – then the best first step is to contact a California employment attorney who understands the law regarding political activity wrongful termination/retaliation.

    An experienced California labor lawyer can help you determine which exceptions to the California rule of at-will employment might apply to your case. S/he can also help you gather and preserve evidence if you eventually file a lawsuit alleging political activity retaliation against your employer.

    Labor and Workforce Development Agency investigation

    Before you may sue your employer under Labor Code 1101 or 1102 LC, you must first

    The Labor and Workplace Development Agency may then choose to investigate your case itself.

    If the Agency chooses NOT to investigate, it will notify you within sixty-five (65) days–at which point you are free to file a lawsuit in California Superior Court against your employer alleging a violation of Labor Code 1101 or 1102 LC.13

    If the Labor and Workforce Development Agency DOES decide to investigate your workplace political retaliation complaint, then it must notify you of that within sixty-five (65) days. At that point, the Agency may take up to 120 (extendable to 180) days to investigate and decide whether to issue a citation against your employer.

    If the Agency decides not to issue a citation, it will notify you, and you and your employment attorney may file a civil lawsuit alleging political activity coercion.14

    Suing for damages for LC 1101 or 1102

    In a suit against your employer over retaliation for your political activity or beliefs, you may be able to receive compensatory damages consisting of some or all of the following:

    1. Lost wages and benefits (that is, the lost pay that you could reasonably have expected to earn at your job if you had not been fired or constructively terminated for your political activities, plus the value of any employee benefits, MINUS the amount of wages and benefits that you actually earned or could have earned from substantially similar employment);15
    2. Damages for emotional distress/pain and suffering (e.g., mental suffering, loss of enjoyment of life) arising from the political activity retaliation;16 and/or
    3. Punitive damages designed to punish the employer for its behavior, if your employer is found to be guilty of oppression, fraud or malice.17

    Additional reading

    For more in-depth information, refer to these scholarly articles:

    Legal References:

