Wolf 1

Political Affiliation as a Protected Class

A Comparative View of State Level Anti-Discrimination Laws, Court Cases, and Federal
Statutes

Joseph Wolf
SUNY University at Buffalo
jpwolf@buffalo.edu
12/11/2017
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TABLE OF CONTENTS

ABSTRACT.... 3
PART ONE
INTRODUCTION............................................................... 4
THE WIDENING GAP IN POLITICAL POLARIZATION...5
POLITICAL AFFILIATION DISCRIMINATION EXAMPLES...8
COURT CASES REGARDING POLITICAL AFFILATION DISCRIMINATION..9
In the Public Sector..9
In the Private Sector...13
CONCLUSION ONE.14
STATE LAWS BANNING POLITICAL AFFILIATION DISCRIMINATION..15
Washington D.C.....16
California...18
New York...19
Other States and Territories....20
CONCLUSION TWO21
CONCLUSION OF PART ONE22
PART TWO
INTRODUCTION.....23
THE CIVIL RIGHTS ACT OF 1964....23
THE CIVIL RIGHTS ACT AND THE CONSTITUTION..25
POLITICAL AFFILIATION AS A COMPLETE PROTECTED CLASS26
CONCLUSION..28
BIBLIOGRAPHY..30
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I. Abstract

This paper provides a beginning foray into the discussion regarding political affiliation

being included as a protected class. Part One examines various court cases and state laws

offering political affiliation protection in an effort to show that this sort of a protected class is not

outlandish. Part Two looks to federal laws and the constitutional authority of Congress to enact

new protected classes, ultimately examining whether or not political affiliation protection is

possible under current protected classification standards. While rough, considering the lack of

literature on the topic, this paper creates the front end argument regarding political affiliation

being included as a protected class, supplementing the incredible paper by Nancy Levit,

Changing Workforce Demographics and the Future of the Protected Class Approach. In the end,

this paper provides a leaping off point regarding political affiliation being included as a protected

class, and taken in tandem with other works which exemplify the current issues regarding the

protected classification, enables a complete synthesis of information on the topic.

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Part One

II. Introduction

The United States has a history rife with both de jure and de facto discrimination;

schools, housing, restaurants and public utilities are a but a few areas in which this

discrimination has reared its ugly head. Spurred by the Supreme Court in US v Carolene

Products, which stated prejudice against discrete and insular minorities may be a special

condition1, Congress has enacted several laws which created protected classes of

characteristics. These laws make discrimination founded solely on the basis of one of those

classes illegal. Beginning chiefly with the Civil Rights Act of 1964, Congress has since passed

several laws which broaden the scope of those protections, including the Age Discrimination in

Employment Act of 1967, the Pregnancy Discrimination Act, the Civil Rights Act of 1968, the

Rehabilitation Act of 1973, the Americans with Disabilities Act of 1990, the Uniformed Services

Employment Reemployment Act, and the Genetic Information Nondiscrimination act.

All of these laws cast a wide net of protected characteristics, including any group which

shares a common race, religion, color, or national origin; people over 40; and people with

physical or mental handicaps.2 This section seeks to examine the constitutionality and reasoning

behind political affiliation being included as a protected class in the national sphere by looking to

the effects of this discrimination, the acts by Congress listed above which provide for a baseline

of the protected class doctrine, several state enacted laws prohibiting discrimination based on

political affiliation, and finally Supreme Court cases involving political affiliation.

1
Levit, Nancy. "Changing Workforce Demographics and the Future of The Protected Class Approach."
2
National Archives and Records Administration, EEO Terminology
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III. The Widening Gap in Political Polarization

This paper is founded upon the idea that political polarization is an ever worsening

phenomena within the United States, and that phenomena is causing an ever increasing amount

of political affiliation discrimination. The logic is this; more political polarization equates to

more strongly held beliefs, causing increasing party animosity, thus opening the door to

discrimination then being acted upon those beliefs.

Political polarization, especially in the time since 1994, has been worsening

dramatically.3 In fact, the division between Republicans and Democrats on fundamental

political vales reached record levels during Barack Obamas presidency. In Donald Trumps

first year as president, these gaps have grown even larger.4 Fundamental political values include

government, race, immigration, national security, environmental protection and other areas.5

Put in more numerical terms, the median Republican is now more conservative than 97% of

Democrats, and the median Democrat is more liberal than 95% of Republicans.6 Those numbers

are stark, and put differently, it means that 3% of Republicans are more liberal than the average

Democrat, and 5% of Democrats are more conservative than the median Republican.7

This may not be all that surprising in todays world, but this trend is a relatively new

issue. For example, in 1994, 64% of republicans were more conservative than the median

