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Blacklisting Ex-Trump Officials Could Put Firms at Legal Risk

April 12, 2019, 10:16 AM

Civil rights groups recently called on businesses not to hire officials who served in the Trump administration. But if a state or city bars political affiliation discrimination, employers that blacklist the ex-aides could find themselves facing lawsuits.

The Trump administration has seen the departure of 15 Cabinet members and a 66 percent turnover rate among senior positions within the executive office of the president, according to data from the Brookings Institution. Departing administration workers could likely end up in Big Law firms, state governments, or in-house counsel in the private sector, based on a Bloomberg Law analysis of the career paths of former heads of legal and labor and employment agencies.

Federal law doesn’t expressly prohibit political discrimination in the private sector. In several states and the District of Columbia, however, a hiring boycott of ex-officials presents legal risk to employers: California, Colorado, Louisiana, New York, South Carolina, Utah, and D.C. have laws in place that ban companies from making hiring decisions based on political affiliation or activity.

But how a bias claim would play out in court isn’t easy to predict. Laws differ on defining political affiliation or activity—an individual must be a party member or running for office, for example—and workers could find it difficult to prove employer intent behind hiring decisions. That would benefit companies, which can also argue they didn’t select someone for a job because of some other reason besides politics.

Forty-one groups signed on to an April 6 letter calling on the CEOs of Fortune 500 companies to blacklist senior administration officials, some of whom have left their post in the last few months, including departing Secretary of Homeland Security Kirstjen Nielsen and former Acting Director of U.S. Immigration and Customs Enforcement Ronald Vitiello.

The groups asked specifically that companies “make it clear that you will not hire for employment, contract for consulting, or seat on your boards, anyone involved in the development or implementation of the Trump administration’s family separation immigration policy.”

Interpretations of Law

“In D.C., political affiliation is clear and unambiguous as a protected category” under the city’s Human Rights Act, Kevin Kraham, a shareholder in the D.C. office of Littler Mendelson, said. “Private employers generally cannot discriminate against or harass individuals on the basis on their endorsement of a political party.”

How a jurisdiction defines political affiliation, however, could be open to interpretation, David Simmons, adjunct professor of law at Georgetown University, said. For example, “political affiliation” has been construed “fairly narrowly” in D.C.—meaning to belong to or endorse a political party. Under a more narrow interpretation, government employees may not necessarily qualify for protection just because they worked in the Trump administration.

Moreover, if ex-officials were to say they weren’t hired because they worked for Trump and were being discriminated against, “I also don’t see them winning under D.C. law,” Simmons said. “They would have to show that that was the real cause for them not being hired.”

The obvious defense for a company accused of political affiliation discrimination in this context would be that the job candidates aren’t being discriminated against for their politics, but for the actions they took while in service to the administration, Michael Selmi, Samuel Tyler Research professor of law at George Washington University Law, said.

“Whether that would fall outside the statute is hard to say because there have been so few cases in D.C. or elsewhere,” Selmi said.

Business Sense

But just because a decision to blacklist former administration officials may not mean losing in court, it also isn’t necessarily considered good business practice.

“If you’re a private employer, is there a specific business reason not to hire someone? How would you justify that decision if challenged? And how would you explain that decision if challenged?” Kraham said. “At the end of the day, although it might be difficult, keeping personal politics out of the assessment is critical, because employers should make informed, deliberate business decisions regardless of the political context.”

Companies that do take a stance on broader political actions as a part of their brand, or values, or to attract customers also face the potential for backlash, Selmi said. Political neutrality is often the best course of action for a lot of companies’ brands.

“If I was advising someone who didn’t want to hire someone based on their prior employment, I would advise against it,” Simmons said.

To contact the reporter on this story: Genevieve Douglas in Washington at gdouglas@bloomberglaw.com

To contact the editors responsible for this story: Jay-Anne B. Casuga at jcasuga@bloomberglaw.com; Cynthia Harasty at charasty@bloomberglaw.com