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TO BE PUBLISHED IN THE OFFICIAL REPORTS
 

OFFICE OF THE ATTORNEY GENERAL
 

State of California
 

JOHN K. VAN DE KAMP
 

Attorney General
 

:
 

OPINION : No. 85-404
 

:
 

of : APRIL 30, 1986 

:
 

JOHN K. VAN DE KAMP :
 

Attorney General :
 

:
 

NELSON KEMPSKY :
 

Deputy Attorney General :
 

:
 

THE HONORABLE ART AGNOS, MEMBER OF THE CALIFORNIA 

STATE ASSEMBLY, has requested an opinion on the following question: 

Do Labor Code sections 1101 and 1102 prohibit a private employer from 

discriminating on the basis of homosexual orientation or affiliation? 

CONCLUSION 

Labor Code sections 1101 and 1102 prohibit a private employer from 

discriminating on the basis of homosexual orientation or affiliation. 

ANALYSIS 

For more than a decade, the homosexual community in California has 

strived by litigation and legislation for equality of treatment and equality of rights with 

the heterosexual community. The California Supreme Court has ruled that Labor Code 

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sections 1101 and 1102 protect employees who identify themselves as homosexual from 

reprisal by their employers. We are now asked whether those sections would be 

interpreted to prohibit a private employer from discriminating on the basis of homosexual 

orientation or affiliation. 

Section 1101 provides: 

"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." 

Section 1102 provides: 

"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." 

The prohibitions were originally enacted as a single section in 1915, and were recast by 

the Legislature in their present form in 1937.1 The courts have usually interpreted the 

statutes as being intended to defend employees engaged in traditional political activity 

from reprisal by their employer. For example, in Lockheed Aircraft Corp. v. Superior 

Court (1946) 28 Cal.2d 481, 485, the Supreme Court commented that the statute 

concerned activities related to or connected with the orderly conduct of government and 

the peaceful organization, regulation and administration of the government. The sections 

protect "the fundamental right of employees in general to engage in political activity 

without interference by employers." (Fort v. Civil Service Commission (1964) 61 Cal.2d 

331, 335.) 

The statutes were enacted by the Legislature pursuant to its power under 

Article XIV, section 1, of the California Constitution to provide for the general welfare of 

employees in order that there be suitable protection of health and safety, and so that peace 

and good order may be promoted through regulations designed to insure wholesome 

1 Stats. 1915, c. 38; Stats. 1937, c. 90. 

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conditions of work and freedom from oppression (Cal. Drive-in Restaurant Assn. v. 

Clark (1943) 22 Cal.2d 287, 296). 

The most difficult interpretive issue regarding the statutes is the definition 

of which types of political action and affiliations are protected by the legislative shield 

against arbitrary action by a private employer.2 In 1979, the California Supreme Court 

was confronted with this issue in the case of Gay Law Students Assn. v. Pacific Tel. & 

Tel. Co., 24 Cal.3d 458. In that lawsuit, four individuals and two associations asserted 

that the defendant company practiced discrimination against homosexuals in the hiring, 

firing and promotion of employees, and that the company's conduct violated, among 

other statutory provisions, Labor Code sections 1101 and 1102. 

The court first determined that the protection for "political activities" could 

not be narrowly confined to partisan activity on behalf of a political party. Reviewing 

decisions of the United States Supreme Court, it noted that participation in litigation, the 

wearing of symbolic armbands and the association with others for the advancement of 

beliefs and ideas had all been held to be political activities. (N.A.A.C.P. v. Button (1963) 

371 U.S. 415, 429; Tinker v. Des Moines School Dist. (1969) 393 U.S. 503; N.A.A.C.P. v. 

Alabama (1958) 357 U.S. 449.) 

Against this background of cases defining political activity in broad terms, 

the court concluded that the fight against discrimination on the basis of homosexuality 

was political in nature. It held (24 Cal.3d 458 at 488): 

"Measured by these standards, the struggle of the homosexual 

community for equal rights, particularly in the field of employment, must 

be recognized as a political activity. Indeed the subject of the rights of 

homosexuals incites heated political debate today, and the 'gay liberation 

movement' encourages its homosexual members to attempt to convince 

other members of society that homosexuals should be accorded the same 

fundamental rights as heterosexuals. The aims of the struggle for 

homosexual rights, and the tactics employed, bear a close analogy to the 

continuing struggle for civil rights waged by blacks, women, and other 

minorities." 

2 We concluded in 66 Ops.Cal.Atty.Gen. 486 (1983) that the federal and state constitutions 

compel the conclusion that a local public agency is barred from discrimination in its employment 

practices on the basis of sexual orientation. This opinion concerns whether employers in the 

private sector may engage in arbitrary discrimination. 

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While the nature of the plaintiffs' allegations invited the Supreme Court to 

make a broad ruling on the issue of whether homosexual orientation was entitled to 

protection as a political affiliation, the court limited its decision to a more narrow 

holding, sufficient to resolve the case before it even though it left other questions open to 

the future. After reviewing the assertion that the defendant discriminated against 

"manifest" homosexuals and against persons who make "an issue of their 

homosexuality," it construed the complaint as charging that the company (id.): 

". . . discriminates in particular against persons who identify 

themselves as homosexual, who defend homosexuality, or who are 

identified with activist homosexual organizations." 