3
Kiley, Jocelyn. In polarized era, fewer Americans hold a mix of conservative and liberal views.
4
Smith, Samantha. The Partisan Divide on Political Values Grows Even Wider.
5
Smith, Samantha. The Partisan Divide on Political Values Grows Even Wider.
6
Kiley, Jocelyn. In polarized era, fewer Americans hold a mix of conservative and liberal views.
7
Kiley, Jocelyn. In polarized era, fewer Americans hold a mix of conservative and liberal views.
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Democrat, and 70% of democrats were more liberal than the median Republican.8 This can be

seen more clearly with the aid of a chart

put together by the Pew Research Center,

seen at the left. 9

While public opinion is one way

to measure political polarization, it can

also be seen by examining practices in the

voting booth. This can be seen in the

graphic created by FiveThirtyEight to the

left.10 In a country where politics is not polarized one

would expect there to be many counties decided by a close

vote. Yet that is not the case. In fact, of the nations

3,113 counties (or county equivalents), just 303 were

decided by single-digit margins less than 10 percent. In

contrast, 1,096 counties fit that description in 1992, even

though that election featured a wider national spread.11

This is further evidence that political polarization is a

worsening phenomenon- more and more counties across

the United States are being decided in landslide

elections. During the same time period of 1992 to present, these kinds of landslide elections,

8
Kiley, Jocelyn. In polarized era, fewer Americans hold a mix of conservative and liberal views.
9
Kiley, Jocelyn. In polarized era, fewer Americans hold a mix of conservative and liberal views.
10
FiveThirtyEight, Purple America Has All But Disappeared.
11
FiveThirtyEight, Purple America Has All But Disappeared.
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defined as when the margin exceeds 50 percentage points12, has exploded from 93 to 1,196, or

over a third of the nations counties.13

This increase in polarization is not an isolated incident.

Rather, as polarization increases, so too does party animosity

towards the opposing party. This can be seen by the graph from

Pew Research to the left.14 Much like political polarization,

party animosity follows a similar trend towards almost

exponential growth. Since 1994 the percentage of each party

viewing the other as very unfavorable has more than doubled,

and considering the trend of this election, that number is more

than likely going to continue to rise.

This increase not only in political polarization but also

in party animosity leads to the first assumption required by this

paper; that these two factors, taken together, creates a

possibility for more discrimination on the basis of political

belief. This assumption requires an in-depth statistical analysis

of the figures posed above and incident rates of political affiliation discrimination, and that is a

line of research someone could undertake. However, this assumption is not outside the realm of

possibility, and examining various acts across the United States shows why.

12
FiveThirtyEight, Purple America Has All But Disappeared.
13
FiveThirtyEight, Purple America Has All But Disappeared.
14
Neal, Samantha. "Rising tide of partisan antipathy."
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IV. Political Affiliation Discrimination Examples

Political affiliation discrimination can be defined as an act taken by an employer that

adversely effects an employee on the sole basis of that employees political affiliation or action.

Alternatively, considering political affiliation discrimination can occur outside of the workplace,

a more succinct definition is offered by Wagner v. Jones, which states If a state actor refuses to

hire an individual because of her political associations, then the individual has suffered an

adverse employment action.15 However, political affiliation discrimination can also occur

outside of government, and as such, any act of discrimination based solely upon the political

affiliation of someone can be considered political affiliation discrimination. This kind of

retaliation is rampant throughout the United States and can be seen in published sources across

the nation.

Recently, a Virginia Cyclist gave the middle finger to a presidential motorcade. That act

cost Briskmans job, with the employer citing obscenity.16 This firing, while not perhaps

overtly political, carries political speech ramifications. More direct, in 2004 an employer in

Alabama threatened to fire one of their employees if a John Kerry bumper sticker was not

removed from the employees private car.17 In 2012 a Washington D.C. Diversity Officer at a

deaf college was fired after she signed a petition supporting the repeal of Marylands same sex

marriage law.18 David v. Bandemer19, Vieth v. Jubelirer20, and the recently argued Gill v.

15
Wagner v. Jones, 664 F.3d 259 (8th Cir. 2011).
16
Hauser, Christine. Cyclist Lost Her Job After Raising Middle Finger at Trumps Motorcade.
17
Noah, Timothy. The insubordinate bumper sticker.
18
Hockaday, Peter. 'Diversity officer' suspended after signing anti-Gay marriage petition.
19
Davis v. Bandemer, 478 U.S. 109, 106 S. Ct. 2797, 92 L. Ed. 2d 85 (1986).
20
Vieth v. Jubelirer, 541 U.S. 267, 124 S. Ct. 1769, 158 L. Ed. 2d 546 (2004).
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Whitford21, all attempt to wrestle with answering when partisan gerrymandering, drawing district

lines via a persons political ideology, crosses an unconstitutional line.

These acts are happening throughout the country, and considering the ever increasing rate

of political polarization and political animosity, these acts could very well increase in nature as

time progresses and campaigns become even more polarized. Political Affiliation discrimination

is a threat to employees and people across this country, and without proper protection those acts

will continue to occur.

V. Examining Court Cases Regarding Political Affiliation Discrimination

Now that it has been established that political polarization and party animosity is an ever

worsening phenomena, beginning the first inquiry into political affiliation being included as a

protected class can occur. Turning first to Supreme Court cases on the topic yields fruitful

results, and examining court cases in the public sector and private sector provide for a judicial

background regarding the subject.

