Should Political Affiliation receive Title 7 protection as a Protected Class?

[WarGamer]

Just throwing this out there.

I would need to read more opinions and summaries to form an opinion.

I know it's popular to support punishing political adversaries at times... but should it be OK?

Here's an interesting paper

https://brooklynworks.brooklaw.edu/jlp/vol26/iss2/4/

As the political climate in the United States becomes increasingly divided, more and more employees are fired for their off-duty political speech. Political speech is highly protected from government interference under the First Amendment, but it is not
well protected from discrimination in employment matters.

This is despite the fact that employers can be just as powerful and influential as the government. Although employee political speech is not currently protected at the federal level, there are a myriad of state statutes that protect employee speech from employer retaliation. Some of these state statutes protect speech on a broader level, others protect only political speech, and some states do not protect any employee speech from retaliation.

Because state statutes can vary so widely, a comprehensive federal statute protecting off duty political speech (that includes a framework for addressing speech made on social media) is a better approach to protecting employee speech. This Note proposes the inclusion of political ideology and speech as a limited protected class under Title VII of the Civil Rights Act of 1964, to protect applicants and employees from discrimination based on their off-duty political speech.

[LanternWaste]

1. To what specific and relevant end?

[WarGamer]

3. Should your boss be able to fire you for a bumper sticker on your car?

"I Stand With Hillary" or "MAGA"?

I haven't formed an opinion, just think it's an excellent intellectual exercise.

[Jedi Guy]

5. If it's my private vehicle and has no company insignia on it, no, absolutely not.

My boss has no business telling me what I can or can't have on my car, as it's not their property and isn't in any way affiliated with the company.

[Hugh_Lebowski]

20. Right. But in many states, you wouldn't be protected from being fired for that

That's the point of this intellectual exercise.

[Jedi Guy]

27. Agreed, and I think employees should be protected from being fired for that. That's bullshit. N/T

[Moostache]

2. FUCK NO...once we start down that path, where law is meaningless, count me out of this country.

One man, one vote.
Equal protection under law.

Those are the two most important bedrock principles of our form of government.

One of them (voting rights) is under constant assault and attack and the other (law) has been perverted at least since 2000 election coronation of Bush the Lesser (but probably in a much darker way since Kennedy's assassination).

Protected classes of citizens that shield them from consequences of free speech (not the speech itself, but the reactions and consequences it provokes) is a horrible long game idea (IMHO)...

[Jedi Guy]

4. I think it should be, at least based on certain criteria.

If I stand on a street corner wearing a company t-shirt or on company time and hold forth on my political views, or present my views as those of the company, I think my employer has every right to take steps to dissociate themselves from that because I brought them into it.

On the other hand, if I do that on my own time while wearing my own clothing and don't bring up my affiliation with the company at all, as far as I'm concerned it's none of their damn business.

Allowing companies to fire people for political speech has the same chilling effect that it would if the government were punishing people for political speech. Sure, your employer isn't going to throw you in jail, but getting fired for doing something perfectly legal is kind of absurd, in my opinion.

The problem isn't so much the companies themselves as our fellow citizens, though. Companies are motivated by money, so if a bunch of people boycott them because some of their employees espoused viewpoint X, the company will take steps to avoid that boycott by canning those employees to placate the mob. Otherwise the company has no reason to give a damn. They're just responding to that segment of the market who wants to mind everyone else's business and/or punish their adversaries, as you pointed out.

[WarGamer]

6. good points.. thank you! FWIW the paper above was written during TFG reign.

I don't want to live in a country where a bumper sticker or the radio or blog playing in my office can get me fired.

[rockfordfile]

19. If you're at work with right-wing crap on the radio or blog, you should be fired.

[Jedi Guy]

23. If that's the case, the reverse applies just as much.

Or is your stance "I'm okay with politics in the workplace as long as they're my politics only"?

[Jedi Guy]

25. Neither do I.

At some point "live and let live" (or at least "mind your own business" ) is going to have to reassert itself. If people make it their personal mission to destroy anyone who doesn't share their politics, we may as well pack up and turn out the lights, because the country is effectively over.

I don't really care about someone's politics on an interpersonal level. I care if they're a decent person. I've known conservatives (yes, even Trump supporters) who were decent people, and I've known progressives who were raging assholes. Given the choice, I'd prefer to associate with the former.

[StarfishSaver]

45. Key question: How do you define"political ideology" or "political.affiliation"?

Is it speech directly related to or membership in a defined political party? Or something broader? And then, how broad ?

For example would a person screaming "Black Lives Matter!" and "Defund the Police!" be considered part of the same protected class as someone whose truck is festooned with Make America Great Again Trump 2024 bumper stickers?

[Jedi Guy]

67. Yes, that hypothetical second person would also be protected.

Again, the caveat being that they didn't do so on work time, in work apparel/uniform, and didn't attempt to present their views as those of their employer. If any of those are true, then in my view the employer was brought into it by the employee and has every right to take action. Otherwise the employer should be prohibited from taking any action against the employee for engaging in legal, protected speech on their own time.

