Political Party Discrimination in California

Is Political Party Discrimination Allowed in California?

For example, could a business decline to provide services to someone because they were Republican?

Could a bakery refuse to make a cake for someone because they are a Democrat?

For California employers the answer is no when it comes to their employees.

For California businesses selling products and services the answer could be yes!

The starting point for our analysis is the default rule that under the law discrimination is allowed. There are legally created exceptions, called protected categories or classes. But what this means is discrimination is allowed unless a specific law prohibits it.

The United States Constitutional and federal laws make it unlawful for anyone to discriminate because of:

Age (if one is 40 or over)
National Origin
Sex (including being pregnant and sex specific medical conditions)
Genetic Information
Citizenship Status

California probably has the highest number of additional protected classes of persons who cannot be discriminated against:

Mental Disability
Marital Status
Sexual Orientation
Gender Expression
Gender Identity
Medical Condition
Military Status
Victims of Domestic Violence
Primary Language
Political Affiliation

It is the last one - political affiliation - we are interested in.

Many of California's anti-discrimination classes are listed in the Civil Code or Government Code. But political affiliation is not.

Diving into the Labor Code applicable to employers - but not businesses in general - we find sections 1101 and 1102 which state:

No employer shall make, adopt, or enforce any rule, regulation, or policy:

(a) Forbidding or preventing employees from engaging or participating in politics or from becoming candidates for public office.

(b) Controlling or directing, or tending to control or direct the political activities or affiliations of employees.

No employer shall coerce or influence or attempt to coerce or influence his employees through or by means of threat of discharge or loss of employment to adopt or follow or refrain from adopting or following any particular course or line of political action or political activity.

California Labor Code section 1101(b) is clear enough: an employer may not discriminate against employees because of their political affiliations.

But what about businesses, such as the bakery being asked to make a political cake?

There is no California statute prohibiting political party discrimination.

However, the California Constitution may contain this type or prohibition.

In 1979 the California Supreme Court decided a case called Gay Law Students Association v. Pacific T&T (24 Cal.3d 458 for anyone wanting the legal citation). The issue in that case was Pacific T&T not hiring homosexuals or anyone affiliated with gay groups.

Various claims were brought, and the Supreme Court noted the above Labor Code sections 1101 and 1102 prohibited this type of discrimination by an employer.

Another claim, though, was for violation of the equal protection clause in the California Constitution.

Article I, Section 7(a) of the California Constitution protects against arbitrary discrimination by stating "A person may not be deprived of life, liberty or property without due process of law or denied equal protection of the laws."

The California Supreme Court held Pacific T&T's discrimination against gays violated this equal protection clause.

However, the court also stepped all over itself, taking great pains to explain that Pacific T&T was a privately owned public utility and that it would be treated as a government agency.

The reason for the contortion was back in 1979 the court was not willing to declare that a purely private business could discriminate by not hiring gays.

Of course, today, that is not an issue when it comes to gay discrimination.

But what about political party discrimination?

The key for me is the court's statement that the equal protection clause protects against "arbitrary" discrimination.

Could a bakery refusing to bake a cake for Democrats be engaging in arbitrary discrimination because a cake is unrelated to politics? Maybe.

Note here the discrimination is solely because of political party membership. The cake could simply state "Happy Birthday" and the arbitrary refusal is not because of the message on the cake, but because the customer is a Democrat.

What if the bakery staked out a marketing position of only catering to Republicans?

That would not seem to be so arbitrary.

Then it is similar to political groups with the right to exclude others from the opposing party. That is what makes them a specific political group, or party.

Bottom line for political membership discrimination in California:

It is against the law for employers to discriminate against employees because of their political affiliation.

It may be against the law for a business to arbitrarily discriminate against a customer because of their political affiliation.

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