In the Public Sector

Elrod v. Burns is the first landmark case regarding political affiliation discrimination in

the public sector. In this case employees of the Cook County Sheriffs Office were Republican,

and when they lost the election, a Democratic Sheriff was elected to the head of the department.

Due to the system of political patronage that the Sheriffs Office operated under, the new Sheriff

demanded that the employees support and become members of the Democratic party. As is the

case in many states, and this will be examined further, they employees were not covered by any

21
Gill v. Whitford, 137 S. Ct. 2289 (U.S. 2017).
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statute, ordinance, or regulation protecting them from arbitrary discharge such as what they were

facing. In the end, several were fired.

Citing the First and Fourteenth Amendments, along with 42 U.S.C section 1983, 1985,

1986, and 1988, the employees appealed to the Supreme Court, who ruled that their firing was

unconstitutional. They stated that the costs of these firings is the restraint it places on freedoms

of belief and association An individual who is a member of the out-party maintains affiliation

with his own party is at risk of losing his job.22 This, the court found, is coerced belief, which is

prohibited by the First Amendments free speech and free association clauses. If there is any

fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe

what shall be orthodox in politics or force citizens to confess by word of act their faith

therin.23 Furthermore, the right to associate with the political part of ones choice is an integral

part of [the freedom provided by the First Amendment].24 This case, in sum, protected a public

employees right to speak, or not speak, about politics in purview of their occupation.

Elrod v. Burns started a litany of court cases regarding political affiliation discrimination,

and this prohibition against it was continued, and broadened, by the case Branti v. Finkle. In this

case a New York assistant public defender was attempted to be fired since he was a Republican,

not sponsored by any democratic organization. The ones who were allowed to stay were all

Democrats who were selected by democratic legislatures or democratic town chairmen.25 These

assistant public defenders were being discharged solely because of their political beliefs, and the

Supreme Court held that action to be unconstitutional. The Court reasoned that since the First

22
Elrod v. Burns, 427 U.S. 347, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1976)..
23
West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 63 S. Ct. 1178, 87 L. Ed. 1628 (1943).
24
Kusper v. Pontikes, 414 U.S. 51, 94 S. Ct. 303, 38 L. Ed. 2d 260 (1973).
25
Branti v. Finkel, 445 U.S. 507, 100 S. Ct. 1287, 63 L. Ed. 2d 574 (1980).
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Amendment protects a public employee from discharge based on what he has said, it must also

protect him from discharge based on what he believes.26 However, there is no requirement that

dismissed employees prove that they, or other employees, have been coerced into changing,

either actually or ostensibly, their political allegiance.27 In order to succeed, all an employee has

to do is prove they were fired solely on the basis of their political affiliation. In sum, this case

broadened Elrod, including what an employee actually believes, and it provided a low standard

needed for the employee to be able to bring action.

The watershed, often cited case Rutan v. Republican Party of Illinois merged the above

two cases together, and the purpose of this case is described by Justice Brennan as deciding the

constitutionality of several related political patronage practices- whether promotion, transfer,

recall, and hiring decisions involving low level public employees may be constitutionally based

on party affiliation.28 The Governor of Illinois was looking at applicants voting record to

determine which party they belonged to, and then basing his decisions off of that trait.

The Court deemed this to be unconstitutional. They found that the actions of the

Governor violate both the First Amendment and the 14th amendment, as codified in 42 USC

section 1983. Employees who do not acquiesce their political affiliation to the party of the

governed are unable to move up in their respective fields, removing any chance for upwards

movement. Employees who find themselves in dead-end positions due to their political

backgrounds are adversely affected. They will feel a significant obligation to support political

positions held by their superiors, and to refrain from acting on the political views they actually

26
Branti v. Finkel, 445 U.S. 507, 100 S. Ct. 1287, 63 L. Ed. 2d 574 (1980).
27
Branti v. Finkel, 445 U.S. 507, 100 S. Ct. 1287, 63 L. Ed. 2d 574 (1980).
28
Rutan v. Republican Party of Illinois, 868 F.2d 943 (7th Cir. 1989).
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hold. These are significant penalties and are imposed for the exercise of rights guaranteed by

the First Amendment.29

Rutan furthered the doctrines set out in Elrod and Branti by including promotions,

transfers, and recalls after layoffs under the penumbra of protection.30 The Court stated the

First Amendment is not a tenure provision, protecting public employees from actual or

constructive discharge. The First Amendment prevents the government, except in the most

compelling circumstances, from wielding its power to interfere with its employees freedom to

believe and associate, or to not believe and not associate. 31

Wagner v. Jones, a case coming from the Court of Appeals for the Eighth Circuit,

provides a look into political affiliation discrimination from the view of a law professor who lost

her job. Teresa Wagner was a registered republican who actively advocated for socially

conservative causes, including working for organizations who advocate right to life.32She

worked at the George Mason University School of Law in Washington D.C. for two years. The

faculty of the law school is overly liberal, with only 2 of 50 professors being registered as a