[StarfishSaver]

68. So the second person would be protected but the first. person wouldn't? Or would both be protected?

If it's the latter, how does the first person claim protection as a member of protected class?

You still have not defined "political affiliation." Until you do, your proposal is completely unworkable.

[Jedi Guy]

75. Apologies, I was getting ready for work and misread your post. Both would be protected.

Probably the easiest way to define political affiliation would be membership in a political party/organization, whether mainstream or otherwise. That'd leave out a lot of people who don't belong to political parties, though it may well be that those independents (for want of a better term) are somewhat less likely to be active in a way that's relevant to the discussion. I'd be willing to bet that most people who are independent in a political sense are also fairly apathetic about such things, or they refuse to join a party based on one principle or another.

[StarfishSaver]

77. How would the first example arise from his political affiliation?

Just because a person belongs to a political party does not mean that everything they say is the result of that affiliation. In my example, the employee's speech not only has nothing to do with the Republican Party or its positions, it's actually in direct conflict with the party. So clearly, his comments have nothing to do with his political affiliation.

And it would be completely and unconstitutionally untenable to base determination of one's membership in a protected class on whether they have joined a political organization. Protected classes are defined by possessing immutable characteristics - such as race, gender, age, etc. The law does encompass the ability to move in and out of protected classes at will just by signing up for membership in an organization.

Religious affiliation, of course, is not an immutable characteristic. But religious affiliation is also not a protected class. Protection of religious freedom arises out of a different part of the Constitution - it is a First Amendment right, not a creature of the 14th Amendment Equal Protection Clause. The freedom to practice religion is protected whether or not a person belongs to a church or religious organization. It's a completely separate and unique category that's not even relevant here.

What you're talking about is created a protected class for people whose status is not specifically protected by the First Amendment but who instead have a proven history of being systemically discriminated against based on immutable characteristics and therefore need to be protected under the 14th Amendment's Equal Protection Clause. Political affiliation is not the same as race, gender, age, disability, etc. And, even then, being in a protected class does not shield persons from all consequences of their behavior. A person can be hired or fired for words and actions they claim are the result of their ethnicity or religion or handicap, etc. - even if it takes place on their own time and away from the workplace - if an employer believes in good faith that such words and actions undermine their job.

[Jedi Guy]

80. Sorry, I'm not seeing where you mentioned the Republican Party here, unless I'm missing it.

My argument boils down to "what you do off the job, as long as it's legal, should have no impact on your job." So it could be separated entirely from the 14th Amendment, and instead fall under the First Amendment. I recognize that the First Amendment doesn't apply to private actors, only state actors, but I don't think it's unreasonable to extend protections of the First Amendment to shield employees in that way.

If an employee is to be fired based on legal activity done on their own time, the employer should have to prove a demonstrable impact to the job, not just a belief. Otherwise this allows conservative/progressive bosses to can people "just because" and I don't think anyone's livelihood should be stripped from them "just because" the boss doesn't like their politics or beliefs. Either prove the impact to the job, or learn to deal with people who think differently.

[StarfishSaver]

83. Sorry - I got this mixed up with a hypothetical I posed in another post

Would a Republican who gets fired for leading a "Defund the Police" chant at a Black Lives Matter rally fall into the protected class? After all, it's pretty hard to argue that this speech is based on their affiliation with the Republican Party. Would only speech and activity directly related to or in advancement of an official political organization count?

Should the African-American owner of a business catering to African-American and Jewish customers be legally prohibited from firing an employee who, on his personal time, wrote an editorial calling Jews filthy bloodsuckers who should be rounded up and deported, but claimed that he was merely expressing the views of the New Black Panther Party of which he was a member?

[Jedi Guy]

84. Absent the "protected class" bit since I think this is more of a free speech issue, yes.

Both should be protected unless and until the employer can demonstrate an impact to the performance of the employee's job. I think an argument can be made that BLM is a political organization as well as a human rights organization, even though it's not a political party.

In the latter case specifically, if the employer is unable to prove that the employee treats Jewish customers differently or with disrespect on the job, then the editorial he wrote is none of the employer's business.

This is a bit flippant, but if people got fired for their thoughts about their customers, no one would have a job. When those thoughts cross the line into actions on the job, then there's an issue.

[StarfishSaver]

85. BLM is not a political organization

In fact, it CANNOT be a political organization since it is a 501(c)3 organization.

So, under your scenario, a person who espoused odious view would be protected if they belonged to the Nazi Party, but not if they belonged to BLM.

You don't think that an employee's expressed views about Jews could negatively impact the employer's business even if he treated customers well? I certainly would not patronize a place that employed open anti-Semites. I wouldn't care if the anti-Semites treated Jews differently or not. I would not use that business.

What if a daycare employed a person who belonged to a political organization that openly advocated for the elimination of all child molestation laws and, in his spare time, he wrote editorials saying that the only reason he did not molest toddlers was that it's illegal and he wasn't a criminal. But if child molestation was decriminalized, he said, he'd try to molest every child he could get his hands on.

