Is Political Discrimination in the Workplace Legal?

By Douglas Lipsky

With the next national election cycle on the horizon, employees may be discussing politics in the workplace. Although the First Amendment to the U.S. Constitution guarantees each individual the right to freedom of expression and speech, employers have a right to limit their employees’ political activities in the workplace. 

In short, federal and New York laws do not generally prohibit political discrimination in private sector businesses; however, some forms of political discrimination may be illegal. The best way for employers and employees to understand what political conduct can and can’t be restricted is to consult with a knowledgeable employment discrimination lawyer.

Politics at Work: Know Your Rights

The first thing to know is that public employers – federal, state, and local governments, school districts, government agencies – may not discriminate against employees based on their political beliefs. So, public employees have more legal protection than workers in the private sector.

At the same time, New York State Election Law protects both public and private sector employees from interference with their right to free speech by prohibiting employers from making “threats, expressed or implied, intended or calculated to influence the political opinions or actions of employees.”

New York’s “Legal Activities Law” 

In 1992, New York State adopted Section 20-d of the New York Labor Law (NYLL), the Legal Activities Law, which prohibits discrimination on the basis of an employee’s “political activities outside of working hours, off of the employer’s premises and without the use of the employer’s equipment or other property.” The statute narrowly defines political activities to include:

  • Running for public office
  • Campaigning for a candidate for public office
  • Participating in political fundraising activities

In short, the law only protects conduct that takes place outside of work. Moreover, Section 20-d of the NYLL does not protect an employee’s political beliefs, expressions of political views, actions that the employer deems illegal, or political activity that creates a material conflict of interest related to the employer’s trade secrets, proprietary information, or other legitimate business interest.

National Labor Relations Act

The National Labor Relations Act (the “NLRA”) provides a framework governing political speech and activity in the workplace. The law requires that certain non-supervisory employees be allowed to participate in political activities related to labor or working conditions and to exercise their Section 7 rights. This includes the right to:

  • Self-organization
  • Form, join, or assist labor organizations
  • Bargain collectively through representatives of their own choosing
  • Engage in other concerted activities for the purpose of collective bargaining or other mutual protection

Notably, a workforce need not be unionized for employees to have Section 7 rights.

Anti-Discrimination Laws

Employers have an obligation to prevent discrimination in the workplace under federal, state, and local laws, including:

  • Title VII of the Civil Rights Act of 1964 (Title VII)
  • New York State Human Rights Law (NYSHRL)
  • New York City Human Rights Law (NYCHRL)

These laws protect employees from discrimination based on several protected characteristics, including religion or creed. Those protections do not specifically include political beliefs or activities; and the courts have limited the definition of the term “creed” to religious beliefs, not political views. Also, the Equal Employment Opportunity Commission (EEOC) has stated that the definition of religion under Title VII includes non-theistic moral or ethical beliefs; however, social, political, or economic philosophies are not ‘religious’ beliefs protected by Title VII.

The Takeaway

Employees in New York have very limited protections against political discrimination in the workplace. Employers have the right to limit an employee’s political activity that is unrelated to labor or working conditions. While employers cannot discriminate against employees for participating in certain political activities outside of work or exercising a legal right (e.g. complaining about discrimination or harassment), discrimination on the basis of mere political belief or expression is not prohibited. Contact our office today to learn more.

About the Author
Douglas Lipsky is a co-founding partner of Lipsky Lowe LLP. He has extensive experience in all areas of employment law, including discrimination, sexual harassment, hostile work environment, retaliation, wrongful discharge, breach of contract, unpaid overtime, and unpaid tips. He also represents clients in complex wage and hour claims, including collective actions under the federal Fair Labor Standards Act and class actions under the laws of many different states. If you have questions about this article, contact Douglas today.