Republican.33 During an interview with Associate Dean John Carlson, Wagner asked if her

conservative views would cause adverse effects in the hiring process, to which Dean Carlson had

no answer.34 Despite widespread support for her application, including other faculty, her job

application was denied. The Court of Appeals summarized the denial as

29
Rutan v. Republican Party of Illinois, 868 F.2d 943 (7th Cir. 1989).
30
Rutan v. Republican Party of Illinois, 868 F.2d 943 (7th Cir. 1989).
31
Rutan v. Republican Party of Illinois, 868 F.2d 943 (7th Cir. 1989).
32
Wagner v. Jones, 664 F.3d 259 (8th Cir. 2011).
33
Wagner v. Jones, 664 F.3d 259 (8th Cir. 2011).
34
Wagner v. Jones, 664 F.3d 259 (8th Cir. 2011).
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Professor Bezanson testified that Wagner's politics were possibly discussed after the

faculty voted not to hire Wagner. Professor Bezanson had clerked for Justice Blackmun

during the time Roe V. Wade was written, has written tributes to Justice Blackmun and

his abortion jurisprudence, and has published legal articles advocating a pro-choice

viewpoint on abortion. In contrast, Wagner's legal career has focused, in part, on

protesting abortion and the cases that established a constitutional right to abortion.35

The Court of Appeals found that the Law School violated the constitution via the First

Amendment, which is binding on the States through the Fourteenth Amendment since Political

Belief and association constitute the court of those activates protected by the First Amendment.

Furthermore, If a state actor refuses to hire an individual because of her political associations,

then the individual has suffered an adverse employment action.36 In 2015 the Supreme Court

denied certiorari, thus upholding the actions of the Court of Appeals.

In the Private Sector

Court cases dealing with political affiliation discrimination in the private sector are far

less numerous, to a point of being impossible to find. This is due to one very important fact in

our constitutional system- Congress and the Courts can act upon the Federal government. They

can write laws such as the Civil Rights Act of 1964, or the Supreme Court can deem

discrimination in the public field based on political ideology to be illegal. In the field of private

action by private employees the Courts have much less reach. While they can deem

discrimination to be illegal on behalf of the government and states, the court has a much more

35
Wagner v. Jones, 664 F.3d 259 (8th Cir. 2011).
36
Wagner v. Jones, 664 F.3d 259 (8th Cir. 2011).
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difficult time extending that protection to the private life. This is a similar problem plaguing

housing; the court can easily act upon public actors, but reaching private actors is almost

impossible. This can be seen with the housing cases Shelly v. Kraemer and Hurd v. Hodge, in

which the Supreme Court held that a federal or state court could not enforce racially

discriminatory housing covenants, but nevertheless, those covenants are legal.3738

As it stands currently the Supreme Court has not extended the protections against

political affiliation discrimination enjoyed by public employees to those of private employees.

This leads to the first conclusion of this paper.

VI. Conclusion 1

The Supreme Court has never carved out an actual protected class for political

affiliation discrimination in public employment or private employment, but the cases above

provide a fairly wide protection in the public field. These cases require strict scrutiny to be used

when a public employer attempts to hire, fire, promote or not promote, recall or not recall, solely

on the basis of an employees political affiliation. Strict scrutiny, the requiring of the government

to provide a compelling governmental interest, is the highest form of scrutiny available to

courts, and it is the level of scrutiny also used in protected class discrimination cases. The Court

uses the First Amendment, along with the Fourteenth and 42 U.S.C to carve these protections,

citing constitutional protections against coerced and enforced beliefs. Perhaps another paper

could examine these arguments and apply them to a paper building upon this one.

37
Hurd v. Hodge, 334 U.S. 24, 68 S. Ct. 847, 92 L. Ed. 1187 (1948).
38
Shelley v. Kraemer, 334 U.S. 1, 68 S. Ct. 836, 92 L. Ed. 1161 (1948).
 Wolf 15

Going back to US v Carolene Products, which stated prejudice against discrete and

insular minorities may be a special condition39, it would seem that the Court has started to

venture towards the direction of including political affiliation under the protection of a complete

protected class of political affiliation. While not an actual, codified, and official protected class

yet, almost complete protection for employees in the public field is a strong start, and provides a

leaping off point for further arguments and papers.

VII. State Laws Banning Political Affiliation Discrimination

While political affiliation discrimination in the public field is fairly illegal, political

affiliation discrimination in the private field is much more insulated. The Court, via their policy

making power, has not taken the steps necessary to facilitate a protection for employees in the

private field. States, however, have the power to enact laws which deem political affiliation to be

either a complete protected class or offer some protections to guard against discrimination.

Several states across the country have in fact created such laws, placing political affiliation

discrimination occurring in the private field in an unconstitutional sphere. These laws are an ever

important first step in the long road to political affiliation protection being included nationally,

and time and time again States acting eventually leads to nationwide change. Obergefell v

Hodges is proof of that fact. This section will examine, in depth, several state and federal laws

protecting political affiliation. 40

39
United States v. Carolene Products Co., 304 U.S. 144, 58 S. Ct. 778, 82 L. Ed. 1234 (1938).
40
For an in-depth chart of all employment discrimination laws throughout the states, the National
Conference of State Legislatures has created one, which can be seen here:
http://www.ncsl.org/documents/employ/Discrimination-Chart-2015.pdf
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Washington D.C.

