Gallaudet University’s “chief diversity officer,” Angela McCaskill, was suspended (with pay) for signing a petition that sought a referendum vote on whether to undo Maryland’s new same-sex marriage law. Is it legal for a private employer to suspend or fire an employee for signing a referendum or initiative petition?
It depends on the state. As I’ve discussed in a good deal of detail in a recent article, Private Employees’ Speech and Political Activity: Statutory Protection Against Employer Retaliation, about half the states impose some restrictions on private employers’ ability to retaliate against employees for the employees’ speech or political activity. Some state laws cover a large range of speech and political activity, while some cover only a small range. (Some, which I didn’t discuss in the article, only ban discrimination based on how an employee voted.) But nearly all the states that do impose such restrictions — beyond a mere ban on discrimination based on voting — would apply to referendum or initiative signatures.
Indeed, D.C. is one of these jurisdictions.
1. D.C. law provides that it is a crime for any person to “by threat or intimidation, interfere with, or attempts to interfere with, the right of any qualified registered elector to sign or not to sign any initiative, referendum, or recall petition, or to vote for or against, or to abstain from voting on any initiative, referendum, or recall measure.”
2. Threat of firing or suspension likely qualifies as a threat (see Part II.A.8 of the article, as well as See, e.g., Carl v. Children’s Hospital (D.C. 1997), involving a slightly different but similar statute).
3. “You’re suspended because of your signature” should qualify as much as “we’ll suspend you if you sign.” As Davis v. La. Computing Corp., 394 So.2d 678, 680 (La. Ct. App. 1981), held — dealing with a statute that made it a crime for an employer to “coerce or influence, or attempt to coerce or influence any of his employees by means of threats of discharge or loss of employment in case such employees should support or become affiliated with any particular political faction or organization, or participate in political activities of any nature or character” —
[T]he actual firing of one employee for political activity constitutes for the remaining employees … a threat of similar firings.
4. Though this is a criminal statute, such statutes often form the basis for courts to impose civil liability as well, under the “wrongful discharge in violation of public policy” tort. See, e.g., Carl v. Children’s Hospital (D.C. 1997).
The problem for McCaskill is that the underlying D.C. statute defines “referendum,” “initiative,” and “recall” as limited to D.C. measures, and doesn’t include out-of-state measures; Gallaudet’s action is therefore not a crime. But it’s possible that D.C. courts would conclude that, given that the clear D.C. public policy is to protect those who sign D.C. referendum petitions from employer retaliation, courts should — in developing the common-law wrongful discharge tort — apply the same protection to signers of Maryland referendum petitions as well.
Note that Gallaudet receives a good deal of federal funding, has a federal charter, and provides that three of the 21 board members are to be government officials. But this likely does not suffice to make it a government entity, which would be bound directly by the Bill of Rights; see Becker v. Gallaudet Univ. (D.D.C. 1999), and, as to funding, Rendell-Baker v. Kohn (1982).
Thanks to Chris Geidner (Buzz Feed) for the pointer.