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Pennsylvania Employment: Political Discrimination In Government Jobs

By Samuel Cordes

This article introduces illegal political discrimination by government employers.

After an election in which the voters “threw the bums out,” the new bums might want to turn around and throw out the folks who worked for the bums previously in office. But there is a catch: the U.S. Constitution forbids governmental discrimination against public employees based on their political affiliations, with narrow exception.

Political affiliation discrimination

This article will begin to explore the concept of illegal discrimination in public employment based on political affiliation – a component of constitutionally protected speech, expression, belief and association. The civil rights law surrounding political discrimination in governmental employment is extremely complex as articulated in detail by many cases from the U.S. Supreme Court and lower courts.

Not only is the law complicated, but also each political discrimination claim is itself highly dependent on the individual facts of the situation. Finally, suing a governmental unit can also be tricky from a legal standpoint.

Experienced legal counsel important

Because of these aspects of political discrimination claims, any Pennsylvanian who feels that he or she has been terminated (or not hired) or otherwise negatively treated, such as by demotion or in unequal treatment with other employees, in a government job, because of political affiliation, should speak with experienced legal counsel as early as possible about the worker’s legal rights, including a potential lawsuit.

An employment lawyer who has handled political discrimination cases will know how to launch an appropriate investigation of the matter and be aware of any applicable deadlines. One such legal resource for Pennsylvanians is the law firm of Samuel J. Cordes & Associates, based in Pittsburgh and representing employees throughout Western Pennsylvania.

A narrow exception

The exception to the prohibition of political discrimination in this context grows from the notion that an elected official needs certain people around him or her of like political thought in order to carry out the policies on which he or she was elected and that this is part of a functioning democracy.

Judges have looked at certain aspects of jobs to decide whether political association is an essential part of the duties. For example, political patronage may be more likely to be allowed if the employee has a high level of discretion or responsibility, significant input into governmental decisions, is in a policymaking position or is a public spokesperson.

Elements of a political discrimination claim

According to the U.S. Court of Appeals for the 3 rd Circuit, which includes Pennsylvania, a plaintiff in a political discrimination case must show:

  • Political association was not an appropriate and legal consideration for the job in question.
  • The employee was engaging in protected political expression; in other words, he or she had (or did not have) a political affiliation or belief, or engaged in (or did not engage in) political activity.
  • The employee’s political affiliation or belief (or failure to have one) was a “substantial or motivating factor” in the government employer’s firing or other negative employment action.

At this point, the public employer could avoid liability if it shows by a preponderance of the evidence that it the negative employment action would have been taken anyway even without the political affiliation. For example, the employer could provide evidence that it took negative action because of poor performance or insubordination.

This just scratches the surface of an evolving and intricate area of employment law. Be sure to engage an experienced employment law attorney if you believe you have experienced political discrimination in your government job.