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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: 


                              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.


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