Beginning with the most expansive and protective law, Washington D.C., via the D.C.

Human Rights Act of 1977, has carved out several additional characteristics that are protected. In

fact, this act brings the total number of protected classes to 19 in Washington DC.41 These

protected classes prohibit all discrimination based solely on them, including in fields of housing

and employment.42 D.C. took the law one step further by including an almost exhaustive list of

activates the protected classes apply to, including economic, cultural and intellectual life to

have an equal opportunity to participate in all aspects of life, including, but not limited to, in

employment, in places of public accommodation, resort or amusement, in educational

institutions, in public service, and in housing and commercial space accommodations.43 This

law is incredibly broad, and chiefly among the new protected classes is political affiliation,

which is defined as the state of belonging to or endorsing any political party.44 An important

note needs to be made; this act does not cover political action, but rather merely belonging to a

political party. Other states have protected action as well, but those will be examined later.

This law prohibits, in the field of employment, employers, employment agencies, or labor

organizations from discriminating on the basis of political affiliation via failing or refusing to

hire, promoting or not promoting, limiting or segregating, depriving any individual of

employment opportunities, or otherwise adversely affecting his status as an employee, among

many other provisions.45 This is a very broad and protective statute, one that applies to every

41
Office of Human Rights, District of Columbia. Who is Protected?
42
D.C. Human Rights Law, Subchapter Two 2, 21402.
43
D.C. Human Rights Law, Subchapter Two 2, 21402.
44
Human Rights Act of 1977 As Amended March 14, 2007 Title 2, Chapter 14
45
D.C. Human Rights Law, Subchapter Two 2, 21402
 Wolf 17

employer, employment agency, or labor organization in Washington DC. Whether they are a

public or a private entity they are still subject to that law. This, in the area of employment, carves

out a complete protected class for political affiliation.

Employment is not the only area in which political affiliation discrimination can occur,

and the area of housing can also be a cause for concern. The D.C. law carves out a protection for

political affiliation in the area of housing in the exact same way it did for employment. With

regards to political affiliation discrimination, it is illegal to interrupt or terminate, or refuse or

fail to initiate or conduct any transaction in real property; or to require different terms for such

transaction; or to represent falsely that an interest in real property is not available for

transaction.46 Additionally, redlining, blockbusting, and steering based on political affiliation is

also illegal.47 There are many other provisions, but the point remains; D.C. has carved out not

only a protected class for political affiliation in employment, it has also protected it in housing.

The last two big provisions of the Human Rights Act of 1977 are in its protection of

political affiliation discrimination in public accommodations and in education. Within the field

of public accommodation the Act protects the full and equal enjoyment of the goods, services,

facilities, privileges, advantages, and accommodations of any place of public

accommodations.48 Regarding education, which is especially important considering situations

present in Wagner v. Jones are real and current, the law prohibits deny[ing], restrict[ing], or to

abridge or condition the use of, or access to, any of its facilities, services, programs, or benefits

of any program or activity to any person otherwise qualified, wholly or partially, for a

46
D.C. Human Rights Law, Subchapter Two 2, 21402
47
D.C. Human Rights Law, Subchapter Two 2, 21402
48
D.C. Human Rights Law, Subchapter Two 2, 21402
 Wolf 18

discriminatory reason, based upon the actual or perceived political affiliation of any

individual.49

The Human Rights Act of 1977 casts an incredibly broad net when it comes to protecting

a persons political affiliation against discrimination. Political affiliation enjoys protection in the

realms of employment, housing, education, and public accommodations. This law, in addition to

the existence of a somewhat protected class at the federal level via Supreme Court decisions for

public workers, creates an almost complete protection. This is vital in the pursuit of ensuring an

individuals first and fourteenth amendment rights are not violated.

California

While Washington D.C. has the broadest anti-discrimination laws which apply to many

areas, it is at the same time relatively narrow. A persons political affiliation, as defined as the

state of belonging to or endorsing any political party50, is the only political facet that is

protected. This covers intrinsic beliefs, but actual political action is left by the wayside.

California has taken a step further in protection by also including political action under their

protected class doctrine, but this comes with a cost. While D.C. protects political affiliation in

many areas, California only protects it in employment.

Chapter 5 of the Labor Code, Division 2, Part 3, is the operative section by which

California protects political affiliation. This law is much more expansive within the field of

employment when compared to the D.C. law, and it provides for two main provisions. The first

makes the act of forbidding or preventing employees from engaging or participating in politics

49
D.C. Human Rights Law, Subchapter Two 2, 21402
50
D.C. Human Rights Law, Subchapter Two 2, 21402
 Wolf 19

or from becoming candidates for public office51 illegal. And the second provision makes it

illegal to control or direct, or tending to control or direct the political activities or affiliations of

employees.52 These provisions are important, since an act can be illegal not only if it is overtly

discriminatory, but also if it tends to have that effect. That provision broadens the scope of

potential litigation considerably.