If that employee performed his job well and never molested any children on the job (or elsewhere, for that matter, because his religion taught him that breaking the law was a mortal sin, but took no position one way or the other on sex with children), would the daycare be retain him if he was already employed there or hire him if he was not, but applied for a job? Could this employer be forced to keep and the other employees be forced to work with and the children in their care be forced to interact with this person because his loud and open advocacy of the legalization of child molestation was a direct result of his affiliation with this organization, was well within his First Amendment rights, and always done away from the workplace?

[Jedi Guy]

86. BLM may not be a political organization, but it certainly has a political agenda.

And it exerts political pressure in an effort to see that agenda brought to fruition. For the purposes of the discussion, I think someone who supports and advocates for BLM should be protected just as much as the hypothetical Trump supporter whose pickup is festooned with stickers.

You're also proposing extreme examples to a frankly absurd degree, especially with the hypothetical child molester. Suffice it to say that I'm of the opinion that an employee's thoughts, beliefs, and activities off the job are none of the employer's business, provided they are legal. A person's professional and personal lives are, and ought to remain, separate unless and until they drag their employer into the matter. What I do or say off the clock is not my boss's business unless I make it her business.

We're clearly not going to agree, so why not let's just say we agree to disagree and end the discussion here?

[StarfishSaver]

88. Sooo, association with any organization with "a political agenda" puts people in a protected class?

You also still have not actually defined "political affiliation." You just keep pointing to examples of organizations you think might count. But the law doesn't work that way and now you're extending your undefined term to include organizations with "political agenda" without defining what that is either. Therein lies one of the problems. Before any law can take effect that creates a protected class, that class has to be very specifically and narrowly defined. We can't just take a "I know it when I see it" approach.

And you may think my fact patterns are absurd, but lawyers and judges are trained to consider every possible set of circumstances that could occur under a law - even if a layperson thinks it's absurd. We don't have the luxury of not worrying about things that we think MIGHT not happen. Once a law is in place, it will affect everything in its purview, not just circumstances we anticipated or that we think are reasonable. It's our job to try to consider all manner of potentialities to minimize the damage of unintended consequences.

So while you don't like my hypothetical, it COULD happen weirder things occur every day in human endeavors. And if it were to happen, the law could not at that point make an exception for him because people might think what he says and does in her personal time is somehow more reprehensible than other offensive comments and behaviors. If you pass a law that prohibits an employer from firing a person for expressing offensive views while "off the clock," that would apply to EVERYONE, whether it's a person giving a speech supporting a political candidate at a rally or someone burning a cross at a Klan rally or a daycare worker and wannabe child molester calling for the decriminalization of pedophilia. If you don't think the hypothetical child molester should be considered within the context of your proposal, you are demonstrating that your proposal is seriously flawed.

[Irish_Dem]

7. No, the sociopathic GOP will just claim that all their crimes are protected.

[WarGamer]

8. Are you OK with being fired because you watch Maddow YouTube videos in your cubicle on break?

Think about it

[Irish_Dem]

9. People are foolish in today's climate to bring politics into the workplace.

The GOP are ruthless and at war with the Dems.

The Magats are killing their own children for God's sake.

[WarGamer]

10. But do you support the right of a boss to fire you for politics?

[StarfishSaver]

16. Bosses can fire people for pretty much anything they want

except on the basis of race, gender, nationality, and a few other immutable categories. There's no need to make political affiliation of protective class since we don't have a history of discriminating against people based on their politics in violation of the 14th Amendment.

Bad idea.

[StarfishSaver]

14. This would turn the 14th Amendment on its head a s make it completely meaningless

Unless we're ready to include every possible type of activity or choice in a protected class, political affiliation - which is a choice, not a religion or status - we should not receive special protection.

Not to mention the fact that this would stomp all over the rights of minorities, women, and other classes of people with a history of true victimization and actually need protection of the law. We don't need to force them to compete for their rights with people who don:t need protection by granting equivalent protection to people who don't need protecting.

[Klaralven]

11. Would Commies and Nazis be protected?

Shining Path? ISIS?

[I_UndergroundPanther]

12. Assholes

Should never be a protected class. Never ever.

[StarfishSaver]

13. No

Political affiliation is a choice.

[TheProle]

30. Are you contending that religion is not?

[StarfishSaver]

36. Freedom of religion is protected by the First Amendment

Last edited Wed Sep 8, 2021, 11:25 PM - Edit history (1)

Protection for protected classes arises under the 14th Amendment.

[Act_of_Reparation]

71. Political speech is similarly protected by the First Amendment.

But I think the OP's proposal confuses the issue here.

There's a big difference between losing your job for being something and losing your job for doing something. I don't have the numbers in front of me, but I suspect that unlike actual protected classes, very few people are fired for simply belonging to a particular political organization or holding certain political opinions. Most are fired because they shoot their mouths off and act like idiots at work.

[StarfishSaver]

74. ALL forms of speech are protected by the First Amendment

Freedom of speech is protected, regardless the type of speech it is. Religion is treated as a separate freedom, in and of itself. Political affiliation is not.

Carving out special protections for political speech or conferring protected class status on people based solely on their affiliation with a political entity - while not providing protections for other types of speech and affiliations (Black Lives Matter or Federalist Society members, for example) - not only doesn't make any legal sense, it would be completely unworkable.

