Political Discrimination Skip over navigation
LexisNexis® Browse Law Reviews and Treatises
Skip over navigation
Sign in with your lexis.com® ID to access the full text of this chapter.
Order from the LexisNexis Store. Formats may include:
  • eBook for Mobipocket readers, including Amazon® Kindle

  • eBook for eReader, including Adobe® Digital Edition, Apple® iPad®, Sony® Reader

  • Print (Hardcover)


Larson on Employment Discrimination
Copyright 2017, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

10-171 Larson on Employment Discrimination 171.syn


Political Discrimination


Lex K. Larson, Esq.

Chapter Summary


Public employees may not, under the federal Constitution, be dismissed for political reasons, unless the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the office involved. Likewise, political affiliation, when it is not required for the effective performance of a position, cannot justify employment decisions involving transfer, recall, promotion, or hiring. This chapter, from Larson on Employment Discrimination (Matthew Bender), discusses federal and state constitutional protection of public employees. In addition, the chapter discusses federal and state statutory provisions regarding political affiliations such as communism; other federal and state statutes; the Hatch Act; and protection against political discrimination in private employment.

The Elrod-Branti rule refers to standards established by two Supreme Court decisions involving employment actions based upon political affiliation and belief. Taken together, Elrod and Branti effectively forbid government employers from discharging, or threatening to discharge, nonpolicymaking, nonconfidential public employees solely for their political beliefs or affiliation, unless such affiliation is an appropriate requirement of the job. Explaining how the courts have applied this standard, the chapter discusses the two-part test developed in the circuit courts for determining whether political affiliation is an appropriate requirement, and the extension of the rule to employment decisions involving the promotion, transfer, recall, and hiring of public employees by Rutan v. Republican Party of Illinois. The chapter further explains the distinction between Elrod-Branti and Pickering v. Board of Education.

Numerous suits have been filed by public employees alleging infringement on their First Amendment right to freedom of political beliefs since Elrod-Branti. The chapter surveys case law applying the standards to determine, for specific positions, whether the position was nonpolicymaking, or whether party affiliation was an appropriate requirement. Such positions have included attorneys, circuit court clerks, judges, and sanitation foreman among many others. The Elrod-Branti rule extends to federal employees in excepted positions; the issue is whether the employees had a role in policymaking. In some cases, the defendant may be able to avoid liability through the defense of qualified immunity.

Both federal and state general civil service laws, as well as a number of other specific laws, protect public employees from discrimination on the basis of political affiliation, unless the employee is in an excepted position. The constitutions in a few states contain language specifically addressing patronage hiring or dismissal, and other states include broad principles including freedom of association principles analogous to the federal constitution. Federal legislation provides employment limitations for and security regulations requiring the loyalty of federal employees; the statute doesn't mention the term "communist party" but sets forth definitions which can be applied to any group whose interest are inimical to those of the United States. The chapter also discusses the constitutionality of state communism-related bans. In addition, the Hatch Act, covering executive branch employees of the federal government, places certain political activities off limits, such as becoming a candidate for public office in any partisan election, or soliciting or receiving political contributions. The Supreme Court has repeatedly upheld this Act as constitutional.

Except for statutory provisions in a few states, there is very little law bearing on political discrimination by private employers. Some potential for legal protection may exist in the form of a public policy exception to employment at will.

Larson on Employment Discrimination (Matthew Bender) provides complete analysis of all major federal anti-discrimination statutes, which bar employment discrimination based on race, color, sex, national origin, religion, age, and disability. Larson's also includes extensive appendices containing the current version of all major federal anti-discrimination statutes (including Title VII, the Equal Pay Act, the Age Discrimination in Employment Act, and the Americans with Disabilities Act). In addition, the treatise contains practice forms covering all phases of discrimination litigation, including EEOC proceedings, settlement, summary disposition, and jury instructions.


Employment discrimination,political discrimination,dismissal for political reasons,political affiliation,Communism,Hatch Act,Elrod-Branti rule,First Amendment,freedom of political beliefs


For related discussion of employment at will, see Chapter 174, Employment at Will and the Trend Toward Judicial Exceptions.


For a definitive and complete guide to labor and employment law written by authorities in the field of labor and employment, such as Lex Larson, Peter Lareau, and Jonathan Mook, see Labor and Employment Law (Matthew Bender).

For a comprehensive, up-to-date treatise analyzing every aspect of civil rights and including tried-and-true practice forms, for matters relating to the Americans with Disabilities Act, employment discrimination, age discrimination, privacy issues, property rights, fair housing, prisoners' rights, and voting rights,see Civil Rights Actions (Matthew Bender).

For comprehensive coverage of the most explosive issues in labor law today, including an "Employee Relations Guide" detailing preventative practices, and a practice appendix with forms and checklists, see Unjust Dismissal (Matthew Bender).
If you are interested in obtaining a lexis.com® ID and Password, please contact us at 1-(800)-227-4908 or visit us at http://www.lexisnexis.com/.
Search Documents
eg., Environmental Insurance Coverage Under the Comprehensive General Liability Policy

Lexis® Web - The only search engine that delivers free web content specifically from legal sites validated by LexisNexis® attorney editors and includes tools for faster research and more relevant results.

LexisNexis Store
Research Now - Go to lexis.com
Connect the Dots - Free 1 hour webcast
Share. Network. Discover. - Go to LexisNexis Communities