The third and last provision of the California law states that No employer shall coerce or

influence or attempt to coerce or influence his employees through or by means of threat of

discharge or loss of employment to adopt or follow or refrain from adopting or following any

particular course or line of political action or political activity.53 While this law is broader when

compared to the D.C. law in the sense that it protects political action, it is at the same time quite

underwhelming. It does not protect promotions, decreases of pay, loss of privilege, or anything

of the like. An employee is free to express their views, but the employee is also not as protected

as they could be.

New York

Section 201-D, better known as the Legal Activities Law, is one of many adopted by

New York with the goal of ending employment discrimination. Unfortunately, much like

California and unlike Washington D.C., New York has not adopted political affiliation under a

protected class in fair housing. However, much like California and D.C., the New York

employment law offers protections that are unique and not seen elsewhere. Differences that need

to be examined.

51
California labor code division 2 part 3 chapter 5
52
California labor code division 2 part 3 chapter 5
53
California labor code division 2 part 3 chapter 5
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New York uses the term political activities rather than political affiliation, a

distinction which will prove to be important.54 This subtle difference allows a broad scope of

protections, and it allows New York to have the most defined law when compared to both D.C.

and California. Political Activities is defined in three ways; (i) running for public office, (ii)

campaigning for a candidate for public office, or (iii) participating in fund-raising activities for

the benefit of a candidate, political party or political advocacy group.55 This law grants

protection to activities beyond merely marching or parading, rather, people in New York are

protected even as far as fundraising and campaigning.

New York does include several caveats that are not seen in California or D.C., first being

that an individual is only protected in their political activities outside of working hours.56

Additionally, activities which creates a material conflict of interest related to the employer's

trade secrets, proprietary information or other proprietary or business interest could be used as a

basis for firing.57 This is perhaps what D.C. and California have in mind as well, however that

provision is not fully codified in their laws.

Other States and Territories

Wisconsin has somewhat of a protection for political affiliation, although it is quite weak

when compared to the laws above. Wisconsin, as is common, does not contain a housing

protection. In fact, it only protects an employees right to decline to attend a meeting or to

participate in any communication about religious or political matters.58 While New York,

54
NYS consolidated labor, article 7, 201 D
55
NYS consolidated labor, article 7, 201 D
56
NYS consolidated labor, article 7, 201 D
57
NYS consolidated labor, article 7, 201 D
58
Wisconsin Fair Employment, 11.31, 11.32, 11.321
 Wolf 21

California, and D.C. have laws that are in the affirmative, thereby granting a right for someone

to do or believe something, Wisconsins law is decidedly more negative. Wisconsin prevents

an employee from being forced to believe or attend a meeting, but it does not protect an

employees political action. In fact, the law is hazy on whether or not someone could be fired for

having certain political beliefs. However, it is at least more protection than afforded by most

states.

Puerto Rico, while not a State, carries with it a strong political affiliation protection. Act

number 121, as approved on September 13, 1997, provides for Puerto Ricos fundamental

protection. Interestingly, this law provides protection for both political affiliation and political

ideology.59 This act makes a wide number of actions illegal solely on the basis of political

affiliation or ideology discrimination, including firing, hiring, reducing wage, affecting status,

and limiting the employee in any way.60

VIII. Conclusion Two: D.C. Has the Strongest Protection for Political Affiliation, but it

Could Be Strengthened Further

Analyzing several state laws providing for the protection of, in some cases, political

affiliation, and in others, political action or ideology, yields an important note; states across the

country, and even some territories, are beginning to enact several pieces of new anti-

discrimination law which includes political affiliation. While the number of states with these

laws is few, the fact that some states are taking the initiative shows that the idea of protecting

political affiliation is not outlandish.

59
Puerto Rico Act No. 121
60
Puerto Rico Act No. 121
 Wolf 22

Coupling with the Supreme Court cases on the topic shows that Washington D.C. has the

most complete protection by far. Their laws prevent not only employment discrimination via

political affiliation, but also housing, public accommodations, among others.61 This expansive

law provides the ultimate protection for the private and public sector; a protection which is

further strengthened by the Supreme Court. Discrimination via political affiliation in D.C. is, for

the most part, at least in law, eradicated.

While D.C. is the most protected, it is missing some crucial points that are addressed in

by laws in California, New York, and Puerto Rico. The D.C. law could be amended to add

political action, as seen in California,62 as well as political ideology, as seen in Puerto Rico63.

Additionally, providing for fully codified protected actions, such as donating and participating

in campaigns, as is protected in New York64, could be added as well. Adding these provisions to

all aspects of the D.C. law, including housing, would provide for the most comprehensive

political affiliation protection ever introduced into the United States.

VIII. Conclusion of Part One

This section has shown that employees in the public field are insulated from

discrimination due to Supreme Court decisions, and some states have provided for additional

protection, including going to the point of enacting an entire protected class. This first section

shows that political affiliation discrimination being included as a protected class is, while in its

infancy, a feat that is possible. Congress, using the Court cases above, and taking from the

several states that have enacted anti-discrimination laws, could possibly being to apply them to

61
D.C. Human Rights Law, Subchapter Two 2, 21402
62
California labor code division 2 part 3 chapter 5
63
Puerto Rico Act No. 121
64
NYS consolidated labor, article 7, 201 D
 Wolf 23

the national level. Part one is integral to setting up the following Congressional analysis of the

possibility of political affiliation being included as a protected class.