[billh58]

15. It appears that

employer discrimination based on political views or affiliation is not covered by Title VII:

Can an employer fire or discriminate against an employee based on political beliefs? You may be surprised to learn that, for many employees, the answer is yes. Federal law does not protect private employees from discrimination based on their politics. However, some states do protect employees from certain types of political discrimination. And, an employer may not use an employee's politics as a pretext for discrimination based on a protected trait, like race or religion.

Not all forms of discrimination are illegal, however. It is illegal under Title VII of the Civil Rights Act of 1964 for employers to make job decisions based on race, color, national origin, religion, and sex. Other federal laws prohibit discrimination based on age, disability, and genetic information. However, political views aren't covered by these laws and the laws of most states. This means employers are free to consider political views and affiliations in making job decisions.

Many people mistakenly believe that the First Amendment of the Constitution protects them from discrimination based on their politics. After all, the First Amendment guarantees our rights to free speech, freedom of the press, free exercise of our religious beliefs, free assembly, and to petition the government for redress of grievances. Shouldn't these rights protect us from discrimination based on our political beliefs and statements?

The First Amendment does protect our political views—but only from actions taken by the government. Those who work for public employers—the federal, state, or local government—are protected by the First Amendment and might have a valid legal claim if fired for their political beliefs, depending on the circumstances. However, those who work for private employers don't enjoy these types of job protections under the First Amendment.

https://www.nolo.com/legal-encyclopedia/can-employers-discriminate-based-on-political-beliefs-or-affiliation.html

We all saw how TFG and his cronies violated the Hatch Act with impunity, mainly because the right-wing DOJ at the time condoned their actions. My question would be, why would a Liberal Democrat want to work for a slimy, fascist, right-wing company (and at lower wages most likely) in the first place? I hear The Pillow Guy is hiring...

[StarfishSaver]

17. I doubt any liberal Democrat wants to be forced to hire and retain a MAGA employee

any more than Pillow Guy would want to be forced to hire any of us.

[billh58]

18. Natural selection

based on political affiliation...

[Jedi Guy]

22. So if you were the boss and found out one of your employees was a Trump supporter,, what then?

For the purposes of this discussion, let's assume that this person keeps his politics to himself while on the job and is a good worker, and you've never had issues with him in the past. You learn through a third party (another employee, a social media post, whatever) that he's a Trump supporter. Having learned that, you'd fire him?

[StarfishSaver]

33. I probably wouldn't fire him just for being a Trump suppoeter

As long as he kept it to himself, performed his job well, and didn't behave like an asshole at work.

But I certainly would reserve the right to fire him if I chose.

An employer has a right to fire an employee for any reason they choose, as long as it's not based on one of the very limited protected classes. Political affiliation has no more business being of protected class than social affiliation or where someone went to college.

Remember, protected classes aren't shielded just from being fired for being a certain status. They also cannot be discriminated against in hiring or in housing or in offering of public accommodations or in any number of other endeavors throughout society.

As an employer I have a right to decide whether or not I want to hire a Trump supporter over a Democrat. If I'm on the admissions committee of an HBCU, I have the right to deny admissions to a Trump supporting right winger whose views would be offensive and painful for the vast majority of the student body. If I'm renting an apartment, I certainly don't want to be forced to rent it to a Trumper, and I'm sure my next door neighbors would appreciate it if I didn't sell my house to a family of MAGAs. Under your plan, I would have no legal right to decide whether to hire, associate or do business with someone based on their political affiliation - a bastardization of the point of the 14th Amendment, which was not created to protect every single person from being discriminated against for any reason but to ensure former slaves and their descendants receive equal protection under the law and has since been expanded on a limited basis to apply to other marginalized and historically abused persons.

[Jedi Guy]

44. I'm not suggesting full-fledged 14th Amendment protections for political affiliation.

I am, however, suggesting that employers shouldn't be allowed to terminate employees who engage in behavior that is legal, protected speech under the First Amendment, or for simply holding beliefs the employer dislikes. To my way of thinking, firing an otherwise good employee simply because the boss doesn't like their politics is ridiculous. That shouldn't enter the equation at all because taking away a person's livelihood is a huge deal. As far as I'm concerned, the hypothetical boss who did fire someone just because of their politics is an asshole, and a large part of the problem facing America.

[StarfishSaver]

49. You're essentially arguing that an employer should be forced to tolerate speech it finds offensive

That's just as bad, if not worse.

For example, as an African American woman who has run several businesses, I should not be required to hire or retain an employee whose views I find offensive and counter to my own political beliefs. If I hired someone and then found they were a rabid Trump supporter who, in their off hours spewed racist, right wing propaganda, you can bet I'd fire them on the spot - and that would not make me an asshole. On the contrary, it would be a necessary move to protect myself, my business, and my other employees from an asshole. There is no way that the government, through its laws, should force me to not only associate with, but enrich someone I find abhorrent

While I am not among the "government needs to stay out of private business affairs" laissez-faire crowd, I do see such a law as an egregious overstep into private business practices and decision making.

[A_Woman_from_MI]

61. +++

I am also not a fan of laissez-faire capitalism, but there is a certain schadenfreude watching it play out for those who champion it.

