Political Affiliation Discrimination

If you are experiencing workplace discrimination based on political affiliation, there are laws to protect your rights. These laws differ depending on location and whether you are employed in the public or private sector.

Private Sector Employees

Unfortunately, no federal laws exist that provide protections to private sector employees from workplace discrimination based on political affiliation.  Many cities, states, and counties, however, do offer protections to employees on this basis.  For example, the District of Columbia Human Rights Act prohibits all employers in the District from refusing to hire, terminating, or otherwise discriminating against any individual with respect to his or her “compensation, terms, conditions, or privileges of employment” on the basis of the individual’s political affiliation.  D.C. Code § 2-1402.11.  Similar prohibitions exist in some neighboring Maryland counties, including Prince George’s and Howard Counties.  See Prince George’s County Code § 2-186(3); Howard County Code § 12.200(II).  An attorney may be able to help you determine whether such rights exist in your jurisdiction.

Federal Government Employees

For federal government employees, the Civil Service Reform Act of 1978 (CSRA) provides some protection against discrimination on the basis of political affiliation.  That statute requires that “All employees and applicants for employment should receive fair and equitable treatment in all aspects of personnel management without regard to political affiliation . . . and with proper regard for their privacy and constitutional rights.”  5 U.S.C. § 2301(b)(2).  Employees are further protected “against arbitrary action, personal favoritism, or coercion for partisan political purposes[.]”  5 U.S.C. § 2301(b)(8)(A). 

In a 2005 decision, the U.S. Court of Appeals for the First Circuit provided an excellent summary of the mechanics of filing a complaint under the CSRA:

The CSRA provides different remedial schemes depending on the severity of the personnel action at issue. For the most drastic actions, such as discharge, an employee is entitled to appeal the agency's decision directly to the [U.S. Merit Systems Protection Board (MSPB)]. 5 U.S.C. § 7513(d). If the employee does not prevail before the MSPB, she may seek judicial review in the United States Court of Appeals for the Federal Circuit. Id. § 7703.

An employee may not challenge a transfer by means of a direct appeal to the MSPB. Instead, she must file an administrative complaint with the [U.S. Office of Special Counsel (OSC)]. See 5 U.S.C. §§ 1212(a)(2), 1214(a)(1)(A), 2302(a)(2)(A)(iv). The OSC must “investigate . . . to the extent necessary to determine whether there are reasonable grounds to believe that a prohibited personnel action has occurred, exists, or is to be taken.” Id. § 1214(a)(1)(A). If the OSC determines that such grounds exist, it may request that the agency rescind the action and, if the agency declines, petition the MSPB to take appropriate remedial steps. See id. §§ 1214(b)(2)(B),(C). The OSC is generally required to act on an administrative complaint within 240 days. See id. § 1214(b)(2)(A). If the OSC terminates the investigation because it does not find reasonable grounds to conclude that a prohibited personnel action has or will occur, the OSC must tell the complaining employee the reason for its action. See id. § 1214(a)(2)(A).

[With the exception of a whistleblower claim, the] CSRA does not provide for review by the MSPB or an Article III court of an OSC decision to terminate an investigation into an employee's complaint.

Irizarry v. United States, 427 F.3d 76, 78 (1st Cir. 2005).

As you can infer from the complex procedure outlined by the First Circuit above, it can prove challenging for a federal government employee to take all the necessary steps to protect her rights.  An experienced attorney can help federal employees ensure they preserve their rights to be protected against unlawful political affiliation discrimination.  If you are experiencing – or have already experienced – discrimination based on your political affiliation that you are thinking about reporting, or if you have already reported discrimination and are facing retaliation, contact the experienced lawyers at Katz, Marshall & Banks, LLP for an evaluation of your case with no further obligation.