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AB 1825 Sex Harassment Trainer

A free resource for California employers about the sexual harassment training law (AB 1825).

Does it violate Title VII to sexually harass a communist?

Wednesday, June 02, 2010
I don't think so (at least not if they're party members).

Although the federal anti-discrimination law Title VII has been interpreted to prohibit sexual harassment as an "unlawful employment practice," the law also contains an express exclusion for Communist Party members. Subsection 2000e-2(f) says:

Members of Communist Party or Communist-action or Communist-front organizations:
As used in this subchapter, the phrase “unlawful employment practice” shall not be deemed to include any action or measure taken by an employer, labor organization, joint labor management committee, or employment agency with respect to an individual who is a member of the Communist Party of the United States....

This appears to exempt any violation of Title VII if it's taken "with respect" (gotta love that) "to ... a member of the Communist Party...."

Now I do not mean that Title VII simply permits discrimination based on the fact that someone is a communist (e.g., "I'm not hiring you because you're a commie"), but that it allows an employer to, for example, sexually harass or racially discriminate against a worker without liability if the worker is a party member.

In other words, Title VII permits an employer to say: "I'm not hiring you because you're a woman, and I may have grabbed your breast, and called you the 'n-word,' but you're a communist so you can't sue me." The fact that a worker is a communist means it's not a violation of Title VII to sexually harass, racially discriminate, ethnically insult, fail to religiously accommodate, or otherwise create a hostile work environment based on their (ordinarily) protected characteristics.

Perhaps unsurprisingly, I haven't seen much online discussion or note of this exception (other than the occasional reference to the text of the law). Likewise, I'm not aware of any case bumping a federal bias/harassment claim because the employee was a card-carrying communist.

(Plus, it's important to remember that California's Fair Employment and Housing Act does not contain a similar exemption. Additionally, harassing a communist may violate state Labor Code sections 1101-1102 as an attempt to coerce an employee's politics).

Even so (and while not wanting to excuse any harassment or discrimination because of the target's politics), Title VII's communist exemption is a potential defense to federal claims for employers who employ — and discriminate against or harass — fellow travelers.