    1. Labor Code 1101 LC — Political activities of employees; prohibition of prevention or control by employer. (“No employer shall make, adopt, or enforce any rule, regulation, or policy: (a) Forbidding or preventing employees from engaging or participating in politics or from becoming candidates for public office. (b) Controlling or directing, or tending to control or direct the political activities or affiliations of employees.”). (Other state laws: New York and Washington, D.C. also have laws prohibiting discrimination on the basis of political affiliation, political party (such as Democrat or Republican), political views, and political speech. Colorado and North Dakota forbid discrimination based on “lawful conduct outside of work.” Louisiana, South Carolina, and Madison in Wisconsin  forbids employers from retaliating against employees for participating in political activities. And Connecticut forbids discrimination based on First Amendment rights.)
    2. Labor Code 1102 LC — Coercion or influence of political activities of employees. (“No employer shall coerce or influence or attempt to coerce or influence his employees through or by means of threat of discharge or loss of employment to adopt or follow or refrain from adopting or following any particular course or line of political action or political activity.”)
    3. Ali v. L.A. Focus Publication (2003) 112 Cal.App.4th 1477, 1487 (disapproved of on other grounds by Reid v. Google, Inc. (2010) 50 Cal.4th 512). (“Unlike statutes that “simply regulate conduct between individuals or impose requirements whose fulfillment does not implicate fundamental public policy concerns” (see Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 669), Labor Code sections 1101 and 1102 reinforce the substantial public interest in protecting the “fundamental right” of employees to engage in political activity without interference or threat of retaliation from employers.”).
    4. See Government Code 12940 GC — Employers, labor organizations, employment agencies and other persons; unlawful employment practice; exceptions [California harassment and discrimination law]. For example, it is a violation of civil rights in the United States for employers to discriminate against employees based upon a protected characteristic, such as national origin or marital status.
    5. Labor Code 1101 LC — Political activities of employees; prohibition of prevention or control by employer, endnote 1 above.
    6. Labor Code 1102 LC — Coercion or influence of political activities of employees, endnote 2 above. Note that the political activity of government employees is protected.
    7. Example based on the facts of Ali v. L.A. Focus Publication, endnote 3 above. California SB 238 a.k.a. Diversity of Thought Act, introduced by California state senator, Sen. Melissa Melendez (R-Lake Elsinore). CA Bill Would Make Political Affiliation A Protected Class, CBS Sacramento (February 17, 2021).
    8. Ali v. L.A. Focus Publication, endnote 3 above, at 1488. (“Ali asserts he was fired not because the content of his articles contravened the editorial policies or standards of the newspaper, but because outside of the workplace he publicly criticized an influential public official for supporting a particular political candidate.” (emphasis added))
    9. Same. (“Affirming the trial court’s summary adjudication of the reporter’s claim for wrongful termination in violation of public policy, the Court of Appeal explained that a private publisher enjoys an absolute right to decide what to publish in its own paper. The reporter may have the right to express his views, the court reasoned, but he did not enjoy the right to have his employment protected when his published statements contradicted the editorial standards of the paper: “[I]t was the Herald’s right to set and enforce its own standards for acceptable and responsible reporting. Eisenberg was fired because he did not meet those standards. Although Eisenberg has a First Amendment right to express his own views, he does not have a right to publish them in the Herald against its wishes.” Eisenberg plainly has no application here.”)
    10. Couch v. Morgan Stanley & Co. Inc. (9th Cir. 2016) 656 Fed.Appx. 841, 843. (“Two California Court of Appeal decisions have held that liability under [Labor Code] §§ 1101(a) and 1102 is triggered only if an employer fires an employee based on a political motive. . . . The district court thus correctly granted summary judgment to Morgan Stanley on Couch’s claims under §§ 1101(a) and 1102. Even viewing the facts in the light most favorable to Couch, Morgan Stanley fired Couch for a legitimate, apolitical reason: Couch could not work as both a full-time FA and a full-time Supervisor. The Supervisor position was a full-time position that required 25 hours per week during business hours and another 10 hours outside of business hours. Morgan Stanley likewise treats the FA position as a full-time position. Couch’s observation that some FAs work from home or that no one monitored whether Couch was in the office does not negate the fact that the FA position was considered full-time or that Morgan Stanley did not believe Couch could devote sufficient time to his clients while simultaneously employed as a full-time Supervisor.”)
    11. Based on the facts of the same.
    12. Labor Code 2699.3 LC — Requirements for aggrieved employee to commence a civil action [under LC 1101 or 1102]. (“(a) A civil action by an aggrieved employee pursuant to subdivision (a) or (f) of Section 2699 alleging a violation of any provision listed in Section 2699.5 shall commence only after the following requirements have been met: (1)(A) The aggrieved employee or representative shall give written notice by online filing with the Labor and Workforce Development Agency and by certified mail to the employer of the specific provisions of this code alleged to have been violated, including the facts and theories to support the alleged violation. (B) A notice filed with the Labor and Workforce Development Agency pursuant to subparagraph (A) and any employer response to that notice shall be accompanied by a filing fee of seventy-five dollars ($75). The fees required by this subparagraph are subject to waiver in accordance with the requirements of Sections 68632 and 68633 of the Government Code. (C) The fees paid pursuant to subparagraph (B) shall be paid into the Labor and Workforce Development Fund and used for the purposes specified in subdivision (j) of Section 2699. (2)(A) The agency shall notify the employer and the aggrieved employee or representative by certified mail that it does not intend to investigate the alleged violation within 60 calendar days of the postmark date of the notice received pursuant to paragraph (1). Upon receipt of that notice or if no notice is provided within 65 calendar days of the postmark date of the notice given pursuant to paragraph (1), the aggrieved employee may commence a civil action pursuant to Section 2699. (B) If the agency intends to investigate the alleged violation, it shall notify the employer and the aggrieved employee or representative by certified mail of its decision within 65 calendar days of the postmark date of the notice received pursuant to paragraph (1). Within 120 calendar days of that decision, the agency may investigate the alleged violation and issue any appropriate citation. If the agency, during the course of its investigation, determines that additional time is necessary to complete the investigation, it may extend the time by not more than 60 additional calendar days and shall issue a notice of the extension. If the agency determines that no citation will be issued, it shall notify the employer and aggrieved employee of that decision within five business days thereof by certified mail. Upon receipt of that notice or if no citation is issued by the agency within the time limits prescribed by subparagraph (A) and this subparagraph or if the agency fails to provide timely or any notification, the aggrieved employee may commence a civil action pursuant to Section 2699.”) See also Labor Code 2699.5 LC. (“The provisions of subdivision (a) of Section 2699.3 apply to any alleged violation of the following provisions: . . . 1101, 1102 . . . .”)
    13. Same.
    14. Same.
    15. Labor Code 1105 LC — Employee’s action for damages. (“Nothing in this chapter shall prevent the injured employee from recovering damages from his employer for injury suffered through a violation of this chapter.”)
    16. CACI 2433 —  Wrongful Discharge [wrongful termination] in Violation of Public Policy [including as retaliation for political activity or beliefs]—Damages. (“If you find that [name of defendant] [discharged/constructively discharged] [name of plaintiff] in violation of public policy, then you must decide the amount of damages that [name of plaintiff] has proven [he/she] is entitled to recover, if any. To make that decision, you must: 1. Decide the amount that [name of plaintiff] would have earned up to today, including any benefits and pay increases; [and] 2. Add the present cash value of any future wages and benefits that [he/she] would have earned for the length of time the employment with [name of defendant] was reasonably certain to continue; [and] 3. [Add damages for [describe any other damages that were allegedly caused by defendant’s conduct, e.g., “emotional distress”] if you find that [name of defendant]’s conduct was a substantial factor in causing that harm.]”)
    17. Civil Code 3294 — Exemplary damages; when allowable; definitions. (“(a) In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.”)

     

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