Firing (or Threatening to Fire) Employee Based on His Vote

I’ve recently heard some uncertainty about whether employers may fire employees based on how they voted, or threaten to fire them based on how they voted. The answer — based on my own research — is that all states have laws that ban this sort of conduct as to state elections, and the federal government has a law that bans this sort of conduct as to federal elections.

Most of the laws specifically ban employer retaliation or employer threats. Others, including the federal law, use more general language, for instance by prohibiting “intimidat[ing], threaten[ing], coerc[ing], or attempt[ing] to intimidate, threaten, or coerce any other person for the purpose of interfering with the right of such other person … to vote as he may choose.” But those courts that have considered the question have read this language as applying to economic retaliation and not just violence. See United States v. Bd. of Educ. of Greene County, 332 F.2d 40, 44, 46 (5th Cir. 1964) (concluding that the refusal to renew a year-to-year employment contract based on a person’s exercise of her right to vote could be “intimidation”); United States v. Bruce, 353 F.2d 474, 476–77 (5th Cir. 1965) (likewise, as to property owners’ decision to bar a person from their property, when this decision seriously interfered with the person’s ability to work as an insurance premium collector); United States v. Beaty, 288 F.2d 653, 656 (6th Cir. 1961) (likewise, as to landlords’ retaliation against their sharecropper tenants); see also Smith v. Stechel, 510 F.2d 1162, 1164 (9th Cir. 1975) (so reading a similarly worded statute that applied to housing rather than to voting); Reg’l Econ. Cmty. Action Program, Inc. v. City of Middletown, 294 F.3d 35 (2d Cir. 2002) (likewise as to another similarly worded statute).

Some of the statutes impose civil liability, others provide for criminal punishment, and others specifically provide for both. But given recent caselaw on the “wrongful discharge in violation of public policy” tort, it seems likely that most state courts would impose civil liability for violation of the criminal statutes as well.

These laws also date back a long time; indeed, the earliest laws that we might view as bans on discrimination in employment involved bans on discrimination based on voting (long before there were laws that banned discrimination based on union membership, race, religion, and the like).

As early as the 1700s, several colonies and states barred any “attempt to overawe, affright, or force, any person qualified to vote, against his inclination or conscience,” and some also barred, “after the … election is over, menac[ing], despitefully us[ing] or abus[ing] any person because he hath not voted as he or they would have had him.” These voter protection laws seem to have covered threats not just of physical violence but also of legal coercion, for instance a jailer’s threat to revoke a bail-like release based on the inmate’s vote (there was an 1815 South Carolina conviction on that very point). And they may have covered threats of economic retaliation as well — a similarly general 1854 English statute was applied to threats of economic retaliation and not just those of physical attack. The bans on threats, from 1721 to the 1860s, were included alongside bans on bribery; given that offering to provide a financial benefit in exchange for a vote was forbidden, it makes sense that threatening to deny a financial benefit in exchange for a vote would have been forbidden as well.

And some voter protection laws enacted in the mid-1800s explicitly covered “threats of withdrawing custom or dealing in business or trade … or any other threat of injury”; such laws were enacted in Mississippi (1839), Iowa (1850), the Nebraska Territory (1855), Illinois (1871), and Delaware (1881). Pennsylvania (1839), Ohio (1839), Connecticut (1846), and Massachusetts (1852) enacted similar statutes specifically focused on employer retaliation rather than on economic retaliation more broadly.

By the late 1860s, some states also barred discrimination based on past votes rather than just threats aimed at future votes. This was especially visible in a burst of such lawmaking in the Reconstruction-era South, triggered by the Republican concern that southern employers were pressuring their employees to vote against the Republicans. (In some instances, Union generals administering the military occupation of the South issued such rules as military orders, violations of which were triable before military commissions.)

Indeed, these laws were much more important before the late 1800s, when the secret ballot was widely adopted; today, one sees almost no prosecutions or lawsuits under these statutes, likely because employers don’t know how their employees vote. Still, if the question is whether American law bars employers from firing or threatening to fire their employees based on how the employees voted, the answer is almost uniformly “yes.”

I hope to blog more today on two other related questions — (1) what employers may say about the possibility that if a candidate is elected, the employer’s business may end up closing or cutting back [UPDATE: now posted here], and (2) whether employers can require their employees to participate in political campaigns, for instance by showing up at a candidate’s rally. As to another related question, (3) whether employers can discriminate against employees based on speech and political activity beyond just voting, such as campaigning for a candidate or signing an initiative or referendum petition, see my recent Private Employees’ Speech and Political Activity: Statutory Protection Against Employer Retaliation article.