Can businesses refuse to serve—or employ—Trump supporters?

KOB-TV (Albuquerque) reports on a New Mexico business that refuses to deal with Trump supporters; the owner of the business, an Internet marketing company, posted an item saying:

… 1st In SEO will no longer do business with any person that is a registered Republican or supports Donald Trump. 1st In SEO will also not do business with business interests that support either the Republican Party or Donald Trump. 1st In SEO obviously has no actual means of determining our clients' or prospective clients' political standing. We will rely on the integrity of the men and women who are our clients currently to find another Search Engine Optimization provider if they are Republicans, voted for Donald Trump or support Donald Trump. If you are a Republican, voted for Donald Trump or support Donald Trump, in any manner, you are not welcome at 1st In SEO and we ask you to leave our firm.

1st In SEO will do everything in our power to ensure that we break ties with any person or business that supports Fascism. We will communicate our political stance clearly to all prospective new clients. We will also aggressively advertise the fact that 1st In SEO will not do business with Republicans or anyone who supports our country's president elect.

We ask you, our current clients, to please respond to this letter and confirm where you stand politically. If you are a Republican or support Trump, we will no longer serve you. You will need to find a new SEO provider. 1st In SEO will, of course, provide your website with the same high quality service you have enjoyed until you are able to find a new provider….

Is a private business's refusing to serve people based on their political affiliation legal? How about firing employees for their politics (something that might be implied by "you are not welcome at 1st In SEO and we ask you to leave our firm" and "break ties with any person")? It turns out that this depends on the jurisdiction, and on whether the business is discriminating against clients or employees. The First Amendment doesn't apply to such private businesses (incidentally, whether or not they take government funds, see Rendell-Baker v. Kohn (1982)), and federal law generally doesn't ban political affiliation discrimination, so it ends up being a matter of state and local law. In New Mexico, for instance, discriminating against clients on this basis is legal—but firing employees, or threatening to fire them, based on their politics is a felony.

1. Most states ban most businesses from discriminating against clients based on the clients' race, religion, sex or national origin. Federal law does the same, though for a narrower set of businesses (and doesn't cover sex discrimination); it also adds a ban on disability discrimination. Many states and some cities also ban discrimination based on sexual orientation, marital status and various other attributes.

But political affiliation is rarely on the list. A few cities or counties do ban such discrimination. D.C. bans discrimination based on "the state of belonging to or endorsing any political party." Seattle bans such discrimination based on "any idea or belief, or coordinated body of ideas or beliefs, relating to the purpose, conduct, organization, function or basis of government and related institutions and activities, whether or not characteristic of any political party or group," "includ[ing] membership in a political party or group and includ[ing] conduct, reasonably related to political ideology, which does not interfere with job performance." There are a few other places on this list. But New Mexico doesn't ban such discrimination in public accommodations, and neither do the city of Albuquerque or Bernalillo County.

One can debate whether such discrimination should be outlawed, by analogy to various other forms of discrimination. Perhaps if wedding photographers can't discriminate against same-sex weddings (which New Mexico courts have indeed said), Internet marketing companies shouldn't be able to discriminate against people who have particular views. Or perhaps such antidiscrimination laws shouldn't be expanded further, or should even be cut back, to leave people free to choose whether to refuse to do business with others, whether or not we'd approve of that choice. But, as a matter of current law, such discrimination against Trump supporters (or Hillary Clinton supporters or Communists or libertarians or whoever else) is legal.

2. Many states and some cities and counties, however, do ban discrimination against employees—or at least firing of current employees—based on their political activity (with different jurisdictions defining such activity differently). I discuss this in detail in my article "Private Employees' Speech and Political Activity: Statutory Protection Against Employer Retaliation," but here's the New Mexico statute, enacted in 1912, when New Mexico became a state:

Coercion of employees [a fourth degree felony] consists of … any person having under his control or in his employment persons entitled to vote at any election, directly or indirectly discharging or threatening to discharge such employee because of the employee's political opinions or belief or because of such employee's intention to vote or refrain from voting for any candidate, party, proposition, question or constitutional amendment.

