Political Discrimination: The Elephant in the Room?

By Jeremy M. Brenner

The First Amendment to the U.S. Constitution prohibits a state employer such as a university from discriminating against applicants and current employees based on their political beliefs or affiliations except in very limited instances. If an applicant or employee can demonstrate that her political views or associations caused a state employer to make an adverse employment decision (e.g., refusal to hire, termination, or failure to promote), the employer must prove it would have taken the same action regardless of the individual’s political views. In a recent decision, the Eighth U.S. Circuit Court of Appeals (which covers Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota) explained what constitutes unlawful “political discrimination” and how state employers can prevent it, particularly in a politically charged election year.

Facts

Teresa Wagner graduated from the University of Iowa College of Law (Iowa Law), a state-run school. As a registered Republican and an advocate of socially conservative causes, she spent time working for the National Right to Life Committee, which opposes abortion and euthanasia, and the Family Research Council, a conservative advocacy group. She also spent two years teaching legal research and writing at George Mason University School of Law.

In 2006, Wagner began working part-time for Iowa Law in its writing center. Soon after, the school announced two full-time openings for legal research and writing instructors, and Wagner applied for a position. Her resumé included her previous work for conservative organizations. Her application was reviewed by the Faculty Appointments Committee, which consisted of chairman Mark Janis, law school dean Carolyn Jones, and four faculty members. Janis initially told Wagner that her application had been well received by the committee.

In her initial interview, a committee member asked Wagner if she knew the difference between legal writing and analysis, and she responded affirmatively. Janis later e-mailed Wagner, stating that the committee was enthusiastic about her candidacy. Of 50 applicants, she was one of five selected for a second full-day interview. Only three candidates actually interviewed for the two open instructor positions.

Before her full-day interview, Wagner met individually with associate deans John Carlson and Eric Anderson. She told Carlson that she had previously received an offer for a tenure-track position at Ave Maria School of Law. Carlson told her to conceal that fact during her interview because of Ave Maria’s conservative reputation. By contrast, Iowa Law has a liberal reputation, and only one of 50 law professors there is a registered Republican. For that reason, Wagner asked Anderson if he thought the faculty would hold her conservative views against her. He indicated he didn’t know. He did, however, relay her concerns about her conservative political affiliations being held against her to Jones.

During the full-day interview, members of the faculty questioned Wagner on the differences between legal writing and analysis and which was more important to the position. Wagner claims she responded appropriately. After the interview concluded, seven faculty members complimented her on her performance. Another professor and two reference librarians e-mailed their support for her to be hired. Carlson and Anderson both supported hiring her, and student feedback also was positive. Wagner received the highest possible ratings and was ranked higher than the other top candidate, Matt Williamson, by the students.

The next day, the faculty discussed the applicants in a meeting attended by Jones. Ultimately, although there were two positions available, the faculty voted to hire only Williamson. As an adjunct instructor, he had never practiced law, had published no articles, and had no previous successful teaching experience. Janis later informed Wagner that she would not be offered the position.

Wagner later learned that professor Randall Bezanson, a decidedly liberal faculty member and legal scholar, was a vocal opponent to hiring her. Bezanson later testified that he remembered some mention of Wagner’s conservative viewpoint during the meeting. On the day of the decision, Carlson expressed concern in an e-mail to Jones that the faculty opposed hiring Wagner in any position, at least in part because they so “despised her politics,” especially her conservative activism. The school provided a “hiring justification summary” to Wagner stating the faculty perceived her to be less familiar with the analysis component of the legal research and writing program than Williamson. The statement encouraged her to apply for an adjunct position to gain experience in that area.

Wagner pursued an adjunct position with Iowa Law. She received unanimous support from the committee members for consideration by the faculty. However, she wasn’t offered an interview, and the faculty voted not to hire her for the position without explanation. Instead, Jones hired two adjuncts, neither of whom had previous law school teaching experience. Additionally, they both had such low student evaluation scores that they weren’t considered for the full-time positions. Another professor expressed his surprise to Wagner that she hadn’t been hired for the adjunct position because he had never heard of the faculty rejecting an applicant who had been recommended by the committee. Carlson suggested to Wagner that she not apply again.

Nevertheless, Wagner applied for an adjunct position four more times between 2007 and 2009 and was rejected each time without an interview. She eventually filed a lawsuit against Jones for First Amendment political discrimination alleging that she violated her First Amendment rights to political belief and association by refusing to hire her for any of the legal research and writing positions.

