Republican elephant and democrat donkey

Should Employers Be Allowed To Discriminate Based On Political Affiliation?

Though it’s widely known that it’s illegal to discriminate based on race, gender, etc., the Civil Rights Act says nothing about discrimination based on political affiliation. Though a few states have put in place their own laws restricting political discrimination, in the majority of states, including Alabama, no such laws exist. 

While on the surface any type of discrimination feels inherently wrong, in the modern political environment a company may have good reason to discriminate against an employee based on political party. The country has rapidly become politically polarized along party lines, and this polarization may have a negative effect on workplace efficiency. 

Intuitively, many view freedom of speech in the workplace as a free speech issue, but it is important to note the free speech protections from the First Amendment do not apply to private employers. Individual speech can be restricted in the private workplace; employees cannot say and do whatever they please. 

Political discrimination is unique from discrimination based on other traits. There is something about an individual’s political affiliation that society does not find as sacred as an individual’s race, gender, or sexual orientation; perhaps because people can choose their political party, but they cannot choose the latter. While it is considered socially unacceptable to openly insult a person’s race, people vigorously insult each other’s politics on a regular basis; and not only in private settings—barbs exchanged between Republicans and Democrats are nationally televised daily. 

A common argument against anti-discrimination laws is that they are in violation of businesses’ property rights. This argument frames the issue of employment discrimination in terms of Lockean rights, the idea being that a business is the private property of its owner, and as such he should be able to do with his business what he likes.

Working for a privately held business is not a right. Employees can discriminate amongst employers when deciding for whom to work, but employers cannot discriminate to the same extent when hiring. There is something that feels wrong about the government telling an employer how to best run her business, because laws that limit an employer’s freedom in this way also tell her how to best spend her money. 

Another prevalent argument against anti-discrimination laws is that they violate a business’s freedom of association. The law makes a distinction between for-profit businesses and non-profit organizations; non-profits can more openly discriminate against potential members because their purposes are “expressive” in nature, while for-profit businesses get less constitutional protection in this area because they are purely commercial. 

This dichotomy seems unfair. For one, even those corporations that seem unequivocally commercial in nature have an expressive component. Wal-Mart, for example, is a quintessential multi-billion dollar corporation, but Wal-Mart also has expressive values that it embraces; until recently, Wal-Mart refused to sell emergency contraceptives in its stores. 

Additionally, commercial association is voluntary much like being the member of a club. Commercial organizations are formed by the free choice of individuals, and employees who join these firms do so on a voluntary contractual basis—although there may be costs, they can leave at any time. 

 In this way, employers and employees are freely choosing to associate with each other in furtherance of a common enterprise, not so different from members of a club. If the goal of a club was to elect a certain candidate, that club would not want members who were outspoken in support of the other candidate. If the goal of a corporation were the same, why should it not be able to exclude its political enemies as well, in furtherance of this goal?

A final key argument against anti-discrimination laws is classic rational choice theory. Employers conduct a cost-benefit analysis when choosing to hire or keep on an employee, and there may be some costs associated with employing a politically outspoken individual.

A series of Pew Research Center studies found that Republicans and Democrats view each other more negatively today than ever before, to the extent that each views the other party as a threat to the nation’s well-being. Members of each party responded that the members of the other made them feel afraid and angry, and expressed that they believed the other party to be immoral, dishonest, and close-minded. 

Based on these findings, it’s not difficult to imagine a potentially hostile, politically divisive work environment. Employees might have reservations about communicating with other and be hesitant about working together. Insults might be openly exchanged, employees might not trust each other, and could feel afraid of or angry at one another based solely on political affiliation.

If this is the case, it could certainly be a rational decision to discriminate against an employee based on political affiliation. If there is the possibility of workplace animosity, workplace productivity could decrease, and a business could make less money and be less successful overall. 

The United States is a country that values its freedoms, and American culture has always been focused on expanding citizens’ rights. As such, it can be uncomfortable to consider the possibility that employers could discriminate based solely on politics. However, the benefits of allowing greater employment freedoms may be outweighed by the potential costs to companies of employing people who do not agree with their overall values, and may cause major disruptions in the workplace. 

This article was written by Katie Pickle, Reid Law's Chief Legal Clerk. Katie is a 3L at Emory Law school. She received her undergraduate degrees in English and Political Science and the University of Virginia. In her free time, Katie enjoys traveling, snowboarding, and working out.