Political Viewpoint Discrimination: a comparison of NY, NJ and CT Law
Can employers discriminate against employees based on their political beliefs or conduct?
In these polarized times, many employers want to know what they can and cannot do if workplace politics become too divisive. State law governs this issue and varies considerably from state to state. In this post, we look at the significant differences between the laws of New York, New Jersey and Connecticut.
There is no federal law prohibiting employment discrimination based on political outlook so employers generally can make employment decisions based on political preferences unless their state law prohibits it.
New York Law
New York law provides employees limited protection against political viewpoint discrimination. Section 201(d) of the New York Labor Laws prohibits employers from discriminating against employees based on their off-duty “political activities” or “recreational activities.”
“Political activities” are defined rather narrowly as (1) running for public office; (2) campaigning for a candidate for public office, or (3) participating in fund-raising activities for a political candidate, party or advocacy group.
“Recreational activities” are defined as activities “generally engaged in for recreational purposes, including but not limited to sports, games, hobbies, exercise, reading and viewing of television, movies and similar material.”
However, there is little New York caselaw interpreting the scope of protected “political activities” and “recreational activities.” It is not clear, for example, whether participating in the recent controversial “stop the steal” protest in Washington, D.C., could be considered a form of “campaigning for a candidate for public office.” Arguably attending such a protest might be considered a form of “recreational activity”, but several court decisions have interpreted “recreational activity” narrowly. See McCavitt v. Swiss Re. America Corp.
Consequently, New York employers likely have broad latitude to discriminate against employees based upon political viewpoint unless employees can (1) show they participated in one of the specific types of conduct identified as protected “political activities” or (2) recast their political activity as a protected “recreational activity” analogous to a hobby and perhaps based upon extensive political reading or viewing of television, both of which are protected leisure activities.
New Jersey Law
New Jersey law provides employees with no protection against political viewpoint discrimination. Like federal law, New Jersey’s Law Against Discrimination only prohibits discrimination based upon race, gender, sexual orientation and other “protected categories.” Consequently, New Jersey employers have broad latitude to take adverse employment action against employees for political conduct that employers deem to be offensive or divisive.
New Jersey, however, has a unique law that protects employees from workplace partisanship in a different manner. In 2006, New Jersey passed a law prohibiting employers from demanding that employees either (1) attend any meeting at which the employer communicates its opinion about any political or religious matter; or (2) communicate with the employer regarding any political or religious matters. The law provides a private right of action to any employee who suffers an adverse employment action as a result of refusing to participate in any employer mandated meeting or communication regarding politics or religion.
Connecticut provides employees much greater protection from political viewpoint discrimination than does New York or New Jersey law. Connecticut law prohibits employers from taking any adverse employment action based upon employees’ exercise of any right guaranteed by the First Amendment of the United States Constitution or similar provisions of the Connecticut Constitution. See Conn. Gen. Stat. 31-51q.
Connecticut law has a limited exception for First Amendment conduct that “substantially or materially interferes with the employee’s bona fide job performance or the working relationship between the employee and the employer” but otherwise entirely prohibits most type of political viewpoint discrimination. Connecticut law further allows employees to recover attorneys fees and punitive damages from employers who violate their First Amendment rights. Obviously, employers in Connecticut must scrupulously avoid any adverse employment action based upon employees’ political viewpoint.
Political viewpoint discrimination is a hot employment topic these days as employers attempt to quell political polarization dividing workplaces. As set forth above, this interesting area of the law is governed by state law which varies significantly from state to state.