Political Discrimination By a State Employer Is Prohibited

The First Amendment prohibits a state employer from basing hiring decisions on political beliefs or associations, with limited exceptions for policymaking and confidential positions (neither of which applied to this case). The state can neither directly nor indirectly interfere with an employee’s (or applicant’s) rights to political association and belief. Any action by the state that runs afoul of those legal precepts may constitute unlawful political discrimination.

Political Discrimination Test

When a nonpolicymaking employee files a political discrimination case against a state employer, the following test applies:

• The employee must first produce sufficient evidence that her political belief or affiliation was a substantial motivating factor in the adverse employment action (in Wagner’s case, failure to hire).

• If the employee meets that burden, the state employer must:

• articulate a nondiscriminatory basis for the adverse employment action; and
• prove that it would have taken the same action regardless of the employee’s political belief or affiliation.

• If the employer can do that, the employee must then discredit the nondiscriminatory explanation by producing evidence that political discrimination was likely a motivating factor.

Wagner Establishes Political Discrimination

If a state employer refuses to hire an individual because of her political beliefs or associations, then the individual has suffered an adverse employment action. Thus, Wagner needed to prove only that Iowa Law’s discriminatory motive regarding her political affiliation was a substantial motivating factor behind Jones’ decision not to hire her. On that point, Wagner was able to show that:

• Only one of 50 faculty members at Iowa Law is a registered Republican.

• She was warned by Carlson to conceal her offer from a conservative law school.

• Someone mentioned her conservative beliefs in a faculty meeting.

• The candidates hired for the adjunct positions were less qualified than she was.

The court found the evidence sufficient to infer that Jones’ decisions not to hire Wagner were at least in part motivated by her political beliefs and associations.

Jones responded by arguing that she would have made the same hiring decisions regardless of Wagner’s political affiliations and beliefs. She explained that Wagner wasn’t hired because the faculty felt she didn’t understand the analysis portion of the legal research and writing program and that the hiring justification summary reflected that sentiment.

Wagner then attempted to discredit Jones’ nondiscriminatory explanation by arguing that she answered the interview questions about analysis satisfactorily. Furthermore, she showed that all the contemporaneous documentation from the interview process was positive and favored hiring her. Seven professors had complimented her performance, and she had received extremely positive student feedback. Additionally, the faculty had offered no explanation for hiring only one instructor when two positions were available, nor had they given any justification for repeatedly rejecting her applications for the adjunct positions.

After considering all the evidence, the Eighth Circuit found that Wagner had presented sufficient evidence of possible political discrimination. As a result, her case will now go to a jury to determine whether Jones violated her First Amendment rights.

Jones Could Be sued in Her Individual Capacity

Federal law provides that an individual can file a lawsuit and recover damages against any person who, acting “under the color of state law,” violates her rights secured by the U.S. Constitution or the laws of the United States. Because Jones is an employee of a state institution, her actions were considered “under the color of state law.” Therefore, she could be sued personally for allegedly violating Wagner’s First Amendment rights.

When state employees are sued in their individual capacities, they can assert as a defense that they have immunity, which shields them from individual liability. Jones argued that she was entitled to immunity in this case. However, the court found that the defense didn’t apply because Wagner had established a violation of her constitutional rights. Despite knowing that her political beliefs may have been impermissibly considered by the faculty, Jones decided not to hire her anyway. Wagner v. Jones, Dean, Iowa College of Law, No. 10-2588 (8th Cir., Dec. 28, 2011).

Bottom Line

When making employment decisions, state employers and individuals employed by state entities cannot discriminate against employees or applicants based on political beliefs or affiliation. Furthermore, individual supervisors may be subject to personal liability if they participate in decisions that violate federal law or the U.S. Constitution. State employers and supervisory-level employees must avoid considering a current or potential employee’s political views when making employment decisions and take appropriate measures to prevent others from doing the same. To avoid potential liability, state employers should be prepared to:

• articulate a legitimate nondiscriminatory explanation for the adverse employment action challenged; and

• demonstrate that the same action would have been taken without regard to the individual’s political beliefs or affiliation.

The more concretely a state employer can establish those facts through documentation and other evidence, the less likely a court will find that the employee’s First Amendment rights have been violated.

Jeremy M. Brenner is an associate with Armstrong Teasdale LLP in St. Louis, Missouri. As a member of the firm’s Employment and Labor practice group, Jeremy works with public and private sector employers in a wide array of industries in human resources related matters and all aspects of litigation at the administrative, state and federal levels. He can be reached at jbrenner@armstrongteasdale.com.