By the time the Inspector General’s investigative report was issued on July 28, not too many were surprised to learn that political appointees at the Justice Department, starting back in 2002, attempted to pack the department with conservatives by screening out candidates with so-called liberal references on their resumes. While it’s almost amusing to learn the lengths to which Monica Goodling and other true believers went to ferret out lefty leanings, what’s less amusing is that in most situations in the private sector, discrimination on the basis of political affiliation is not against the law. Just something to think about when your water cooler conversation gets a little overheated…

In 2006, nine U.S. Attorneys were forced to resign their posts in the midst of a presidential administration, triggering an investigation of what many considered at the time to be a scandal, charging that the resignations were required for improper reasons. See Wikipedia: Dismissal of U.S. Attorneys Controversy.) An investigation of the U.S. Attorneys firings led to allegations that these firings were part of a much larger problem at the Department of Justice, namely that there was a concerted attempt underway to transform the political makeup of the department by selecting conservatives for open positions.

While the U.S. Attorney investigation is still underway, recently the Inspector General’s office released two reports, confirming the suspicions of many that political considerations were indeed hard at work shaping the DOJ hiring process over the last five years in an impermissible way. This effort was primarily the handiwork of one Monica Goodling, whose work at DOJ was designed to stock the department with conservative lawyers who espoused the ideals of the current administration, even though the hiring process for career DOJ attorneys is supposed to be merit-based without regard for political considerations.

The first report, released in June and entitled An Investigation of Allegations of Politicized Hiring in the Department of Justice Honors Program and Summer Law Intern Program, indicated that in hiring for the program to bring new lawyers into the department, either for the summer or for their first job following law school, once the hiring process was shifted from the supervision of career attorneys to then-Attorney General John Ashcroft’s advisors, the process became more politicized. (See Washington Post article.) This program was investigated once a group of Justice Department attorneys unhappy with the politicization of the process wrote an anonymous letter to Congress in 2007 drawing attention to the change in policy. (See Letter from A Group of Concerned Department of Justice Employees.)

As a result of the letter, the process was restored to again have career DOJ attorneys making the hiring selections for the DOJ programs. (See Washington Post article.) Now, some of the rejected applicants are suing, and the Office of Special Counsel is trying to figure out whether it can discipline the Justice employees who acted improperly, since they are no longer with the Department of Justice. (See Washington Post article.) (Ironically, the Office of Special Counsel has its own similar problems right now, as Special Counsel Scott Bloch is under investigation for obstruction of justice, and–you guessed it–using his office for partisan political activities.) (See NPR article.)

On July 28, a second report was released, focusing on whether certain Justice employees violated the law when politicizing the hiring process at the Justice Department. (See An Investigation of Allegations of Politicized Hiring by Monica Goodling and Other Staff in the Office of the Attorney General.) As the title of the document suggests, Monica Goodling’s behavior was the focus of the investigation, although as the investigation concludes, she apparently wasn’t the only one engaged in inappropriate behavior: several other Justice employees, including the chief of staff to Alberto Gonzales, Kyle Sampson, and Goodling’s predecessor as White House liaison, Jan Williams, all “violated federal law and Department policy…by considering political and ideological affiliations” in hiring processes.

In Goodling’s case, not only did she engage in improper conduct on the basis of political affiliation, but also on the basis of sexual orientation. Based on rumors about an assistant U.S. Attorney’s (AUSA) relationship with her boss, a U.S. Attorney (a relationship which both women steadfastly have denied), Goodling denied an extension to the AUSA’s detail, and prevented her from accepting a plum assignment for which she was very qualified. Her boss, the U.S. Attorney, was ultimately one of the ones fired in the purge of nine U.S. attorneys in 2006. (See Los Angeles Times article.) Unfortunately, however, Goodling was granted immunity in exchange for her testimony before Congress in May 2007. (See Goodling Testifies Before The House Judiciary Committee.) Therefore, it is unclear what, if anything, can be done to penalize her illegal and inappropriate behavior.

As outraged as many are about Goodling’s behavior, it is also outrageous that if Goodling were in charge of hiring decisions in the private sector, many of her actions would not violate the law. Only a handful of states have laws prohibiting discrimination or retaliation on the basis of political activity or affiliation, so the bulk of Goodling’s misconduct wouldn’t violate any laws. (See Retaliation: Political Activity.) While more states have laws prohibiting discrimination and retaliation on the basis of sexual orientation (and generally perceived sexual orientation is included in that), there are still 30 states which don’t have these laws. (See Discrimination: Sexual Orientation.)

So the next time those talks around the watercooler start to involve politics or speculation about a co-worker’s sexual orientation, remember that there might not be any legal recourse if those in charge of hiring and firing use that information against an employee. Since it looks like Monica Goodling is going to have to get a job in the private sector (the investigative report recommends that her misconduct be taken into account if she requests to be rehired by the government ever again), be sure she’s not standing anywhere nearby when these conversations take place. Since she received immunity, we can’t be sure she’s learned her lesson.