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Can Your Employer Fire You For Your Political Beliefs?

Mitt Romney recently told American employers that they should use their power of their employees to vote Republican. Some American employers

Can Employers Threaten Employees to Influence Their Political Vote?

already do this, some going as far as to tell their employees that if Obama wins the election, there will be job losses. In much of the U.S., this nonsense is perfectly lawful, though in some states there are laws that prohibit employers from using threats to pressure employees to vote for a particularly party.

What’s the situation in Canada?  Do you think your employer can threaten to fire you if the Conservative Party loses the next election, or if the NDP wins?  Or, can you be dismissed by your Conservative-supporting employer for posting on Facebook that you are a Liberal supporter, of for putting a Liberal sign on your front lawn?

The answer is that it depends what your contract says, and where you live.

Does your Employment Contract Prohibit Discrimination on the Basis of Political Opinion?

Let’s begin with your contract.  Do you even have a written employment contract?  Many of you won’t, in which case you have a verbal or oral contract.  Unless your employer specifically told you that your oral contract includes a prohibition on being dismissed or disciplined for your political beliefs, your contract does not protect you in this regard.

If you have a written employment contract, look at it.  If you are nonunion, I bet you the moon that it doesn’t have a term in it saying that you can’t be fired for political opinions or affiliation.  If nothing in your contract specifically prohibits your employer from firing you for being a Liberal supporter, then you can be fired for that. Unless a statute prohibits employers from doing that.

If you are unionized, odds are your contract (the collective agreement) includes a term protecting you from discipline or dismissal without just cause, and I doubt very much any arbitrator would find that having a political view different from the employer’s or its managers constitutes just cause.  Once again, unionized workers are protected by their contract whereas nonunion workers likely are not.

Does a Statute Prohibit Employers from Discriminating Against Employees on the Basis of Political Opinion?

Take a look at this handy  chart of all the prohibited grounds in Canada, and which jurisdictions protect against discrimination on those grounds. The following jurisdictions have some form of prohibition against discrimination in employment on the basis of “political belief”:

Yukon, Newfoundland, British Columbia, Manitoba, Quebec, Nova Scotia, Prince Edward Island, New Brunswick and Northwest Territories

Some provinces/territories prohibit discrimination on the basis of simply “political belief” (i.e. B.C.), while others use “political belief, political association, or political activity” (i.e. Manitoba).  What is most notable is the number of jurisdictions that do NOT protect employees from discrimination on the basis of their political opinions, including Ontario and the Federal sector.

There’s been attempts to argue that the prohibited ground of ‘creed’ includes political belief in addition to religion, but that argument has

Can you be Fired for Placing 'Wrong' Sign on Your Lawn?

failed.  See this nice overview of what ‘creed’ does and does not include, prepared by the Ontario Human Rights Commission. For example, in Jazairi v. York University, the Ontario Court of Appeal ruled that a professor’s views on Palestine and Israel were political beliefs that are not encompassed by the ground ‘creed’ in the Ontario Human Rights Code.  As such, alleged discrimination on the basis of political belief or opinion was not covered by the Code.  The argument that the omission of ‘political belief’ from human rights codes violates the Charter has also failed.

Even in those provinces where political belief is a prohibited ground in human rights legislation, it is far from certain that it would be unlawful for an employer to actually carry through on the threat to fire employees because they are unhappy with the election outcome.  I received an email from someone in B.C. who told me of incidents there were employers threatened to fire employees if the NDP won the provincial election.  Political belief is a protected ground in the B.C. Human Rights Code.  Therefore, if the employer started firing known NDP supporters, that would be a Code violation. However, if an employer fired employees after an NDP win, but without knowledge of which employees actually supported or voted NDP, then it would be hard for any particular employee to prove they suffered discrimination.  An employee would need to show that they had a political belief (I support the NDP), and that because of it, they were disadvantaged in their employment.  The fact the employer woke up angry the day after the NDP wins, and decides to indiscriminately fire people, would not raise any obvious human rights breach.  Do you disagree?

Does Other Legislation Prohibit Employers from Pressuring Employees to Vote a Certain Way?

Elections legislation (like the Ontario Elections Act) sometimes contain rules about attempting to bride people to vote a certain way, and preventing people from voting. Perhaps you could stretch that language to catch some types of activities that an employer could engage in to persuade workers to vote for the employer’s preferred party.  For example, Section 96.1 of the Elections Act prohibits any person from promising employment “in connection with the exercise or non-exercise of an elector’s vote”.  Could that be applied to an employer who tells employees that their future employment prospects are threatened if the Conservatives lose the next election?  How about an employer that only offers employment to job applicants that check that they are Conservative supporters on a job application form?  Maybe.  Do you think that Section 96.1 of the Elections Act was intended to apply to those types of situations?

I haven’t checked the other provincial elections legislation to see if there are sections that could regulate employer behaviour. If you know of any, please let us know by using the comment function.

The Big Policy Question:  What Public Interest is Advanced by Allowing Employers to Threaten and Punish Employees for their Political Beliefs?

Put on your Minister of Labour hat.  Can you think of any sound public policy justification that could explain why Ontario (and several other jurisdictions) have chosen NOT to legislate against discrimination in employment on the basis of political belief?

Right now, in Ontario, an employer could ask you in a job interview what political party you support, and if you answer ‘wrongly’, you can be denied the job.  Is that a sound public policy?  Why or why not?

Right now, in Ontario, you can be fired if the employer’s learns that you support a political party or candidate, or that you volunteer or work for a political candidate or party, that the employer doesn’t support.  Is that sound public policy?

Right now, your employer can probably force you to attend a meeting at work and then proceed to order you to vote Conservative under threat of job losses.  [I say probably because, as I note above, there's the possibility that the Elections Act could be stretched to cover a threat to end employment].  Does that make good policy sense to you?  Why or why not?


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One Response to Can Your Employer Fire You For Your Political Beliefs?

  1. Juliana Saxberg Reply

    October 22, 2012 at 12:47 pm

    There is an argument to make against discrimination on the basis of political affiliation in employment, based on the employer’s common law implied duty of fairness in the manner of termination, which was recognised in one (admittedly dated) case – Sweetland v. Newfoundland, 2002 CanLII 45654(NL SCTD), in which a civil servant fired on the basis of political affiliation was found to have been wrongfully dismissed. In this pre-Keays/pre-Fidler case, the notice period was augmented by a Wallace factor of seven months because of discrimination against the employee based on his “perceived political affiliation” which was found to have caused him “humiliation, embarrassment and damage to his sense of self-worth and self-esteem.” See http://www.canlii.org/en/nl/nlsctd/doc/2002/2002canlii45654/2002canlii45654.html

    Certainly, the duty of fair dealing in the manner of termination has been modified by Keays, but I understand courts continue to recognise that it exists, i.e. Beggs v. Westport Foods Ltd. 2011 BCCA 76. Sweetland stands as an example of a common law rule that it is improper to dismiss an employee based on actual or perceived political affiliation. This is the only case I am aware of that has found actionable discrimination on the basis of political belief in the context of a wrongful dismissal action, even in the absence of a Human Rights Code or other statute specifically or inferentially prohibiting such discrimination.

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