[Jedi Guy]

65. In my view, yes, you'd be an asshole. Guess we'll have to agree to disagree.

The speech in question, during his off hours, is legal, protected speech. If he's otherwise a good employee and does his job well, what he does in his off hours doesn't matter. This should be the case whether he's a rabid Trump supporter or a rabid Antifa activist. Otherwise employers get to play "morality police" regarding what employees do on their own time, and I'm not interested in that at all. Employers should concern themselves with what employees do on the job, period, except in the case of illegal activity outside of work.

As an example, here in Ontario a few years ago, the College of Nurses revoked the certification of a nurse because her social media revealed her involvement in the BDSM scene. The College felt that her activity brought them into "disrepute" despite the fact that it was legal activity between consenting adults. They should have had no right to do that. Political activity/beliefs should be no different.

[StarfishSaver]

69. Wow.

Yes. We will have to agree to disagree as I think your position is completely out in left field. Fortunately, it would never come into fruition because it's blatantly unconstitutional (among other things, it violates the right of free association, which is a two-way street that doesn't apply only to employees).

Have a good day.

[Jedi Guy]

76. I don't think my view is particularly left field at all.

I think it's wrong to fire someone based on what they do on their own time, as long as that activity is legal. Not sure what's so controversial about that. A person's professional and personal lives are separate and should remain so unless they drag their employer into that activity.

[StarfishSaver]

78. There's a reason your proposal has never been enacted and never will be

Because it IS completely out in left field as a matter of legal and Constitutional law.

[Jedi Guy]

81. Then we resign ourselves to a country where bosses vindictively fire people over politics.

Not a fan of that scenario, personally. But I don't live in the States anymore and have no plans to return, so at this point it's nothing to me. I don't see how a boss saying, "Oh hey, I found out you're a Republican/Democrat/Green, clean out your locker and get the fuck out" makes the country a better place. Rather the reverse.

ETA: While we're at it, what if my boss is a huge Trekkie and found out I'm a Star Wars fan? If he can't bear the idea of a Star Wars fan in his office, should he be allowed to fire me, even if I do my job well and there have been no issues up to this point? Doesn't that seem like an utterly ridiculous reason to take away a person's livelihood?

[StarfishSaver]

82. You act like this is a one way street - or that your proposal would only apply to "bosses"

If a group of people become a protected class, that would be extended far beyond just employment.

Just as employees should have certain rights and protections - and they do - employers and business owners also have and should have certain rights, including freedom of association. And other employees have the right not to be subjected to hostile work environments. I don't know about you, but I would find a place filled with people who belong to the Ku Klux Klan and during their off-hours, hold Klan rallies calling for the subjugation of the filthy mongrel races and burn crosses (perfectly legal activity if done on their own property), even if they don't say any of this to my face at work, to be the very essence of a hostile work environment. I would have every right to expect my employer to refuse to hire or to fire such employees.

Moreover, you seem to think that there has been some sudden rash of people being thrown out of work because of their off-hours political leanings. You are throwing up a solution in search of a problem.

As I said, this discussion is purely academic because your proposal doesn't stand a chance of every being codified into law.

[AZSkiffyGeek]

21. An anti-vax, MAGA team coworker cried discrimination

When the company offered an incentive for getting vaccinated. It didn’t fly.

[Dr. Strange]

24. Treat it the same as religion.

[Hugh_Lebowski]

31. My inclination is to agree ...

Either have protection for both, or protection for neither.

Fundamentally they're not that different, and both are voluntary.

And frankly in today's climate, I'd guess that people are denied employment or fired over the 'wrong' politics just as often as they are for the 'wrong' religion.

I would probably say if this were to happen, there needs to be certain exceptions carved out where you can't claim that, for example, when you got caught on a viral video calling black people the N-word, you can't claim that's 'protected political speech'.

Details like that is where this entire concept gets pretty tricky, frankly.

I'm not against the general idea, but I'd seriously consider whether there's a practical means by which to implement this protection, and concede it's possible I come to the conclusion that there's really not.

[StarfishSaver]

34. But it's not the same as religion.

Religion is a constitutionally protected status. Political affiliation is not.

[Hugh_Lebowski]

39. Pretty sure the Constitution says nothing about what employers can or can't do

There's nothing that says that 'only constitutionally-protected statuses are valid' in this context.

Women have protections in this regard even though the ERA has never passed, for example.

There's also protections for Unionists ... even though they are none in the Constitution (iirc).

And the 2A doesn't guarantee you a right to show up at your work with a gun, does it?

IOW, you're making what amounts to an arbitrary distinction, IMHO.

[StarfishSaver]

41. No, I'm not making an arbitrary distinction. I'm trying to explain an aspect of Constitutional Law t

you. This is very complicated and is not susceptible to the simplistic approach being discussed here. Suffice to say this proposal would never make it anywhere close to being adopted.

[Hugh_Lebowski]

43. Speech and Religion are 'protected' by the same damn Amendment ...

It absolutely COULD be done, just as employment protection was added for religion in 1964.

Which was like 175 freaking years after the Constitution was signed, prior to that you COULD fire someone for being an Irish Catholic.

