Minnesota Law on Private Employer Retaliation Based on Employee Political Activity

Dale blogged yesterday about an interesting campaign contribution disclosure case. An employee of a Catholic organization in Minnesota (called John Doe for purposes of the litigation) donated $600 to a group opposing a proposed Minnesota constitutional amendment that would have provided that under Minnesota law marriage may be only between a man and a woman. Usually, the identity and employer of people who make donations of more than $100 must be made public, but the Minnesota Campaign Finance and Public Disclosure Board granted him an exemption under a statutory provision that provides:

The board must exempt a member of or contributor to an association or any other individual, from the requirements of this section if the member, contributor, or other individual demonstrates by clear and convincing evidence that disclosure would expose the member or contributor to economic reprisals, loss of employment, or threat of physical coercion.

The First Amendment has been read as similarly mandating exemptions from disclosure rules, if a sufficient threat of retaliation is shown, though the details are not clear. The Board reasoned that “the Catholic Church’s actions with respect to Ms. Cameron” — a Catholic schoolteacher who was allegedly fired some months before because “she expressed to her supervisors in the private context of an annual self-evaluation that she did not agree with all of the Church’s teachings on a personal level, but that she did not bring her own opinions into the classroom” — “provide clear and convincing evidence that public disclosure of his opposition to the marriage amendment would expose him to the loss of his employment.”

I don’t have much to add to Dale’s post in general, but I did want to note something that I learned while writing my Private Employees’ Speech and Political Activity: Statutory Protection Against Employer Retaliation article: Minnesota law makes it a misdemeanor for employers to fire people based on their “political contributions or political activity,” unless the employee’s “political affiliation or viewpoint” is a “bona fide occupational qualification of the employment”:

An individual or association must not engage in economic reprisals or threaten loss of employment or physical coercion against an individual or association because of that individual’s or association’s political contributions or political activity. This subdivision does not apply to compensation for employment or loss of employment if the political affiliation or viewpoint of the employee is a bona fide occupational qualification of the employment. An individual or association that violates this section is guilty of a gross misdemeanor.

It seems likely, for reasons mentioned in Part II.A.1 of the article, that this would also make a firing based on political contributions or political activity civilly actionable (though that would depend on how broadly Minnesota courts interpret the “wrongful dismissal in violation of public policy” tort), again unless the employee’s political affiliation or viewpoint is a bona fide occupational qualification. Whether this BFOQ exception is applicable here would depend on Doe’s exact job, and also on whether courts interpret this provision to cover situations where an employee’s political activity causes tension with coworkers or somehow undermines the employee’s credibility as a spokesperson for the employer (see generally Part II.A.7 of the article).

Note that this statute would of course be trumped by the First Amendment rights of a church employer to choose whom to employ as ministers or as teachers of religion. See Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC. I don’t know whether Ms. Cameron would have been covered by this exception, nor do I know whether John Doe would be, without knowing more about his job description. I suppose one could also argue that the statute doesn’t bar firing someone based on his political beliefs, even if the beliefs are evidenced by his political contribution or political activity, so long as the employer fires everyone who is known to have those beliefs regardless of whether the employee acts on those beliefs; but I doubt that this is a sensible reading of the statute, since it would render it nearly useless.

The Campaign Finance Board did not discuss the statute. This might be because it wasn’t focused on the existence of the statute (which seems to be very rarely invoked), because it thought Doe wasn’t covered by the statute (perhaps because of the BFOQ exemption), or because it concluded that formal legal protection against retaliation does not sufficiently eliminate the threat of “loss of employment” (the statutory test).