Part Two

The first part of the paper examined court cases and various state level anti-

discrimination laws, and came to two important conclusions. The first being that the Supreme

Court has, in the field of public employment, carved out somewhat of a protected class for

political affiliation. Secondly, several states have enacted anti-discrimination laws, each adding

their own unique take on protecting political affiliation, with D.C. having the most

comprehensive law.

The second part of this paper takes a look towards Congress with the hopes of answering

several questions regarding protected classes. Including a look towards the Civil Rights Acts,

under what provision of the Constitution Congress acts under while passing these laws, how the

Supreme Court has ruled and if a national protected class of political affiliation is possible based

on current definitions of what entitle a protected class. Part one of this paper provided the

background, and this part takes an in-depth look into the real, working nature of a political

affiliation protected class, beginning first with a look towards the Civil Rights Act of 1964

I. The Civil Rights Act of 1964

The protected class doctrine began in the 60s, called for by congress in an attempt to

alleviate the harms society caused to some select groups. Beginning with Public Law 88-352 (78

Stat. 241), better known as the Civil Rights Act, Congress began to carve out exceptions in the

employment sphere, deeming some characteristics too fundamental to be the cause for

discrimination. Title VII is the reigning law in this field, stating that it shall be unlawful for an
 Wolf 24

employer to limit, segregate, or classify his employees or applicants for employment in any way

which would deprive or tend to deprive any individual of employment opportunities or otherwise

adversely affect his status as an employee, because of such individuals race, color, religion, sex,

or national origin.65 Congress was clear in its action; no person nor government can

discriminate in the field of employment due to one of those characteristics. The law touched not

only on governmental action, but also in the private action of personal business.

The Civil Rights Act of 1964, and more specifically Title VII, had incredible effects

across the country. Gone were male only jobs, white only jobs, and any mix or design of the like.

In fact, The laws eleven sections prohibited discrimination in the workplace, public

accommodations, public facilities, and agencies receiving federal funds, and strengthened

prohibitions on school segregation and discrimination in voter registration.66 The Supreme

Court noted in Heart of Atlanta that the act was the most comprehensive undertaking to

prevent discrimination in voting, as well as in places of accommodation and public

facilities.67These broad sweeping provisions were met with some debate, but throughout the

country the act was loved by many. It garnered over 58 percent approval in a Gallup poll of

public opinion in 1964, and managed a 73 to 27 vote in Senate.6869

Despite that support, all was not well for the act. Challenges before the highest court in

the nation came swiftly. And even though the Supreme Court was led by the devout liberal Chief

Justice Earl Warren, the act lay in a state of anxiety.

65
Title VII of the Civil Rights Act of 1964
66
Rauh, Joseph. "The Civil Rights Act of 1964: A Long Struggle for Freedom
67
Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 85 S. Ct. 348, 13 L. Ed. 2d 258 (1964).
68
Rauh, Joseph. "The Civil Rights Act of 1964: A Long Struggle for Freedom
69
Bell, Peter. "Broad Support for Civil Rights Act.
 Wolf 25

Two Supreme Court Decisions Heart of Atlanta Motel Inc. v. U.S.70 and Katzenbach v.

McClung71, put the debate to rest, and upheld the 1964 act to be constitutional under the

Commerce Clause. In Katzenbach, there was significant discrimination in restaurants, and it was

found that the restaurants violated the Civil Rights act of 1964 as a result. The act was

challenged on the ground that it was unconstitutional, and the Court disagreed. It found that the

interstate flow of food and upon the movements of products generally72 and the fact that

discrimination posed burdens on blacks who traveled interstate, made the Act appropriate within

the commerce clause. The Court emphatically closed by stating The Civil Rights Act of 1964

we find to be plainly appropriate in the resolution of what the Congress found to be a national

commercial problem of the first magnitude. We find it in no violation of the express limitations

of the Constitution and we therefore declare it valid.73

II. The Civil Rights Act and the Constitution

As with all laws and acts enacted by Congress, they have to be rooted in some form of

constitutional provision. The federal government is one of enumerated, rather than one of

implied powers. As such, Congress is quite limited with the acts they can create, and on the

surface the Civil Rights Act of 1964 is quite broad. Congress passed that law, as well as all of the

following Civil Rights Acts, via the ever important Commerce Clause power. A full, in depth

examination of the Commerce Power is the subject of many books hundreds of pages long, and

as a result, the following is a rather short overview.

