Archives for June 11, 2020

Assuming you did it on your own time, the answer is no. Employees cannot be fired because they joined the Black Lives Matter protests, or for any other political activity in which they participate.

At the Federal level, and in many states, political affiliation is not one of the traditional “protected classes” of anti-discrimination law. California, however, is among a minority of states that protect political affiliation and activity from workplace discrimination. Although California’s Fair Employment and Housing Act does not prevent employment discrimination on the basis of political affiliation, under California Labor Code §§1101 and 1102, employers may not interfere with or control employees’ political activity.

California’s law protecting political activity dates back to the New Deal era and the organized labor movement, which was growing in political power at that time. But the law is not limited to protecting labor activism and organization. The California Supreme Court has interpreted the law expansively in the intervening years. Under the law, banding together with others in support of a cause can be protected “political activity”; as could expressing support for political reform by a symbolic gesture, such as wearing a pin or an armband, or displaying an appropriate banner.

Based on this interpretation of the law, an employee would be protected from retaliation for marching in a Black Lives Matter protest on his or her own time. The employer could not discriminate against the employee for tweeting about the movement; or for discussing the movement with coworkers during an employee’s rest break. If the employer’s dress code allows t-shirts, the employer could not discriminate against an employee who wore a Black Lives Matter t-shirt to work, and the same goes for pins, posters, or other emblems of the movement. An employee probably cannot walk off the job in order to protest, but if the political activity is otherwise lawful and doesn’t interfere with the employee’s work, it should be protected.

Moreover, because the United States and California Constitutions both protect the right of the people to peaceably assemble and petition for a redress of grievances, terminating an employee for participating in a Black Lives Matter march might also violate the common law prohibition on terminating employees in violation of public policy. If your employer retaliates against you after finding out you joined in the Black Lives Matter protests, contact an employment attorney to protect your rights.

Of course, other, more conventional political activity is protected as well, and actions short of outright termination might also violate the law. For example, an employer could not prevent an employee from wearing a “Feel the Bern” t-shirt, assuming a t-shirt is otherwise allowed by the employer’s dress code. A manager cannot ridicule an employee for being among the tens of thousands of Americans who cast protest ballots for Mickey Mouse or Santa Claus. Without question, an employer cannot fire or threaten to fire an employee because that employee supports a particular cause or candidate. Similarly, an employer cannot refuse to hire a person based on that person’s political beliefs or affiliations.

In an extreme case, where political affiliation discrimination turns violent, California’s hate crime law, known as the Ralph Act, may offer employees even further protection. In California, verbal or written threats of violence, physical assault, graffiti, vandalism, and property damage can be considered hate crimes if motivated by, among other reasons, a person’s political affiliation. If

workplace discrimination on the basis of political affiliation turns violent, or potentially violent, an employer could be liable for failing to act on reports of workplace conduct that would violate the hate crime law.

If you think your employer’s actions may violate California laws protecting political affiliation, you should contact an experienced employment attorney who can assess your situation and advise you on how you might protect your right to political affiliation.

To schedule your free initial consultation, contact us online or call (619) 342-8000 today!