Recent reports of campaigns designed to discourage potential employers from hiring Trump Administration officials raise the question of whether a private sector employer would have any jeopardy for going along with such a boycott. The answer depends upon where the act takes place. Fifteen states,[1] plus Puerto Rico and the District of Columbia, prohibit discrimination or retaliation against employees or applicants on the basis of political affiliation or activity. Some states have more limited, but potentially applicable laws. (For a thorough analysis of these laws see Volokh). Other states may recognize doctrines, such as violation of public policy or engaging in lawful activities, that could be fashioned into a reasonable argument for employee protection.

Political parties are not mentioned in the Constitution of the United States. What is mentioned is “…the right of the people to peacefully assemble, and to petition the Government for a redress of grievances.” (Amendment I) In addition to freedom of speech, this provides some protection from governmental interference with the right of persons to join and support political parties. Indeed, the current suits against alleged gerrymandering to favor one party over another, use this type of argument to create a constitutional violation out of interfering with an institution unmentioned in the document.

The so-called right of free association has been recognized as covered by the First Amendment protections, thereby giving additional heft to arguments that political party participation should enjoy some special protection, at least from government interference. Thus, local governments cannot officially prefer members of one party over another, or retaliate against employees for their participation in political campaigns, subject to certain limitations. Private employers, except in the locations where there are statutes, have not had to worry about this category of discrimination. It would not be surprising, however, to see a disappointed applicant or discharged employee make an argument that the presence of these rights in the First Amendment (and in many state constitutions) establishes a clear public policy to protect political activity, including service to the nation by joining whatever administration is currently in power. On the other hand, employers also enjoy the right to associate with whom they choose, and could argue that forcing a rock-ribbed conservative to hire a socialist activist would violate the rights of the employer. Or forcing a liberal think tank to hire a Trump administration true believer would be inconsistent with the free association model.

Given that many former administration officials seek post-government work in the District of Columbia, in New York City, at Yale, or at think tanks in coastal states, they are likely to find themselves with at least theoretical protection against political discrimination. Employers who accede to the suggestions to boycott administration officials may find themselves subject to discrimination claims, with uncertain results.

[1] Arizona, California, Colorado, Connecticut, Louisiana, Minnesota, Missouri, Nebraska, Nevada, New Mexico, New York, South Carolina, Utah, West Virginia, Washington.

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Photo of Keith A. Ashmus Keith A. Ashmus

Designated Best Lawyers’ “2016 Lawyer of the Year” in Labor Law-Management in Cleveland and named to the Top 100 Ohio Super Lawyers, Keith is nationally recognized as a respected advocate and a trustworthy neutral. His practice focuses on employment law and business…

Designated Best Lawyers’ “2016 Lawyer of the Year” in Labor Law-Management in Cleveland and named to the Top 100 Ohio Super Lawyers, Keith is nationally recognized as a respected advocate and a trustworthy neutral. His practice focuses on employment law and business law, as well as mediation and arbitration cases around the nation. Keith is a Past President of the Ohio State Bar Association and a Past Chairman of both the Labor Law Section and the ADR Committee of the Cleveland Metropolitan Bar Association.

Keith is a recognized advocate for small business, having served as Chair of both the Council of Smaller Enterprises and the National Small Business Association. He has testified before the U.S. Senate and House of Representatives Committees, as well as the Ohio General Assembly, in support of small business positions.

Photo of Jonathan Scandling Jonathan Scandling

Jon focuses his practice on the representation of management in all aspects of labor and employment law. He provides counseling and training to clients for best practices on a wide range of human resource issues such as terminations, compliance with employment laws, workplace…

Jon focuses his practice on the representation of management in all aspects of labor and employment law. He provides counseling and training to clients for best practices on a wide range of human resource issues such as terminations, compliance with employment laws, workplace investigations, and the preparation of policies and employment agreements. Jon also assists with the implementation of arbitration agreements and policies for employers.

Jon has extensive experience in public sector labor & employment law, with much of his practice revolving around traditional labor matters. Prior to Frantz Ward, Jon worked for Cuyahoga County as an Assistant Law Director in the Labor & Employment Group. While at the County, Jon’s practice involved traditional labor matters where he represented management in a complex labor/management relationship comprised of over 37 separate bargaining units, employment litigation and general employment counseling. He appeared in both state and federal court, and represented management in State Employment Relations Board hearings, contract negotiations, grievance arbitration and various other forums. Jon also has extensive experience dealing directly with various public sector unions, ranging from deputy and correction officers to office workers and clerical employees. He also was a law clerk for the State Employment Relations Board in Columbus.