70
Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 85 S. Ct. 348, 13 L. Ed. 2d 258 (1964).
71
Katzenbach v. McClung, 379 U.S. 294, 85 S. Ct. 377, 13 L. Ed. 2d 290 (1964).
72
Katzenbach v. McClung, 379 U.S. 294, 85 S. Ct. 377, 13 L. Ed. 2d 290 (1964).
73
Katzenbach v. McClung, 379 U.S. 294, 85 S. Ct. 377, 13 L. Ed. 2d 290 (1964).
 Wolf 26

The Commerce Clause, as contained in Article I, Section 8 of the United States

Constitution, allows Congress to regulate commerce with foreign nations, and among the

several states, and with the Indian tribes. It is a plenary power, meaning only Congress can

regulate it, and this affords incredible latitude in law making decisions. This ever important

phrase started off relatively innocuous, and has since grown to be one of the premier powers of

Congress. Under it, Congress ha[s] license to enact far-reaching legislation in a variety of

contexts, even those that were ostensibly unrelated to commerce.74 This is due to the fact that

even if something is not interstate commerce per say, it can be regulated by congress if it

substantially affects interstate commerce.7576 Congress enacted the Civil Rights Act under this

provision of the Constitution, arguing that discrimination in one area of the Nation could cause

an economic effect in another.7778

IV. Political Affiliation as a Complete Protected Class

The Constitutional Provision for the commerce clause is broad, enabling it to be one of

the most important powers possessed by the Congress. It enables Congress to reach into many

facets of every citizens life, and it is the power by which Congress could pass an additional

protected class for political affiliation. Using the above requirements, those of economic effects,

Congress could make the argument that political affiliation discrimination is a private action that

effects commerce interstate. Much like Heart of Atlanta, in which denying blacks from rooms

74
Cornell Law Legal Information Institute, "Commerce Clause."
75
NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S. Ct. 615, 81 L. Ed. 893 (1937).
76
Cornell Law Legal Information Institute, "Commerce Clause."
77
Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 85 S. Ct. 348, 13 L. Ed. 2d 258 (1964).
78
Katzenbach v. McClung, 379 U.S. 294, 85 S. Ct. 377, 13 L. Ed. 2d 290 (1964).
 Wolf 27

was deemed to have an economic effect, political affiliation discrimination could also be

included under that penumbra.

Looking deeper into the protected class doctrine, in order for an individual to gain

recovery from discrimination, the individual must be a member in one of the constitutionally or

statutorily protected areas.79 Furthermore, in Massachusetts Board of Retirement v. Murgia, the

Supreme Court held that old age is not a suspect classification, since age is not a discrete and

insular minority.80 That has since been overturned by Congress, but an overarching point

remains- class based protection requires individuals to prove an immutable or deeply embedded

differences to obtain protection from being treated differently.81 This creates problems when

attempting to include political affiliation under the penumbra of the protected class doctrine.

While it could be argued to be a deeply embedded difference considering the ever increasing

nature of political polarization, as it stands currently that argument is a difficult bridge to venture

across. In a world where race, national origin, color, and so on are protected classes, political

affiliation being included under that penumbra may be a step too far. It is not an immutable or

deeply embedded difference, although perhaps with the ever increasing political polarization of

this country, it could be.

However, with that said, an argument could be made along the same lines of religion

being included as a protected class. If a persons religion- a belief that can change is deemed to

be a deeply embedded difference, or is part of an insular minority, then perhaps political beliefs

could be included as well. Perhaps a group of people could hold their political beliefs as deeply

as their religious beliefs, yet under current Constitutional standard, those people could be

79
Levit, Nancy. "Changing Workforce Demographics and the Future of The Protected Class Approach."
80
Levit, Nancy. "Changing Workforce Demographics and the Future of The Protected Class Approach."
81
Levit, Nancy. "Changing Workforce Demographics and the Future of The Protected Class Approach."
 Wolf 28

discriminated against based upon their political beliefs. From a housing or employment

standpoint, a person could be protected from discrimination, and in the same light, be open to

discrimination, based on beliefs they hold. Current Constitutional and Congressional actions

limit discrimination on one hand and not the other.

The argument that political affiliation could encompass the same sort of realm as

occupied by a protected class by religion is a novel idea, open to further argument from political

scientists and attorneys across the country. However, this final analysis leads to one important

point; without change in the definitions of what constitute a protected class including more

characteristics will be difficult, if not impossible. Political affiliation, sexual orientation, among

other characteristics, will continue to be left out. Papers such as Nancy Levits Changing

Workforce Demographics and the Future of the Protected Class Approach tackle the idea that

the current approach is misguided, and should be read immediately after this paper.

Conclusion

Part One of this paper examined various court cases and state laws offering political

affiliation protection, offering several sub conclusions. Notably, the fact that the Supreme Court

has not carved an actual protected class for all employees, but within the public field, employees

are well protected from political affiliation discrimination. Additionally, part one shows that

several States and territories have enacted protection for political affiliation, with D.C. offering a

complete protected class. These two sub conclusions show that political affiliation being

included in the protected class doctrine is not outlandish.

Part Two looks to federal laws and the constitutional authority of Congress to enact new

protected classes, coming to the ultimate conclusion that it would be difficult to place political
 Wolf 29

affiliation in the protected class doctrine. However, at the same time, part two shows strong

arguments that political affiliation could be included considering religion has also been

protected.

This paper forms the front-end argument of political affiliation being included as a

protected class, and offers several sub conclusions that can be expanded upon further in future

papers. Research into the religious and political affiliation relation is required and could be

fruitful.
 Wolf 30

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 Wolf 33

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