Employers, Employees, Professors, Students: Remember—Some States Restrict Discrimination Based on Employees' Political Activity

Sunday, the Wall Street Journal ran an op-ed by a law professor at UC Berkeley that argued:

My students are largely engaged and well-prepared, and I regularly recommend them to legal employers. But if you don't want to hire people who advocate hate and practice discrimination, don't hire some of my students. Anti-Semitic conduct is nothing new on university campuses, including here at Berkeley.

Last year, Berkeley's Law Students for Justice in Palestine asked other student groups to adopt a bylaw that banned supporters of Israel from speaking at events. It excluded any speaker who "expressed and continued to hold views or host/sponsor/promote events in support of Zionism, the apartheid state of Israel, and the occupation of Palestine." …

The bylaw … was rightly criticized for creating "Jew-free" zones…. For millennia, Jews have prayed, "next year in Jerusalem," capturing how central the idea of a homeland is to Jewish identity. By excluding Jews from their homeland—after Jews have already endured thousands of years of persecution—these organizations are engaging in anti-Semitism and dehumanizing Jews….

If a student endorses hate, dehumanization or anti-Semitism, don't hire him…. If you are a legal employer, when you interview students from Berkeley, Harvard, NYU or any other law school this year, ask them what organizations they belong to. Ask if they support discriminatory bylaws or other acts and resolutions blaming Jews and Israelis for the Hamas massacre. If a student endorses hatred, it isn't only your right but your duty not to hire him. Do you want your clients represented by someone who condones these monstrous crimes?

Here's one thing that the article didn't mention, though: In California, the state where likely about half of Berkeley Law graduates work (see below), it may well be a crime (as well as being civilly actionable) to refuse to hire people based on their political views about Israel. Many other states, counties, and cities have similar rules (see this article for a list). Here are the relevant statutory provisions, from the California Labor Code (dating back to 1915):

1101. No employer shall make, adopt, or enforce any rule, regulation, or policy:
(a) Forbidding or preventing employees from engaging or participating in politics or from becoming candidates for public office.
(b) Controlling or directing, or tending to control or direct the political activities or affiliations of employees.

1102. No employer shall coerce or influence or attempt to coerce or influence his employees through or by means of threat of discharge or loss of employment to adopt or follow or refrain from adopting or following any particular course or line of political action or political activity.

1103. An employer or any other person or entity that violates this chapter is guilty of a misdemeanor punishable … by imprisonment in the county jail not to exceed one year or a fine not to exceed … $1,000 … or both ….

1105. Nothing in this chapter shall prevent the injured employee from recovering damages from his employer for injury suffered through a violation of this chapter….

In Gay Law Students Ass'n v. Pacific Tel. & Tel. Co. (Cal. 1979), the court made clear that "political activit[y]" wasn't limited to election-related activity, but included any "espousal of a candidate or a cause, and some degree of action to promote the acceptance thereof by other persons." (In that case, the court held that political activity included the advocacy of gay rights.) And in footnote 16, the court read the statute as protecting "applicants for employment as well as on the job employees."

Speech "blaming Jews and Israelis for the Hamas massacre" or advocating "excluding Jews from their homeland" is certainly espousal of a cause. (Of course, pro-Israel speech and speech opposing an independent homeland for Palestinians would equally be espousal of a cause protected by the statute.) Likewise, belonging to organizations that espouse this cause would be protected political activity as well, as would supporting those organizations' policies of excluding pro-Israel speakers.

Now you can disagree with such laws. Or you might prefer narrower versions that are limited to activity related to American election campaigns. Or you might want the laws to exclude viewpoints that you think are sufficiently evil (though I doubt that the First Amendment would allow such statutes to discriminate based on the employee's viewpoint). For more on these policy arguments, see this article. And of course many states don't have such laws; in those states, such discrimination based on political activity is legal.

But whatever your views, the laws are there, including in the very jurisdiction where half of the author's students are likely to work. Any employer that is seriously contemplating such policies ought to think about such laws. People, especially legal scholars, who urge such policies to employers ought to at least warn the employers that they might get into legal trouble.

Yet unfortunately many employers, employees, law professors, lawyers, and others seem to be unaware that the laws even exist. My goal with this post, and in my past work on the subject, is to alert people that they have to consider this reality, whether they like it or not.

I e-mailed the author yesterday afternoon to ask whether I was missing something in this analysis, but haven't yet heard back from him; I hope to post a reaction from him, if he does get back to me.

(Note: I say about half of Berkeley Law graduates work in California based on this page, which notes that in the last three years about 2/3 of the graduates got jobs in the Pacific states, including California. Since California amounts to likely about 3/4 of the population of those states, I think half the graduates working in California is a reasonable estimate.)