Expand the Civil Rights Act to protect employees from being fired for their political beliefs.
Republican politicians often ask what they can do in office to combat “wokeness.” The best approach is to amend state and federal civil-rights laws to protect employees from discrimination on the basis of political beliefs. Corporate viewpoint discrimination is unfair and widespread, a driver of polarization, and a direct consequence of the way existing civil-rights laws have been interpreted—a legal mistake that demands a legal solution.
On signing the Civil Rights Act of 1964, President Lyndon B. Johnson declared that it would “end divisions” and told Americans to “lay aside irrelevant differences and make our nation whole.” But while the act prohibits discrimination on the basis of race, sex, and religion, it doesn’t protect political beliefs, and today corporations across America fire employees who express the wrong political opinions.
Disney fired actress Gina Carano after she compared the treatment of conservatives on social media to Nazi persecution of Jews. The company called her post “abhorrent and unacceptable,” although co-star Pedro Pascal wasn’t sacked for likening Trump supporters to Nazis. Longtime Sacramento Kings broadcaster Grant Napear lost his job for tweeting “ALL LIVES MATTER.” A Virginia high school teacher was fired for refusing to use a student’s “preferred pronouns.” A software company dismissed an employee for posting a TikTok video complaining about Bronx bodegas. A USA Today editor was demoted for tautologically tweeting: “People who are pregnant are also women.”
This is un-American, and it’s also counter to the spirit of the Civil Rights Act. You can’t be fired for expressing your religious beliefs or gender identity. Why can you be fired for your political beliefs?
The answer lies in Supreme Court cases, beginning with Meritor Savings Bank v. Vinson (1986), which interpreted the Civil Rights Act broadly to protect workers in protected categories from “harassment.” The justices defined that term to include “verbal . . . conduct” that create “an intimidating, hostile or offensive working environment.”
Since then, hostile-workplace litigation has exploded, and today political viewpoints or symbols perceived by minorities or women as hurtful or demeaning can create unlawful “hostile work environments” subjecting the employer to liability:
- The Equal Employment Opportunity Commission ruledthat a postal worker stated a valid hostile-workplace claim against the U.S. Postal Service for allowing a co-worker to wear a cap with the “don’t tread on me” flag; the aggrieved employee “stated that he found the cap to be racially offensive to African Americans because the flag was designed by Christopher Gadsden, a slave trader & owner of slaves.”
- A federal judge ruledthat a New York policeman stated a valid hostile-workplace claim based in part on a “one-time placement of a campaign sticker” for Donald Trumpon another officer’s locker.
- A federal judge in Idaho foundthat a company’s letter disapproving of athletes’ “kneeling during the national anthem” as disrespectful to the military could “indicate a culture of racial discrimination” that would support a black worker’s hostile-workplace claim.
- A federal judge in Georgia alloweda claim to proceed in which, among other things, the plaintiff’s co-workers made “frequent comments that ‘President Obama was stupid.’ ” The court explained that “President Obama is African American” and that the plaintiff “understood” these comments to be “harassment based on race.”
If companies face liability when employees express such views, suppressing them is a prudent policy. Corporate explanations for speech prohibitions often say so explicitly: When Goodyear faced backlash for telling employees that “Blue Lives Matter” and “Make America Great Again” shirts were prohibited but “Black Lives Matter” shirts were acceptable, the company claimed it needed to keep its “work environment” free of “any forms of harassment or discrimination.” When Southwest Airlines fired a flight attendant who made antiabortion posts on Facebook, it asserted that she might have violated its anti-sexual-harassment policy.
The laws prohibiting race and sex discrimination have turned into engines not only of suppression but of compulsion. A professor at the University of North Texas was fired, he alleged in a lawsuit, “for refusing to affirm a view—the concept of microaggressions—with which he disagreed,” in a judge’s paraphrase. A Texas hospital fired a nurse for objecting to a mandatory course that required her to admit she is racist because she is white.
Free-marketeers argue that businesses should be free to set workplace conditions and to hire and fire as they please. But for many companies, a prohibition on viewpoint discrimination would come as a liberation, not a restraint. Numerous CEOs of major corporations have told us in private that they don’t want to be part of “cancel culture”—or participate in culture wars at all. They don’t want to force an ideology into their workplace; they feel compelled to act because of pressure from activists and employees, backed by the threat of hostile-workplace litigation.
Lawmakers can adopt a framework that builds on the legal test for civil servants, who are already protected by the First Amendment from discrimination on the basis of political opinion. Employers couldn’t penalize an employee for off-duty political expression but could set rules for on-the-clock political speech in a viewpoint-neutral manner. A company could say “no political hats” but couldn’t favor BLM over MAGA. These rules have not led to unworkable challenges or neo-Nazi explosions in government workplaces.
It’s true that discrimination is more invidious when it’s based on immutable characteristics than on freely chosen beliefs. Yet the law protects employees from discrimination based on religion and gender identity, both of which can be matters of choice.
Companies at their best unite their employees in a common cause that transcends politics—to create, innovate, serve customers and generate wealth together. Protecting political expression as a civil right would respect LBJ’s admonition “to lay aside irrelevant differences and make our nation whole.”
Mr. Ramaswamy is executive chairman of Strive Asset Management and author of “Woke, Inc.: Inside Corporate America’s Social Justice Scam” and “Nation of Victims: Identity Politics, the Death of Merit, and the Path Back to Excellence.” Mr. Rubenfeld is a professor at Yale Law School and a First Amendment lawyer.
Appeared in the November 16, 2022, print edition as ‘The New Discrimination Demands a New Law’.