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87 U. Cin. L. Rev. 761 (2018-2019)
Political Discrimination by Private Employers

handle is hein.journals/ucinlr87 and id is 760 raw text is: POLITICAL DISCRIMINATION BY PRIVATE EMPLOYERS R. George Wright* I. INTRODUCTION In general, private employers are not legally prohibited from discriminating against current and prospective employees on the basis of political beliefs.1 But there are exceptions to this rule, within the United States2 and internationally.3 This Article examines the persuasiveness and the limitations of the general rule and its exceptions, with special attention to the current political polarization in the United States.4 Thus, this Article takes into account the increasing significance of partisan and ideological politics in typical private workplaces.5 Such developments must be placed in the broader context of the increasing importance of the explicit politicization and polarization of the culture beyond the workplace.6 These trends are partly institutional,7 but, as it turns out, they also cannot be understood apart from considerations of what we will call the basic epistemic or cognitive virtues and vices.8 Throughout, the Article recognizes the advantages, costs, and risks associated with adopting a general rule intended to protect current and prospective employees from a private employer's discrimination on the basis of politics.9 In the final section,10 this Article argues that, particularly in light of our political and cultural circumstances, recognizing a general right of private employees to be free from employer discrimination based on politics would be unworkable and * Lawrence A. Jegen Professor of Law, Indiana University Robert H. McKinney School of Law. 1. See Section II. This Article will not specifically address political discrimination in the context of private university faculty decisions, given the current uncertainties over the basic functions of such universities. For background, see R. George Wright, Campus Speech and the Functions of the University, 43 J. COLLEGE & UNIV. L. 1 (2017). Private employers such as political party organizations and ideological think tanks present special problems as well. Not-for-profit private employers, outside the above categories, fall within the scope of this Article. Labor union organizing rights of employees are addressed below only tangentially, as are relations between corporate employers and their customers. For a broader survey of ways in which a private workplace might be thought of as a form of government, see Elizabeth Anderson, Private Government: How Employers Rule Our Lives (and Why We Don't Talk About It) (2017). 2. See infra Section II. 3. See id. 4. See infra Sections III - VI. 5. See infra Section III. 6. See infra Section IV. 7. See infra Sections IV - V. 8. See infra Section V. 9. See infra Sections II. - VI. 10. See infra Section VI. 761

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