Eugene Volokh
October 29, 2012

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.

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