I'm done arguing with you about this

[StarfishSaver]

48. So please clarify for me - are you talking about SPEECH or PROTECTED CLASSES?

This thread is about whether political affiliation should be a protected class, protected by the 14th Amendment. But you keep talking about political speech/expression, which is something totally different and has nothing to do with protected classes or the 14th Amendment.

Are you arguing that political affiliation should be a new class of persons protected by the 14th Amendment? Or are you saying that the First Amendment limitations of government interference with free speech should be extended to private persona entities?

Political speech is already protected under the First Amendment. But that protection only applies to state action - except in limited circumstances, private entities are not bound by the First Amendment, which does not prohibit private employers from regulating their employees' speech or from hiring and firing employees based thereon.

What exactly are you arguing for here?

[Hugh_Lebowski]

50. I'm not talking about the 14th Amendment ...

Protection from being fired (or refused employment) on the basis of your chosen religion is covered by Title VII of the Civil Rights Act of 1964.

There certainly COULD BE similar protections enacted for political affiliation, there's no 'requirement' that such protections are enumerated in the Constitution. Like I said, discrimination on sex and race are similarly prohibited, despite the Constitution having no real analogous protection.

And 'speech' and 'political affiliation' are integrally linked, ergo, it COULD be the case that 'political speech' could be similarly protected, particularly if it occurred outside the workplace.

I haven't worked out every detail, I'm only saying that if Religion could be protected, so could political affiliation, in theory. They're not inherently that different.

[StarfishSaver]

54. If you're talking about protected classes and the 1964 CRA, you are talking about the 14th Amdt

The 14th Amendment authorizes Congress to enact appropriate legislation to enforce its provisions. The 1964 Civil Rights Act is one such piece of legislation and the only reason it is valid is because it is directly authorized by and enforces the 14th Amendment. You can't talk about protected classes and the Civil Rights Act without talking about the 14th Amendment. They are inextricably linked

Again, I ask you. How do you define "political affiliation"?

Of course some political affiliations are obvious, for example membership in an established political party, e.g., Republican, Democratic. But, would political affiliation be limited to such membership? Would membership in Black Lives Matter or The Federalist Society be considered political affiliation? Could NOT belonging to an established political party be considered political affiliation?

And once you define that, how do you define "speech based on political affiliation"? Would a Republican who gets fired for leading a "Defund the Police" chant at a Black Lives Matter rally fall into the protected class? After all, it's pretty hard to argue that this speech is based on their affiliation with the Republican Party. So, how exactly would that work?

[Hugh_Lebowski]

56. I'm saying it's LEGALLY POSSIBLE, not that it's necessarily the right thing to do

And yes, there absolutely would be all manner of complications as you outline.

If you go back and read the ORIGINAL POST of mine you've been sitting here arguing with me about, you'll find this:

I would probably say if this were to happen, there needs to be certain exceptions carved out where you can't claim that, for example, when you got caught on a viral video calling black people the N-word, you can't claim that's 'protected political speech'.

Details like that is where this entire concept gets pretty tricky, frankly.

I'm not against the general idea, but I'd seriously consider whether there's a practical means by which to implement this protection, and concede it's possible I come to the conclusion that there's really not.

While it COULD be done, it is arguably (even highly likely) to be extremely impractical to 'enforce'.

Okay?

So do we fundamentally agree here?

Can we stop now?

[StarfishSaver]

57. No, we don't agree

I don't think it could be legally done because a prerequisite to creating a protected class is a demonstrated record of discrimination against that particular class. There is no definable long-term track record of people being discriminated against because they have a particular political affiliation. Political affiliation is far too broad and vague to pass constitutional muster and a law creating such a class, even if it could be passed, would be thrown out before the ink is dry on the president's signature.

So, no, we don't agree. But we can agree to stop going back and forth about it.

Have a good evening.

[Demsrule86]

73. Religious freedom is protected in the constitution...it is different.

[Hugh_Lebowski]

89. And yet, it was not protected in terms of employment until 1964

And Age and Sex and Race are not (specifically) protected in the Constitution at all (other than voting rights), and yet they are protected in employment law.

The arguably 'political affiliation' of being a Union Organizer or Member is also protected by the NLRA in terms of employment ... but is also not a freedom protected by the Constitution.

Freedom of Speech is protected by the Constitution, in the same amendment as Religion ... and yet you can still be fired for what you say. You can also be fired for what you write.

Totality of the situation to me is ... the 1A protection for Religion is not really relevant to subject of employment protections.

[Demsrule86]

90. Some would argue it still isn't protected. I do not wish to add political

views as a protected class in terms of employment. Hell about we really protect women, minorities and older workers...we do a crappy job at that.

[Hugh_Lebowski]

91. I'm not necessarily 'arguing for it', but I think it's not an unreasonable conversation to have

And you're right, we already do a shit job with the others. There IS that.

But I'm also of the mind that the more prohibitions there are on 'arbitrary reasons employers can legally fire people', the better, overall, for workers.

[StarfishSaver]

37. Religion. Is protected by the First Amendment

It's a completely separate category.

