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The Eighth Circuit Differentiates Between Political Discrimination and Retaliation

Wednesday, May 23, 2012

By R. Scott Oswald, The Employment Law Group®

In its December 2011 decision, Wagner v. Jones, the U.S. Court of Appeals for the Eighth Circuit for the first time held that a public employer violates the First Amendment to the U.S. Constitution when it uses an employee or applicant for employment's political affiliation as a factor in its employment decisions.1 In the process, the Eighth Circuit articulated an important protection for federal, state, and local government employees against unmeritorious, capricious employment decisions.

Wagner v. Jones

Defendant Carolyn Jones, dean of the Iowa College of Law, denied plaintiff Teresa Wagner a position teaching legal writing on four separate occasions. Wagner's resume showed that she had worked for well-known socially conservative organizations such as the National Right to Life Committee and the Family Research Council. Ms. Wagner alleged that Dean Jones had denied her the position because of her conservative political beliefs and her association with well-known socially conservative causes.

Ms. Wagner filed a First Amendment claim against the public university under the Civil Rights Act of 1871 (42 U.S.C. § 1983). As evidence of political affiliation discrimination, Ms. Wagner showed that only one out of 50 faculty members at the Iowa College of Law is a registered Republican. She also stated that an associate dean had warned her to conceal the fact that the Ave Maria School of Law, which some in the legal education community view as a bastion of conservative legal philosophy, had offered her a teaching position. The same associate dean later sent an email stating:

“Some people may be opposed to [Ms. Wagner] serving in any role in part at least because they so despise her politics … I hate to think that's the case, and I don't actually think it is, but I'm worried I may be missing something.”

The school ultimately selected two less-experienced individuals for the open teaching positions.

The U.S. District Court for the Southern District of Iowa granted summary judgment for Dean Jones finding that the dean, in her official capacity, had acted in strict conformity with the school's hiring practices when she repeatedly rejected Ms. Wagner's applications. The district court further found that Ms. Wagner had demonstrated no direct evidence that Dean Jones considered her political beliefs when denying her the position.2

The Eighth Circuit reversed the district court's decision, holding that Ms. Wagner had met her prima facie burden showing that her membership in the Republican Party and her work with socially conservative organizations, including the Ave Maria School of Law, had motivated Dean Jones's decision to deny her the positions.3 The court then shifted the burden of persuasion to Dean Jones to show that she would have made the same decision regardless of Ms. Wagner's political status and affiliations.4 The appeals court held that Dean Jones could not meet this burden.5

Political Discrimination Versus Political Retaliation

The First Amendment prohibits a state institution such as the Iowa College of Law from making a hiring decision based on political belief or association.7 Discrimination based on political belief or association is of particular concern in an academic setting.8 “No more direct assault on academic freedom can be imagined than for the school authorities to [refuse to hire] a teacher because of his or her philosophical, political, or ideological beliefs.”9

While other federal appeals courts have dealt extensively with cases involving retaliation for political conduct, such as publicly opposing a law, campaigning for a candidate, or running for public office, few have dealt with the question of whether the First Amendment bars public sector political status affiliation discrimination unrelated to an employee's conduct. The Eighth Circuit in Wagner held that it does.
The Eighth Circuit cites as its starting point the U.S. Supreme Court case Rutan v. Republican Party of Illinois for the proposition that the First Amendment protects political belief and association.10

The Eighth Circuit goes on to state the quantum of proof that a plaintiff claiming political discrimination must show: that his or her political affiliation was a substantial or motivating factor in the adverse employment decision.11 In order to explain the difference between a political discrimination and a political retaliation claim, the Eighth Circuit likened the claims to discrimination and retaliation claims under Title VII of the Civil Rights Act of 1964: “[I]n the Title VII context the discrimination ‘provision seeks to prevent injury to individuals based on who they are, i.e., their status. The antiretaliation provision seeks to prevent harm to individuals based on what they do, i.e., their conduct.’ ”12 Ms. Wagner was seeking protection based on her protected trait—her status as social conservative—rather than on her actions.

The Wagner opinion cites to several First Circuit cases regarding political affiliation discrimination.13 However, none of these cases so clearly distinguishes between a political discrimination and retaliation claim. Although the 2007 Morales–Tanon v. Puerto Rico Electric Power Authority decision establishes a prima facie cause of action for discrimination that does not require protected conduct, the court found against the plaintiffs because the plaintiffs could not demonstrate that the employer stifled their right to publicly assert their political affiliation or speech, i.e., political conduct.14

The Eighth Circuit went on to note that the Sixth Circuit expressly declined to address whether or not a claim for political discrimination exists.15 In two recent decisions, the Sixth Circuit referenced public employees' party affiliation but ultimately required that they demonstrate that they engaged in protected conduct, specifically running for political office and voicing concern about partisan considerations in grant awards.16 Thus, these are retaliation claims rather than discrimination claims.

The Fifth Circuit has specifically stated that it will focus its inquiry on an employee's support for a political candidate, which is political conduct, rather than an employee's party affiliation.17

The Third Circuit found that the First Amendment protected a public employee's lack of interest in politics, but characterized this behavior as protected conduct, therefore protecting the employee's refusal to maintain a political affiliation rather than her status as apolitical.18

Practical Advice for Potential Employers

Employers should take steps to instruct all employees involved in the hiring process to avoid discrimination based on political affiliation. Interview questions about previous employment should focus on the applicant's experience, not on the former employer's ideology.

In addition, many employers are now conducting thorough background checks of potential employees. These background checks often include a review of an applicant's social media presence. In reviewing these reports, a potential employer may learn a great deal of personal information about an applicant.

If an interviewer learns about an applicant's political affiliation or support of political causes, he or she should treat this information just as they would treat information about the applicant's religion or marital status. The interviewer should not consider this information in the hiring decision.

It may be prudent for an employer to hire a third-party investigator to conduct background checks and to request that the investigator remove all irrelevant information, such as information regarding a potential employee's political activities, from his or her report to the employer. This could insulate the employer from an accusation of political discrimination if it did not select the applicant.

Employers should also be aware that several states and local governments prohibit discrimination based on political status or association by statute.19 These statutes often protect private employees as well as public employees.

R. Scott Oswald is the managing principal at The Employment Law Group® in Washington, D.C., where he concentrates his practice on representing individual plaintiffs in whistleblower, qui tam, and employment rights litigation. He has extensive jury trial experience litigating claims under the Family and Medical Leave Act, the Americans with Disabilities Act, Title VII of the 1964 Civil Rights Act, and other statutory discrimination claims. Mr. Oswald gratefully acknowledges the assistance of Kellee Boulais Kruse, an associate at The Employment Law Group® and can be reached at 888-603-0983.


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