Threatening an employee with dismissal because he supports Trump is thus a felony in New Mexico (and also likely a tort, so the dismissed employee can sue even if the prosecutor chooses not to prosecute).

How does this affect the SEO CEO's statement? The statement is ambiguous. It mostly talks about not dealing with Trump-supporting customers or Republican customers. But it also includes language that seems to threaten retaliation against employees, too—as I noted, it says: "If you are a Republican, voted for Donald Trump or support Donald Trump, in any manner, you are not welcome at 1st In SEO and we ask you to leave our firm" and "1st In SEO will do everything in our power to ensure that we break ties with any person or business that supports Fascism" (apparently referring, in this case, to Trump or Republicans). [UPDATE: The CEO, in his interview on Tucker Carlson Tonight, likewise said, "So, anyone that supports Trump by omission or by commission are not welcome to do business in my company," though he also says, "I work with Trump supporters," in a context that suggests that he's fine with that.] And, as the Supreme Court has recognized with regard to labor law, courts should interpret an employer's statements "tak[ing] into account the economic dependence of the employees on their employers, and the necessary tendency of the former, because of that relationship, to pick up intended implications of the latter that might be more readily dismissed by a more disinterested ear."

One way of thinking about this might be to imagine someone making this statement, in a context where religious discrimination against clients isn't banned, but religious discrimination against employees is banned. (Federal law, for instance, generally bans religious discrimination by private employers that have more than 15 employees, but only bans religious discrimination against patrons in a limited set of businesses, such as hotels and restaurants.) Say that the employer had emailed his employees as follows:

[We] will no longer do business with any person [who is Muslim]. [We] will also not do business with business interests that support [Islam]. [We] obviously [have] no actual means of determining our clients' or prospective clients' [religious affiliation]. We will rely on the integrity of the men and women who are our clients currently to find another Search Engine Optimization provider if they are [Muslims]. If you are a [Muslim], you are not welcome at [our business] and we ask you to leave our firm.

[We] will do everything in our power to ensure that we break ties with any person or business that supports [Islam]. We will communicate our political stance clearly to all prospective new clients. We will also aggressively advertise the fact that [we] will not do business with [Muslims].

We ask you, our current clients, to please respond to this letter and confirm where you stand [religiously]. If you are a [Muslim], we will no longer serve you….

Set aside whether you think that refusing to do business with Muslims is morally equivalent to refusing to do business with Republicans or with Trump supporters, and focus on the question for which I'm offering this analogy: Would a company employee interpret this as threatening to fire Muslim employees (because of the "If you are a [Muslim], you are not welcome at [our business] and we ask you to leave our firm" and "[We] will do everything in our power to ensure that we break ties with any person or business that supports [Islam]") as well as announcing a refusal to do business with Muslim customers? If you think that the employee would indeed treat this as applying to employees as well, then by the same logic the CEO's actual statement would convey a similar message to Republican or pro-Trump employees, and would thus be criminal (and tortious) under New Mexico law.

In any event, if the CEO meant that pro-Trump employees are welcome at the business, that they aren't being asked to leave the firm and that the firm won't break ties with them because of their political affiliation, then the CEO would be wise to make that explicit.

Finally, I should note again what I noted as to item 1: One can certainly debate whether the law should indeed ban such discrimination against employees based on their political speech or opinions, and in fact most states don't have such bans. (As best I can tell, all states do ban discrimination based on how an employee has voted, though; certainly at least nearly all do.) Perhaps employer refusal to deal with Communist sympathizers, or Trump supporters, or Clinton supporters, or whoever else should be permissible, as to employees as well as others. And perhaps that should apply to refusal to deal with Muslims, or evangelical Christians, or Jews, or Mormons, or refusal to deal based on other attributes as well; people have varying views on all that.

One can also debate whether such discrimination should be criminal; most forms of private discrimination aren't. The rationale for criminalizing discrimination based on political speech or opinions seems to be that using this sort of coercive economic power to distort the political process is comparable to using bribes to distort the political process; query whether that rationale is sound. But here, as with item 1, I'm just reporting on what the law is—and, as you can tell, it can get pretty complicated.