11

My understanding is that in most places in the US, it is generally legal to discriminate on the basis of political views or expression. For example, a restaurant owner could refuse to serve a customer wearing a MAGA hat.

Is there any jurisdiction where this is not the case, and discrimination on the basis of political views is prohibited?

0

7 Answers 7

15

In Seattle, it is one of the protected classifications. Political ideology is defined as

any idea or belief, or coordinated body of ideas or beliefs, relating to the purpose, conduct, organization, function or basis of government and related institutions and activities, whether or not characteristic of any political party or group. This term includes membership in a political party or group and includes conduct, reasonably related to political ideology, which does not interfere with job performance.

This covers employment, public accommodation, housing and contracting.

1
  • Comments have been moved to chat; please do not continue the discussion here. Before posting a comment below this one, please review the purposes of comments. Comments that do not request clarification or suggest improvements usually belong as an answer, on Law Meta, or in Law Chat. Comments continuing discussion may be removed.
    – feetwet
    Commented Sep 5, 2023 at 20:26
9

Political opinion is protected (Article 3 GG), provided the opinion does not violate the rights of others. This leads to a complex system of rights and exceptions.

For instance, a newspaper is a so-called Tendenzbetrieb, it is allowed to discriminate among their editorial staff based on the political opinion of the paper. If they have a subsidiary handling the printing, that would not be a Tendenzbetrieb and could not discriminate. And not all political opinions are equal. One which has been found to promote the overthrow of the constitutional order is not protected.


As pointed out in the answer by ProgrammingMachine5000, the Grundgesetz article does not directly bind non-public actors. However, it requires the legislative to enact legislation protecting it, e.g. Art. 75 BetrVG, which again mentions political views as a protected characteristic, but also Recht und Billigkeit (equitability). While ProgrammingMachine5000 quotes the example of a hotel owner being allowed to refuse guests, I quote the example of an employer not being allowed to fire employees ...

One might also note that the case mentioned by ProgrammingMachine5000 involved a leading NPD figure, a party which was labeled by the supreme court as holding anti-constitutional views.

10
  • 1
    Last sentence worded differently: Your right to voice a political opinion stops where it begins to be a crime.
    – Trish
    Commented Sep 2, 2023 at 18:00
  • 16
    @Trish that's a tautology Commented Sep 2, 2023 at 18:13
  • 2
    @user253751 It's not. Just because propagating a specific opinion (e.g. national socialism) isn't forbidden by criminal law, doesn't mean you can voice it without repercussions by service providers or employers in certain circumstances.
    – Joooeey
    Commented Sep 5, 2023 at 8:54
  • 1
    @Joooeey, this answer is specific to Germany. There are strict limits to the "repercussions" you mention, a lesson of our history.
    – o.m.
    Commented Sep 5, 2023 at 8:57
  • 1
    @o.m. Art. 3 III GG is about discrimination by the state. I think the question is about discrimination by private citizens. The AGG (general equality law) directed at privates does not include political opinion. Employment law has its own equality principles. But the example of the question (MAGA hat in restaurant) is legal in Germany.
    – K-HB
    Commented Sep 8, 2023 at 15:48
5

“Political opinion” is a protected characteristic under the Federal Australian Human Rights Commission Act and the Fair Work Act in employment or occupation.

It is also protected at a state or territory level everywhere except and .

5

The Equality Act 2010 includes "religion or belief" as protected characteristics, where the "or belief" part is defined in section 10(2):

Belief means any religious or philosophical belief and a reference to belief includes a reference to a lack of belief.

So there is no categorical protection for other kinds of beliefs, including political beliefs. However, currently the law is interpreted to mean that some political views do amount to philosophical beliefs, and that others can be protected if they are "based on" or "manifestations of" religious or philosophical beliefs.


In Mr C McEleny v Ministry of Defence: 4105347/2017, the court found the claimant's belief in Scottish independence to be a protected philosophical belief. The claimant even quoted from the Scottish National Party's manifesto, so it was certainly a political view; but the Employment Tribunal found that it amounted to a philosophical belief for the claimant, based on the five-part Grainger test:

(i) The belief must be genuinely held.

(ii) It must be a belief and not an opinion or viewpoint based on the present state of information available.

(iii) It must be a belief as to a weighty and substantial aspect of human life and behaviour.

(iv) It must attain a certain level of cogency, seriousness, cohesion and importance.

(v) It must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others.

Note that the Grainger test concerns not just what the belief is, but also why the person believes it. Particularly, a political view believed because of evidence rather than ideology would fail point (ii).


