Discrimination Against Haters Is A Crime In California

Berkeley law prof Steven Davidoff Solomon wrote an op-ed in the Wall Street Journal warning prospective legal employers not to hire “some” of his students if they “don’t want to hire people who advocate hate and practice discrimination.”

If a student endorses hate, dehumanization or anti-Semitism, don’t hire him…. If you are a legal employer, when you interview students from Berkeley, Harvard, NYU or any other law school this year, ask them what organizations they belong to. Ask if they support discriminatory bylaws or other acts and resolutions blaming Jews and Israelis for the Hamas massacre. If a student endorses hatred, it isn’t only your right but your duty not to hire him. Do you want your clients represented by someone who condones these monstrous crimes?

As Solomon notes, anti-Semitism is nothing new on campus, and has become one of the “approved” hatreds among the self-righteous. It’s not that this wasn’t well known before, but blaming Israel for Hamas’ need to rape and murder crossed a line. While Winston & Strawn loudly rescinded its offer of employment to NYU Student Bar president Ryna Workman, Davis Polk more subtly did the same for others.

Top U.S. law firm Davis Polk announced in an internal email that it had rescinded letters of employment for three law students at Harvard and Columbia universities who signed on to organizational statements about Israel, one of the latest responses to open letters from university groups about the Israel-Hamas conflict that have roiled university donors, employers, alumni and students.

As fashionable as Jew-hating may be on campus, it’s not as trendy in law firms, where the excuses that play well among the unduly passionate kids do not suffice with grown ups or the knowledgeable and rational.

Fair enough? Not so fast, says Eugene Volokh.

In California, the state where likely about half of Berkeley Law graduates work (see below), it may well be a crime (as well as being civilly actionable) to refuse to hire people based on their political views about Israel. Many other states, counties, and cities have similar rules (see this article for a list). Here are the relevant statutory provisions, from the California Labor Code (dating back to 1937):

1101. No employer shall make, adopt, or enforce any rule, regulation, or policy:
(a) Forbidding or preventing employees from engaging or participating in politics or from becoming candidates for public office.
(b) Controlling or directing, or tending to control or direct the political activities or affiliations of employees.

1102. No employer shall coerce or influence or attempt to coerce or influence his employees through or by means of threat of discharge or loss of employment to adopt or follow or refrain from adopting or following any particular course or line of political action or political activity.

1103. An employer or any other person or entity that violates this chapter is guilty of a misdemeanor…

Before you ask, sure, that would seem to mean that if an employee (and applicant for employment as well as stated in a footnote in Gay Law Students Ass’n v. Pacific Tel. & Tel. Co.) decided to be loud and proud about his Nazi views, it would be a misdemeanor for his employer to can the dude. No doubt this wasn’t what the California legislature had in mind in 1937 (or maybe they did given what was happening in 1937), but the law is on the books and says what it says.

Speech “blaming Jews and Israelis for the Hamas massacre” or advocating “excluding Jews from their homeland” is certainly espousal of a cause. (Of course, pro-Israel speech and speech opposing an independent homeland for Palestinians would equally be espousal of a cause protected by the statute.) Likewise, belonging to organizations that espouse this cause would be protected political activity as well, as would supporting those organizations’ policies of excluding pro-Israel speakers.

Eugene doesn’t raise this problem out of support for the students being canned for their offensive if infantile views, but rather because these state laws exist in stark conflict with what most of us understand to be the right of an employer to choose not to hire (or to rescind an offer to hire) law students who have that elite combination of identity hatred and woke fanaticism, where a group in the “oppressed” column can’t do wrong, even when its rape and murder, as long as they do it to a group they hate.

Yet unfortunately many employers, employees, law professors, lawyers, and others seem to be unaware that the laws even exist. My goal with this post, and in my past work on the subject, is to alert people that they have to consider this reality, whether they like it or not.

While the California law goes back to ’37, many new expansive anti-discrimination laws have been enacted on state and local levels that either criminalize, create a civil cause of action, or both, that constrain an employer from taking action upon learning that the nice, smiling job applicant in the well-pressed suit with an impressive GPA and top-notch resume also happens to believe that raping and murdering Jews is totally cool, and feels so strongly about the issue that he made his position clear publicly for all future colleagues and clients to see.

When these laws were passed, no doubt their supporters were certain they would be use by the marginalized and oppressed, and their allies, to fight for their right to speak truth to power. And perhaps that’s exactly what’s happening, except that power and truth have changed places.

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