‘Political correctness’ doesn’t matter: Political belief isn’t a protected characteristic

Some recently fired employees looking for reasons to sue their employers have started grasping at the gunwales of a “political correctness” lifeboat. They’re trying to claim that being fired for making politically incorrect statements is grounds for a discrimination lawsuit under federal law.

Nice try but no dice was the verdict in a recent 9th Circuit Court of Appeals case.

Recent case: Tom, who is white, worked as a judicial marshal for the Nevada state court system for about 18 years.

Sometime around 2012, Tom began to amass disciplinary actions and was the subject of several third-party complaints about his behavior. For example, he was cited for appearing to sleep during a court proceeding.

He allegedly made inappropriate misogynistic remarks to a female law clerk around the same time.

He was also investigated for allegedly making racially charged comments to one of his co-workers, a black marshal, which resulted in a shouting match at the courthouse metal detectors.

Then the court system received a complaint about Tom’s behavior toward a detainee in court. Allegedly, he touched the detainee by “tapping” him on the face.

Then, he made a series of comments that were described as vulgar and disparaging of his employer, including a series of statements about his supervisor. Finally, he held up an attorney at the security checkpoint by running her bag through the X-ray machine numerous times, allegedly looking for contraband. When he finally let her through, he made a series of vulgar comments, including using a disparaging misogynistic label.

He was discharged following an investigation.

Tom sued, alleging he had been fired because he was a white man who was politically incorrect.

He lost and appealed to the 9th Circuit Court of Appeals, which upheld the discharge. The court noted that his claims of political incorrectness essentially sank any discrimination claims he had, given that political belief is not a protected characteristic. (Knickmeyer v. Nevada, 9th Cir., 2017)

Warning: While the federal court system does not consider comments like the ones involved in this case to be protected activity or grounds for a lawsuit over discipline or discharge, the law in California may give at least limited protection to those who claim they have been fired for their political beliefs.

Several conservative white men have recently sued in California state courts, alleging that they were targeted for discrimination and forced to work in a hostile work environment. They essentially allege that their after-hours (and sometimes at-work) political behavior or expressed beliefs are being punished because their employers hold different beliefs.

These cases will take a while to work through the state court system. Employers should stay alert for developments. Meanwhile, consult your attorney if a worker comes forward with a claim of discrimination based on political beliefs or actions.

Be sure to investigate all claims thoroughly, even if the claims seem outlandish or controversial. And get expert legal help if there are conflicting allegations.

One strange scenario to watch out for: After a woman complains about a man making sexually harassing comments, the man alleges he has the right to hold a political belief about male superiority in the workplace. Believe it or not, such claims have been made.

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