What Does New Jersey Retaliation Law Say About Firing Someone for Political Beliefs or Activities?

Federal and state anti-discrimination laws protect workers against discriminatory employment practices based on numerous factors. The New Jersey Law Against Discrimination (NJLAD) identifies more protected categories than the equivalent federal statute, Title VII of the Civil Rights Act of 1964. Several recent news stories have involved employers who terminated workers because of political views that they expressed. In one case, an employee of a tech company lost his job after posting a memorandum criticizing the company’s gender diversity efforts on a company message board. In August 2017, several companies fired employees for participating in a rally in Virginia that prominently displayed symbols associated with explicitly racist organizations. People have also had their employment threatened or terminated for views and activities on the opposite side of the political spectrum. This raises questions about how, or whether, anti-discrimination laws protect workers against adverse actions by their employers because of their political views.

The terms “political views” and “political speech” have no distinct definitions for legal purposes. They broadly refer to individuals’ opinions on matters of public concern, as well as statements they make and activities in which they participate that involve those matters. “Speech” can include more than just spoken statements in this context, such as written statements and participation in advocacy.

The First Amendment to the U.S. Constitution prohibits the government from punishing people based on the content of their speech, or saying things the government does not like. Private employers are not bound by this restriction. Public employees might be able to assert free-speech claims, but private employees cannot. The National Labor Relations Act (NLRA) prohibits private employers from taking adverse action against employees for speech or advocacy related to labor organizing. Whistleblower protection laws, like the Conscientious Employee Protection Act (CEPA), protect employees who speak out about legal violations by their employers.

Neither Title VII nor the NJLAD expressly identifies political views as a protected category, but they might still provide relief. An adverse employment action based on political views might also implicate a protected category under state or federal law. An employer who fires employees who participate in a protest march, for example, may be liable for unlawful discrimination if the decision had a disparate impact on employees of a particular race, sex, or religion. The flip side of this scenario involves an employer that does not terminate or otherwise discipline an employee who openly espouses racist, sexist, or other bigoted views. If that employee later acts on those views in a way that harms other employees, the employer could be legally liable.

New Jersey caselaw may provide another option. While the NJLAD does not mention political views, the New Jersey Supreme Court has held that a private employer cannot fire an employee “when the discharge is contrary to a clear mandate of public policy” found in “legislation; administrative rules, regulations or decisions; and judicial decisions.” Pierce v. Ortho Pharm. Corp., 84 N.J. 58, 72 (1980). The court later clarified that the public policy at issue must be “clearly identified and firmly grounded,” rather than “vague, controversial, unsettled, and otherwise problematic.” MacDougall v. Weichert, 144 N.J. 380, 391-92 (1996). How this might apply to a claim involving political views depends heavily on the individual circumstances of the case.

If you need legal assistance in a dispute with an employer in New Jersey or New York, contact the knowledgeable and experienced retaliation attorneys at the Resnick Law Group today online, at 973-781-1204, or at (646) 867-7997.

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U.S. Supreme Court Rules for Demoted Employee in First Amendment Claim, The New Jersey Employment Law Firm Blog, July 11, 2016

New Jersey Police Officer’s Lawsuit Challenges Loss of Pay, Claims Violations of Rights, The New Jersey Employment Law Firm Blog, April 29, 2016

Are New Jersey Employers Allowed to Ask for Access to a Job Applicant’s Facebook Account? The New Jersey Employment Law Firm Blog, March 14, 2012

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