Federal Law (Sometimes) Restricting Private Employers from Firing Employees Based on Employees’ Advocacy for Federal Candidate

I’m writing a short article on state laws that restrict private employers (as well as government employers) from discriminating against employees based on the employees’ speech or political activity. There are more such laws than many think, and while I’m ambivalent about the laws, I thought they were worth flagging for people to consider.

In the process, I came across a federal law — an aspect of the Civil Rights Act of 1871, 42 U.S.C. § 1985 — that might do the same as to retaliation for employee speech that supports a federal candidate, at least in some circuits and in situations where at least two people are involved in the firing decision. But I’m not an expert on § 1985 law, which is quite complicated, so I thought I’d post a very rough draft of this section of my article, and see what readers who do know this area have to say. Please note that the article is descriptive and analytical, not normative: I’m not looking for arguments about what the law should be, but rather about what the reasonable interpretation of the law is, given the text and the existing Supreme Court precedents.

(Note that I discuss in another part of the article the possibility that such laws may be unconstitutional in some situations, for instance if they purport to limit a newspaper’s ability to fire a columnist for the columnist’s speech. Note also that publicly urging people to fire someone for his speech, even when the firing would be illegal, is likely constitutionally protected under Brandenburg v. Ohio and NAACP v. Claiborne Hardware, though actually doing the firing, in concert with one or more other people, would be actionable.)

* * *

The Civil Rights Act of 1871 may prohibit some kinds of employer retaliation based on an employee’s speech supporting or advocating for a federal candidate. Section 2 of the Act, now codified at 42 U.S.C. § 1985, provides in relevant part, that it is civilly actionable for “two or more persons” to “conspire” (and to act pursuant to the conspiracy)

to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner, toward or in favor of the election of any lawfully qualified person as an elector for President or Vice President, or as a Member of Congress of the United States; or to injure any citizen in person or property on account of such support or advocacy ….

In interpreting a closely analogous portion of the same statute, the Court has held that “injur[ing] any citizen in person or property” includes getting the person fired from his job,[1] and that an agreement among two or more managers of a company to get the employee fired from the company may constitute an actionable “conspir[acy].” It thus follows that it is civilly actionable (and likely criminal[2]) for two or more managers to have an employee fired for supporting or advocating for the election of a federal candidate.

In several circuits, this conclusion may usually be blocked by the “intra-corporate conspiracy” doctrine, under which a conspiracy is not actionable if the conspirators consist of employees of the same corporation (plus perhaps the corporation itself) who are conspiring to have the corporation perform an action, such as firing someone.[3] But in the Third and the Tenth Circuits,[4] and possibly also in the D.C., First, and Ninth Circuits,[5] this doctrine doesn’t apply to § 1985 claims, so when two or more managers conspire to get an employee fired based on his support or advocacy of a federal candidate, § 1985 offers a remedy.

Now a bit more detail. Section 1985 prohibits five different forms of conspiracies:

  1. “to prevent, by force, intimidation, or threat, any person from accepting or holding [or exercising] any office … under the United States,” or “to injure him in his person or property on account of his lawful discharge of the duties of his office”;
  2. “to deter, by force, intimidation, or threat, any party or witness in any court of the United States from attending such court, or from testifying to any matter pending therein, … or to injure such party or witness in his person or property on account of his having so attended or testified”;
  3. “[to] imped[e], hinder[], obstruct[], or defeat[] … the due course of justice in any State …, with intent to deny to any citizen the equal protection of the laws, or to injure him or his property for lawfully enforcing, or attempting to enforce, the right of any person, or class of persons, to the equal protection of the laws”;
  4. “[to] depriv[e], either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws”; or
  5. “to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner, toward or in favor of the election of any lawfully qualified person as an elector for President or Vice President, or as a Member of Congress of the United States; or to injure any citizen in person or property on account of such support or advocacy.”

All these provisions apply to private actors and not just to government officials.[6] But, as the Court recognized in Kush v. Rutledge, these five kinds of conspiracy belong to two families. Provisions (c) and (d) “contain[] language requiring that the conspirators’ actions be motivated by an intent to deprive their victims of the equal protection of the laws,” and at the same time deal with activity that “is not institutionally linked to federal interests and … is usually of primary state concern.” Because of this, the Court did not want the provisions to be read as “creat[ing] an open-ended federal tort law applicable ‘to all tortious, conspiratorial interferences with the rights of others,’” and therefore required a showing of “some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators’ action.”[7]

On the other hand, provisions (a), (b), and (e) do not mention “equal protection,” and do not require either state action or a class-based animus. These provisions “relate to institutions and processes of the Federal Government — federal officers, [(a)]; federal judicial proceedings, [(b)]; and federal elections, [(e)]. The statutory provisions dealing with these categories of conspiratorial activity contain no language requiring that the conspirators act with intent to deprive their victims of the equal protection of the laws.”

In Kush, the Court therefore expressly held that § 1985 therefore provides a cause of action for “an alleged conspiracy to intimidate potential witnesses in a federal lawsuit,” a provision (b) claim, without any state action or class-based animus. And the Court’s reasoning applies as much to provision (e) claims, which involve retaliation for supporting a federal candidate, as it does to provision (b) claims, which involve retaliation for being a witness in a federal case.

Likewise, the Court’s holding in Haddle v. Garrison, which held that two managers’ conspiring to get an employee fired because he was a witness in a federal case was actionable under 42 U.S.C. § 1985, would apply equally to provision (e) and provision (b) claims. “[L]oss of at-will employment,” the Court held, may be treated as “injur[ing]” a person “in his person or property,” even though at-will employment isn’t technically a “constitutionally protected property interest” for many purposes.[8]

The only court to seriously consider the argument in this subsection, the Eighth Circuit, has (twice) rejected the argument. The provision (e) retaliation-for-support-or-advocacy claim, the court reasoned, is limited to situations involving “State Action,” because only state action can violate a person’s First Amendment right.[9]

But this is a misreading of § 1985: The provision (e) “support or advocacy” claim is not limited to violations of the First Amendment. It does not require, for instance, depriving someone of “equal privileges and immunities under the laws” (a provision (c) claim). It does not require governmental interference with “support or advocacy.”[10] It is justified by the federal Elections Clause power, aimed at protecting federal elections, and not by any Fourteenth Amendment Enforcement Clause power.[11] Nor does it extend as far as the First Amendment does: It is limited to support or advocacy of the election of federal candidates, not speech on other matters.

Rather, the provision (e) claim, like the provision (b) claim involved in Haddle, is a free-standing federal statutory protection against conspiracies — whether private or governmental — aimed at retaliating against a person for a certain kind of conduct. In provision (b), that conduct is being a witness in a federal case. In provision (e), that conduct is giving “support or advocacy in a legal manner” “in favor of the election” of a federal candidate. Under Haddle, such conspiracies to retaliate include conspiracies to get someone fired (though if the conspiracies are purely within one corporation, they may not be actionable in those circuits that adhere to the intracorporate conspiracy doctrine).

[1] Haddle v. Garrison, 525 U.S. 121, 126 (1998). The conclusion in Gill v. Farm Bureau Life Ins. Co., 906 F.2d 1265, 1269 (8th Cir. 1990), that § 1985 applies only to serious violence and not just cancellation of an insurance agent’s contract by his insurance company, is thus no longer good law after Haddle. (Note that Haddle’s logic applies not just to employment contracts but to other valuable contracts as well.)

[2] 18 U.S.C. § 241; see Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 275 (1993) (noting that 18 U.S.C. § 241 is “the criminal counterpart of § 1985(3)”); Ex parte Yarbrough, 110 U.S. 651 (1884) (discussing a prosecution under the criminal counterpart of what is now § 1985(3)); United States v. Goldman, 25 F. Cas. 1350 (C.C. D. La. 1878) (two-judge court) (same); United States v. Butler, 25 F. Cas. 213 (C.C. D. S.C. 1877) (Waite, Chief Justice, riding circuit and writing for a two-judge court) (same).

[3] Hartline v. Gallo, 546 F.3d 95, 99 n.3 (2d Cir. 2008); Buschi v. Kirven, 775 F.2d 1240, 1252–53 (4th Cir. 1985); Benningfield v. City of Houston, 157 F.3d 369, 378 (5th Cir. 1998); Amadasu v. Christ Hosp., 514 F.3d 504, 507 (6th Cir. 2008); Hartman v. Bd. of Trustees of Cmty. Coll. Dist. No. 508, 4 F.3d 465, 469–71 (7th Cir. 1993); Richmond v. Bd. of Regents of Univ. of Minnesota, 957 F.2d 595, 598 (8th Cir. 1992); Grider v. City of Auburn, 618 F.3d 1240, 1261–62 (11th Cir. 2010).

[4] Novotny v. Great Am. Fed. Sav. & Loan Ass’n, 584 F.2d 1235, 1256-59 & n.121 (3d Cir. 1978) (en banc), vacated on other grounds, 442 U.S. 366 (1979); Brever v. Rockwell Int’l Corp., 40 F.3d 1119, 1127 (10th Cir. 1994).

[5] Bowie v. Maddox, 642 F.3d 1122, 1131 (D.C. Cir. 2011) (declining to decide the question); Mustafa v. Clark County School Dist., 157 F.3d 1169, 1181 (9th Cir. 1998) (same). I know of no case on the subject in the First Circuit.

[6] Griffin v. Breckenridge, 403 U.S. 88, 101 (1971).

[7] Kush, 460 U.S. at 725–26 (quoting Griffin, 403 U.S. at 101, 102).

[8] 525 U.S. 121, 122–23, 125–26 (1998).

[9] Gill v. Farm Bureau Life Ins. Co., 906 F.2d 1265, 1269 (8th Cir. 1990); Federer v. Gephardt, 363 F.3d 754, 757 (8th Cir. 2004).

[10] See, e.g., Ex parte Yarbrough, 110 U.S. 651, 655, 665–66 (1884) (stressing that what is now the “support or advocacy” clause of § 1985 is not limited “to acts done under State authority”); United States v. Goldman, 25 F. Cas. 1350 (C.C. D. La. 1878) (two-judge court) (applying the statute to private action); United States v. Butler, 25 F. Cas. 213 (C.C. D. S.C. 1877) (Waite, Chief Justice, riding circuit and writing for a two-judge court) (same).

[11] Ex parte Yarbrough, 110 U.S. 651, 655, 660–62, 665–66 (1884); United States v. Goldman, 25 F. Cas. 1350, 1354 (C.C. D. La. 1878) (two-judge court).