Political affiliation discrimination in the federal workplace
Do not wait to seek legal counsel if you believe you are being retaliated against in your federal sector job because of your political affiliation.
Many Americans are looking over a political chasm at one another after recent divisive events. Those of all political stripes can have deep feelings about their views, sometimes dividing families and friends. Of course, people take their political identities to work with them in both the private and public sectors, but for federal sector employees, federal employment law has something to say about this.
We recently published a post about the Hatch Act, a federal law that limits the ability of a covered federal worker to engage in partisan politics on the job as well as to seek elected office in affiliation with a political party. The details and extent of these restrictions vary by job.
Today we look at protections for federal employees from political discrimination on the job, which may be a concern for those federal workers worried about political differences with their supervisors, managers or colleagues in this turbulent time. It is understandable that someone might worry about political alienation being taken to the next level and result in a negative employment action like demotion or termination based on political affiliation discrimination.
If this sounds like your situation, there are ways to protect your career and retirement that you have worked hard and long to secure. At this time of political chaos, especially for those working in D.C., it is wise to understand your federal employment rights.
What is political affiliation discrimination?
While political discrimination is not prohibited under federal law in private workplaces (but could be under state or local laws), it is banned against covered federal employees.
The Civil Service Reform Act of 1978 (CSRA) identifies prohibited personnel practices (PPPs), harmful actions that supervisors and managers are prohibited from taking against their federal employees (or job applicants), including such an action based on “political affiliation” discrimination. Interestingly, the statute also prohibits favoring an employee based on political affiliation.
A supervisor or manager found to have committed a PPP may be subject to penalties and other disciplinary action, including termination in serious cases.
Federal agencies and courts have clarified what discrimination based on “political affiliation” means. It does not mean negative treatment based on office politics or on personal animosity. The Merit Systems Protection Board (MSPB) explains that political affiliation is not “political correctness.” In the widely cited case of Mastriano v. Federal Aviation Administration, the U.S. Court of Appeals for the Federal Circuit explains that it means affiliation with a partisan political party or candidate. In that case, union affiliation was found not to be the same as political affiliation.
Do you think you were the victim of political affiliation discrimination?
Are you a federal employee who might have been targeted for your political affiliation? Do you face discipline, a negative decision impacting your pay, a transfer or reassignment, a negative performance review, a “significant change in duties, responsibilities, or working conditions” or other similar prohibited action at work? If you believe an action harmful to you was motived by unlawful political affiliation discrimination, this could be a PPP, giving you certain legal rights. Remember that you do not have to face this alone.
Speak to a lawyer with specific experience representing federal sector employees as early as possible, even if you have heard only gossip or just have the feeling a discriminatory action may happen. Legal guidance is crucial because there are certain channels or steps to take to fully protect your rights and there may be deadlines to meet.
An attorney may be able to negotiate a resolution without a complaint or appeal. If you are under investigation, legal counsel can help to protect your rights in that process and determine whether the investigation could be in retaliation for your politics.
If necessary, legal counsel can explain your legal options when you face adverse personnel action that rises to the level of a PPP. For example, you may be able to get corrective action through the federal agency for which your work, a complaint with the Office of Special Counsel (OSC), the MSPB or through a grievance pursuant to a collective bargaining agreement (CBA), if applicable. A negative decision from an agency may be appealable to federal court.
Do not let politically motivated employment action against you devastate your career.