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Workplace Fairness Weekly

Workplace Fairness Weekly (11/5/18)

Topic of the Week  Can you be punished at work for your political beliefs? Maybe.

 Does the law protect you from retaliation? The answer isn't as simple as you might think. 

Are you a public or private employee? 

Do you belong to a Union?

What State do you live in? 

Does federal law protect you from retaliation for your political beliefs or activities? 

Political activity retaliation is not covered by the same laws that prohibit retaliation based on other things. Retaliation by private employers based on race, color, sex, religion, national origin, age, and disability is prohibited. There are also laws protecting against retaliation based on union or concerted activity. These laws don’t protect you from an employer who might fire you because of your political beliefs.

Most employees of private companies do not have legal protection against discrimination based on political affiliation or activity. A public employer may be prevented from firing someone based on political speech because that would constitute the government itself suppressing free speech.

The following states ban discrimination based on some form of political activity:

  • Colorado, North Dakota, and Utah prohibit discrimination based on “lawful conduct outside of work.”
  • Montana is the only state that bars employers from firing people without good cause. Additionally, the good cause must be job-related. Failing to perform job duties satisfactorily is an example.
  • Connecticut prohibits discrimination based on the rights guaranteed by the First Amendment. The state applies the same rules to private employers that are applied to public employers under the First Amendment. For private employers, the activity must not substantially interfere with the employee’s job performance.
  • New York prohibits discrimination for off-duty “recreational activities” such as arguing about politics at a social event.
  • California, Colorado, Guam, Louisiana, Minnesota, Missouri, Nebraska, Nevada, South Carolina, Utah, West Virginia, Seattle (Washington), and Madison (Wisconsin) prohibit employers from retaliating against employees for engaging in “political activities.” It is important to check with your specific state because what activities are defined as political varies between states. For example, in California, courts have held that advocacy of forcible or violent conduct does not qualify as “political” within the terms of the statute.
  • New Mexico prohibits employers from discriminating based on “political opinions.”
  • Washington D.C., Utah, Iowa, Louisiana, Puerto Rico, Virgin Islands, Broward County (Florida) and Urbana (Illinois) prohibit employers from discriminating against employees based on party membership.
  • Illinois, New York, and Washington prohibit employers from discriminating against employees for election-related speech and political activities.
  • Arizona, Washington D.C., Georgia, Iowa, Minnesota, Missouri, Ohio, Oregon, and Washington prohibit employers from discriminating against employees who have signed initiatives, referendums, recalls or candidate petitions. For example, in these states, an employer would not be able to retaliate against someone for signing petitions supporting certain initiatives such as anti-same-sex marriage or same-sex marriage.
  • Louisiana, Massachusetts, and Oregon prohibit discrimination based on contributions to a specific campaign.

Since unions and their members are also very politically active, many standard union contracts include prohibitions on political activity discrimination, and some employers have also chosen to include this type of discrimination among the categories prohibited in their company's anti-discrimination policy disseminated to employees.

On April 26, 2016, in Heffernan v. City of Paterson, the Third Circuit held that if an employer demotes an employee out of the desire to prevent that employee from engaging in protected political activity, the employee is entitled to challenge that unlawful action under the First Amendment and Section 1983 even if the employer’s actions are based on factual mistake about the employee’s behavior.

If you live in one of these states or have a union contract, and you have suffered political activity retaliation, you should consult with an attorney or your union to learn more about any protections that may apply to you.

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