Federal law doesn’t prevent an employer from firing people for their odious — or not-so-odious — political views. That’s not true under the law of some states, though. In those states, employers are forbidden to discriminate against people because of their political views, at least if they express those views outside the workplace.
Law professors don’t seem to realize that. Some of them are encouraging employers not to hire their radical students who support the terrorist group Hamas, which seeks to exterminate Jews in Israel and Palestine, and also seeks to create a radical Islamic government over the entire world that will repress religious minorities and exterminate some of them.
On October 15, the Wall Street Journal ran an op-ed by a law professor at UC Berkeley that urged employers not to hire his radical, Jew-hating students:
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?
But as law professor Eugene Volokh — a Jew who detests Hamas — observes, half this professor’s students will end up working in California, where it is illegal to refuse to hire people because of their political activities. So following this law professor’s advice could be risky for an employer.
In California, Professor Volokh points out, “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.”
Here is the relevant provision from the California Labor Code (enacted way back in 1937):
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 California Supreme Court ruled 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.” It did that to rule that political activity included the advocacy of gay rights. Moreover, in footnote 16 of its ruling, the California Supreme Court interpreted the law as protecting “applicants for employment as well as on the job employees.”
As Professor Volokh observes,
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.
It is possible that if a student explicitly expressed support for genocide against Jews on multiple occasions, that that could create a hostile work environment for Jewish employees forced to work for them. Federal law forbids creating a hostile environment based on race, religion, or sex. So it is possible that simply employing a radical Jew-hating student could violate federal law in some situations. If so, federal law would presumably override state law under the Constitution’s supremacy clause. So-called “hostile environment” harassment law is sometimes used to suppress speech that is not even anti-semitic or racist, but rather, merely offensive to particular groups or individuals, such as Bible verses on paychecks or sexual humor. Such applications of “hostile environment” harassment law violate the First Amendment, as Professor Volokh notes at this website and this law review article and this law review article. Even some genuinely bigoted speech may be protected by the First Amendment, despite its role in fostering a hostile environment, as a few federal appeals court judges have recognized in court rulings like this one and this one and this one.