[Dr. Strange]

59. Political affiliation would be protected by freedom of association.

In terms of civil rights protection, we haven't carved out a place for political affiliation. Things like race, sex, and sexual orientation make sense in terms of protection, since those are innate characteristics. But religion and political affiliation are philosophical choices. As such, they should either both be protected or neither. I see good arguments for both, but ultimately they deserve the same treatment.

[StarfishSaver]

60. Political association is already protected to some degree by the First Amendment

But the First Amendment only applies to state action, i.e., restrictions imposed by the government. It doesn't apply to private entities, unless state action is somehow involved, which would not be the case here.

What you're arguing for is an amendment to the Constitution since the First Amendment does not treat political affiliation and religion as equal. In order to extend Constitutional protections to political affiliation, the Constitution would have to be amended.

But I'll post to you the same question I've asked others and haven't gotten it answered. How do you define "political affiliation"? That is not a rhetorical question. It is absolutely critical to this discussion.

[Dr. Strange]

62. Correct.

What you're arguing for is an amendment to the Constitution since the First Amendment does not treat political affiliation and religion as equal. In order to extend Constitutional protections to political affiliation, the Constitution would have to be amended.

Correct. I would either repeat the Civil Rights Act with political affiliation added in or remove religion. I'm fine with either approach, I just think we're fairly inconsistent with our ideas of civil rights.

How do you define "political affiliation"?

The same way we do religion, but with politics. If someone wears a yarmulke to work and the boss fires them, that would almost certainly be a violation under the current view of Civil Rights. If someone wears a "Democratic Party" pin to work, they should get the same protection. Any act or speech pertaining to religious affiliation should get the same protection as the same act or speech that pertains to political affiliation.

[StarfishSaver]

64. Saying "the same as we define religion" isn't an answer -

unless you state how religion is defined for Constitutional and legislative purposes, which you haven't done.

Religion is not defined in the law as requiring an affiliation with any church or organization, something very different than political affiliation.

How do you define "political affiliation"? As I wrote in another post, of course, some political affiliations are obvious, for example, membership in an established political party, e.g., Republican, Democratic. But, would political affiliation be limited to membership in a political party? Would membership in Black Lives Matter or The Federalist Society be considered political affiliation even though they are not political organizations? Could NOT belonging to an established political party by choice be treated as an equivalent of a political affiliation?

And once you define political affiliation, how do you define "speech based on political affiliation"? Would a Republican who gets fired for leading a "Defund the Police" chant at a Black Lives Matter rally fall into the protected class? After all, it's pretty hard to argue that this speech is based on their affiliation with the Republican Party. Would only speech and activity directly related to or in advancement of an official political organization count?

Should the African-American owner of a business catering to African-American and Jewish customers be legally prohibited from firing an employee who, on his personal time, wrote an editorial calling Jews filthy bloodsuckers who should be rounded up and deported, but claimed that he was merely expressing the views of the New Black Panther Party of which he was a member?

[Dr. Strange]

66. I agree that political affiliation is vague, but so is religious affiliation.

That's admittedly an argument for removing religion from the set of protected classes.

Overall, though, my argument is consistency. Treat religion and political affiliation the same. So...

Would a Republican who gets fired for leading a "Defund the Police" chant at a Black Lives Matter rally fall into the protected class?

If someone were to lead this chant, not as a Republican, but as a Catholic, could they be fired? If they claimed religious discrimination because their speech was guided by their religious, rather than their political, beliefs, what would the courts say? (I ask this partially to make you do the work, but also because I don't know the answer. I'm not sure if courts would extend religious protection to speech made outside of work. But if they would, then I would say apply the same if the person claims it's for political reasons.)

Should the African-American owner of a business catering to African-American and Jewish customers be legally prohibited from firing an employee who, on his personal time, wrote an editorial calling Jews filthy bloodsuckers who should be rounded up and deported, but claimed that he was merely expressing the views of the New Black Panther Party of which he was a member?

Treat it the same as if the employee was a member of the Black Hebrew Israelites. If an employee belongs to the BHI and writes an editorial calling Jews filthy bloodsuckers (based on the employee's religion), would they be protected from being fired? My suspicion is they wouldn't--that freedom from religious discrimination wouldn't protect an employee in a situation like this. But again, I don't know for sure.
I just don't see any difference between the two situations; both should be treated the same in my opinion.

[StarfishSaver]

70. "Religious affiliation" is not a protected class.

The Constitution's protections or religion extends well beyond affiliation.

You keep talking about "political beliefs"and "political affiliation" as if the terms are interchangeable. They are not.

The Constitution's protection of religion comes straight from the First Amendment. The First Amendment does NOT protect political affiliation and would have to be amended in order to do so.

Title VII treats certain identifiable GROUPS of people with a proven history of being discriminated against as protected classes. Adding political affiliation can't be done. There is not a record of rampant and systemic discrimination against people for their political beliefs (the fact that some people have been fired for their political affiliation is not sufficient - it has to have occurred on a much greater and provable scale).