Also, in Dr David Mackereth v The Department of Work and Pensions (1) Advanced Personnel Management Group (UK) Limited (2): [2022] EAT 99 the Employment Appeal Tribunal found that the claimant's disbeliefs that

(i) a person can change sex/gender, (ii) that “impersonating” the opposite sex may be beneficial for a person’s welfare, or (iii) that society should accommodate/encourage such “impersonation”

were protected because "they are based on the claimant’s belief (a) in Genesis 1:27" and are "manifestations of that belief". The third of these listed disbeliefs directly concerns a matter of public policy, and I think most people would recognise it, in isolation, as a political view.


So the effect of recent rulings along these lines seems to be that if a company were to post a job advertisement which banned applicants who held a certain political view, then that company would be open to a successful challenge under the Equality Act 2010 by any prospective applicant who held that political view but could successfully show either that

  • For themselves it amounts to a philosophical belief, or
  • For themselves it is "based on" or "a manifestation of" a religious or philosophical belief.
5
  • Wouldn't most if not all non-religiously-influenced political views be considered "philosophical"?
    – Someone
    Commented Sep 3, 2023 at 20:23
  • @Someone No. For example, in McClintock v Department of Constitutional Affairs it was held that "to constitute a belief there must be a religious or philosophical viewpoint in which one actually believes; it is not enough "to have an opinion based on some real or perceived logic or based on information or lack of information available." " Essentially, if your belief is a conclusion based on reason or evidence, then it's not a philosophical belief. So it depends on why you believe it, not so much what the belief is.
    – kaya3
    Commented Sep 3, 2023 at 20:45
  • 1
    That said, the practical consequence for employers is similar ─ whatever political view they want to discriminate based on, there could be someone out there who believes or disbelieves in that political position for philosophical or religious reasons, and therefore they'd fall afoul of the law.
    – kaya3
    Commented Sep 3, 2023 at 20:53
  • Note that the example given directly contravenes the fifth criteria of the Grainger Test, which is the criteria used here. Commented Sep 5, 2023 at 14:36
  • @ComicSansStrikephim Well, I agree with you ─ if society forced trans people to live as their gender assigned at birth, I think that would be incompatible with human dignity ─ but the Employment Appeals Tribunal decided that it did satisfy Grainger (v) regardless.
    – kaya3
    Commented Sep 5, 2023 at 17:59
4

While the rest of the UK prohibits discrimination on grounds of "Religion or belief" as mentioned by kaya3, in Northern Ireland there are specific references at least in employment discrimination law to "religious belief or political opinion".

The relevant context which sets it apart is that Northern Ireland suffered an extended period of violence over which country it should be a part of. However "Political opinion is not limited only to Northern Ireland constitutional politics."

1

The BC Human Rights Code prohibits discrimination in employment advertisements, employment, and trade unions/associations because of "political belief."

0
1

Unfortunately I do not have enough reputation to add a comment, I just want to stress that the answer about Germany is wrong. While the constitution declares political opinion as protected in its third article, only state authority is bound to grant these rights to citizens; they do not directly affect contractual autonomy between citizens themselves.

The federal constitutional court has in fact ruled, that "No objective constitutional principle can be derived from Article 3 (1) of the Basic Law, even according to the principles of indirect third-party effect, according to which the legal relationships between private individuals must in principle be structured by them in a way that is consistent with equality. In principle, it is part of the freedom of every person to determine according to his or her own preferences with whom he or she wishes to conclude contracts and under what conditions." Translated with www.DeepL.com/Translator (free version) -> https://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/DE/2018/04/rs20180411_1bvr308009.html

The details in german law are, as mentioned in the other answer, quite nuanced; if you are interested, there is e.g. this case which handles exclusion based on political views: https://juris.bundesgerichtshof.de/cgi-bin/rechtsprechung/document.py?Gericht=bgh&Art=en&nr=59967&pos=0&anz=1

However, generally in Germany it is allowed for business owners to discriminate based on political views, mostly due to their domiciliary rights.

3
  • I have rejected your proposed edit on O.M.'s answer because "This edit deviates from the original intent of the post. Even edits that must make drastic changes should strive to preserve the goals of the post's owner." Depending on one's reputation then commenting, downvoting and offering an alternative answer are the ways show disagreement with an answer.
    – user35069
    Commented Sep 5, 2023 at 14:49
  • Fair enough. That's totally fine for me, however I find it weird that an answer which is just wrong is left without a disclaimer or anything. And it's a bit sad that I cannot add a comment, so people stumbling on that answer who do not scroll to the very bottom leave the site with a wrong answer in their head. Commented Sep 5, 2023 at 19:10
  • Do you have an example which does not involve the leader of a seditious party?
    – o.m.
    Commented Sep 12, 2023 at 7:39

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .