R. Scott Oswald, managing principal of The Employment Law Group® law firm, recently published an article in Bloomberg BNA’s Daily Labor Report® entitled “The Eighth Circuit Differentiates Between Political Discrimination and Retaliation”. The article focused on the implications for employers’ hiring policies in light of the Wagner v. Jones case in December 2011.
In Wagner, the U.S. Court of Appeals for the Eighth Circuit allowed the case of a professor who claimed that a public university discriminated against her on account of her conservative political believe to proceed to trial. The Eighth Circuit held that the professor had presented sufficient evidence to suggest that her employer’s decision not to hire her was at least partially motivated by her “constitutionally protected First Amendment rights of political belief and association.”
The decision, according to Oswald, marked the first time that the Eight Circuit had “held that a public employer violates the First Amendment…when it uses an employee or applicant for employment’s political affiliation as a factor in its employment decisions.”
Additionally, the Eighth Circuit explained the difference between a claim of political discrimination and political retaliation by analogizing the claims to discrimination and retaliation claims under Title VII of the Civil rights Act of 1964, with the discrimination provision preventing injury on the basis of an individual’s status and the retaliation provision preventing harm based on their conduct. According the court, the plaintiff in Wagner sought protection based on a protected trait – namely her status as a political conservative – rather than on her actions.
In his article, Oswald discussed best practices for employers to avoid discriminating on the basis of political affiliation. Oswald suggested:
- “Interview questions about previous employment should focus on the applicant’s experience, not on the former employer’s ideology”.
- If an employer reviews an applicant’s social media presence and “learns of an applicant’s political affiliation or support of political causes, he or she should treat this information just as one would treat information about the applicant’s religion or marital status” – that is, the interviewer “should not consider [such] information in the hiring decision”.
- Employers may want to consider instructing third-party investigators who conduct background checks to remove all irrelevant information (such as political activities) from the investigator’s report to the employer.
- Employer should “be aware that several states and local governments [including California, Wisconsin, Louisiana, District of Columbia, and Puerto Rico] prohibit discrimination based on political status or association by statute” and may protect private employees in addition to public employees.
The Employment Law Group® law firm has an extensive discrimination practice and has broad experience fighting for the rights of employees who have been victims of discrimination in the workplace.
- R. Scott Oswald, Managing Principal of The Employment Law Group , Appears on AARP Program to Discuss Discrimination against the Unemployed and Its Effect on Older Workers (workplacediscriminationblog.com)
- The U.S. Equal Employment Opportunity Commission Rules that Title VII Protects Transgender Employees from Workplace Discrimination (workplacediscriminationblog.com)