And saying "just treat it as if they were a member of a religious group" makes no sense at all. That could be said about anything anyone says or does outside of work. In essence, what you're arguing is that no one employer or any other entity would ever have the legal right to base any decision related to any other person on behavior not immediately and directly related to or arising out of the transaction, be it employment (hiring, firing, discipline, regulation, etc.). Because what you keep skipping over is that protected classes' protections aren't limited to protection from being fired for behavior away from the workplace. It would protect everyone from all pretty much any consequence for any words and deeds they claim arise from their political beliefs and that would include not just firing but hiring and other employment-related decisions, school admissions, commerce, property issues, etc. If you have an AirBNB or apartment rental, you'd be forced to rent to pretty much anyone who wanted to stay there, regardless how offensive they are to you and your neighbors, as long as they claim their behavior is based on their political beliefs. No store could deny entrance to a person refusing to wear a mask or prove they've been vaccinated as long as they claim their refusal is based on their politics. An employer could be forced to hire someone who bragged about being at the Capitol during the insurrection.

Sorry, but while I appreciate your effort to think outside of the box, your arguments make no practical or legal sense. Such a proposal is not only blatantly unconstitutional, it could never be managed in practice.

But, frankly, I'm tired of trying to explain it - this is very complicated legal and Constitutional stuff and it's not easy for a layperson to understand. It's clear that you are very firm in your assumptions of how this should work and there's probably little more that I can say to change your mind, so I'll just let it go for now.

[Captain Stern]

26. I'd vote a big 'NO' on that.

Doing that would cheapen the whole point of actually having protected classes of people.

Heck, 'cheapen' probably isn't the right word. Doing that would actually be closer to mocking the whole concept of protected classes.

[Ace Rothstein]

28. So basically nobody could ever be fired?

Pass

[Hugh_Lebowski]

29. Where do you get that? Of course you could ...

Just not for political views expressed outside workplace/hours.

[StarfishSaver]

38. Then you're not talking about a protected class at all

You're talking about being punished for a particular type of speech. That's entirely different.

[Hugh_Lebowski]

40. No I'm saying you could still be fired for poor attendance, poor performance, punching your boss

or showing up to work with a firearm even though gunz are constitutionally-protected ... those kinds of things.

[StarfishSaver]

42. No, you're arguing that someone shouldn't be punished for expressing their political views

That is very different than being part of a protected class based on their political affiliation.

Expression of political views is an act. Being part of a protected class based on political affiliation is a status. To very different things.

People should have no more protection from consequences for expressing their political views than they should for expressing their opinion about any other matter.

What you're really saying is that no one should be fired for expressing an opinion. That's different than creating a protected class based on political affiliation, which, as I've noted elsewhere in this thread, would not limit 14th Amendment protections simply to not being fired but would open up a huge panoply of protections that would make no sense.

[Hugh_Lebowski]

47. I'm NOT ARGUING that

I'm arguing against the idea that 'nobody could ever be fired' if there was some protection for political affiliation. That was the subthread I responded to.

I was not meaning to lay out every detail exactly of 'how it might work' in one f***ing sentence.

[StarfishSaver]

51. So, you are saying that political affiliation should be a protected class?

If so, the First Amendment has nothing to do with any of this.

How do you define political affiliation?

[Hugh_Lebowski]

53. For the purpose of this subthread, which I'd prefer we stop talking on

I'm arguing that if 'political affiliation' were a protected class, you could still be fired for all manner of other reasons, contrary to the supposition posed in the original subthread I responded to here.

Please do read what I responded to originally.

[StarfishSaver]

35. Exactly

[treestar]

87. unwarranted conclusion

people who are otherwise competent at their jobs being fired only because of political views.

[WhiskeyGrinder]

32. No. There are protections against being fired for capricious reasons, but you have to bargain for

them and get them codified in a contract.

[A_Woman_from_MI]

52. Political affiliation and "political speech" are not the same thing

Most states constitutionally grant a secret ballot. (Caveat: With all the proposed voter suppression laws, and those that have passed, I don't know how accurate that is today.) I tend to find this sufficient protection. I would prefer to see this protection mandated federally than to make affiliation a protected class. Most US voters are already protected, unless they choose to espouse their views.

Do I think someone should be fired for a bumper sticker, or for a political discussion around the water cooler, or because they vote differently than the boss? Of course not. Someone who spouts racism, calls for insurrection, or threatens people with violence on or off the clock? An argument can surely be made that white supremacists could pose an actionable threat to people they work with.

Claiming a right to "political speech" when either willfully posting your rants on social media, or being captured on video and subsequently being called out on social media is certainly something you can do. But maybe you shouldn't. Based on what I see on Twitter, it is most frequently racists, bullies, and RWNJs who get their employment comeuppance for ranting. It's the only social media I "follow" so my impression may well be skewed.

Republicans, ultimately, are responsible for the weakening of unions and employment protections in general. Is it coming back to bite them in the ass?

[StarfishSaver]

55. Very well said!!

Excellent analysis!

[A_Woman_from_MI]

58. Thank you!

Thank you

[The Magistrate]

63. Hear Hear, Ma'am

[Demsrule86]

72. No...

[StarfishSaver]

79. Sigh

Maybe you can explain it better than I have. I'm not getting anywhere ...