Viewing the complaint in that light, the court held that the allegations stated 

a cause of action for violation of sections 1101 and 1102. 

The Supreme Court thus interpreted the statute as protecting those who 

identify themselves as homosexual, who defend homosexuality or who are identified with 

activist homosexual organizations. The court did not opine upon the rights of those who 

do not openly identify themselves as homosexual, and whether they are entitled to the 

same degree of protection against a policy which would subject them to discrimination on 

the basis of a belief as to their sexual orientation. 

Nevertheless, the court briefly discussed one aspect of the political 

aspiration of the homosexual community for equal rights (id.): 

"A principal barrier to homosexual equality is the common feeling 

that homosexuality is an affliction which the homosexual worker must 

conceal from his employer and his fellow workers. Consequently one 

important aspect of the struggle for equal rights is to induce homosexual 

individuals to 'come out of the closet,' acknowledge their sexual 

preferences, and to associate with others in working for equal rights." 

We are now asked the question left unanswered by the Supreme Court in 

Gay Law Students Assn.: Are employees with a homosexual orientation or affiliation 

protected in the same manner as those who identify themselves as homosexual, who 

defend homosexuality or who are identified with activist homosexual organizations? 

While the issue is not entirely free from doubt, we believe that if the California Supreme 

Court was directly confronted with the issue, it would rule that Labor Code sections 1101 

and 1102 protect employees from discrimination on the basis of undisclosed or suspected 

homosexual orientation in the same manner as they protect employees from 

discrimination on the basis of open homosexual identification. 

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Initially, we find it quite improbable that the Legislature could have 

intended that it would be permissible for an employer to discriminate against an 

employee on the basis of undeclared political beliefs, while at the same time the 

employer was prohibited from discriminating against an employee on the basis of openly 

expressed political views. 

It is obvious that the Legislature has barred, for example, the discharge3 of 

an employee who openly declares himself or herself to be affiliated with the Republican 

or Democratic Party by reason of that party association. We cannot imagine that the 

Legislature intended at the same time to grant permission to an employer to have a policy 

permitting discharge of employees on the basis of the employer's belief that an employee 

is a covert Republican or a secret Democrat. 

It appears instead to have been the Legislature's judgment that political 

activities are not within the purview of an employer's legitimate interests, and that 

political activities or affiliations, whether private or public, should not be tolerated as the 

basis for employment decisions. In the context of the question we have been asked and 

the California Supreme Court's conclusion that homosexual identification is a political 

activity, we conclude that the Legislature's protection for political activity extends to 

those who have not made a public issue of their orientation as well as those whose stand 

is openly proclaimed. 

This conclusion is consistent with the text of the relevant sections, which 

point with fair clarity in that direction. Section 1101 bars any employer from any policy 

"tending to control or direct the political activities or affiliations of employees." Section 

1102 bars any employer from attempting to coerce or influence any employee "to adopt 

or follow or refrain from adopting or following any particular course of line of political 

action or political activity." 

Returning to the analogy of employees with undisclosed affiliations with a 

political party, we can see that if an employer had a policy of discharging employees 

believed to be secretly associated with the Democratic Party, employees who were 

actually oriented in that direction would feel pressured to either declare themselves 

publicly as Democrats in order to secure the protection of Labor Code sections 1101 and 

1102 for their political affiliation, or to declare themselves as Republicans in order to 

3 While we use the example here of discharge from employment, the protection of the 

statutes is broader. Section 1102 prohibits an employer from threatening discharge or loss of 

employment for political action. Any denial, deprivation or diminution of employment status or 

benefits would constitute a loss. (See Gay Law Students Assn., supra, 24 Cal.3d at 487, n. 16.) 

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placate their employer. Those whose private orientation was toward the Republican 

Party would feel a similar compulsion to convince their employer of their orientation. 

In either case, the policy of the employer would coerce all employees to 

make a declaration of orientation one way or the other in order to secure the protection of 

the Labor Code. The effect of the policy would be to force the company's employees into 

particular courses of political activity, irrespective of any preference to keep their 

orientation a private matter. 

Remembering that the Supreme Court has defined open self-identification 

of homosexuality as a political act, we conclude that if an employer had a policy of 

discharging employees because the employer held a belief that the employee's personal 

sexual orientation was homosexual, that policy would tend to control or direct the 

political activities or affiliations of that employee and others as well. 

We also believe that the Supreme Court has presaged the decision it would 

render if presented with the question we discuss here. The court noted that an important 

aspect of the struggle for equal rights is to encourage homosexual individuals to 

acknowledge their sexual preferences. Interpreting the provisions of the Labor Code to 

permit employers to have a policy of discharging employees on the basis of the 

employer's beliefs concerning the sexual orientation of its employees would have a 

marked chilling effect upon the willingness of those employees to take the political action 

of declaring their sexual orientation. If such an employment policy impacted the political 

choices of a company's employees -- and it seems a certainty that such a policy would 

have a substantial tendency to do so -- it would violate the letter and the spirit of the two 

Labor Code sections we have been discussing. 

We conclude the Supreme Court would determine that the logic of the 

views it expressed in Gay Law Students Assn. leads inexorably to the conclusion that 

declarations and activities surrounding an employee's sexual orientation are matters of 

legitimate concern to the employee only, and that the Legislature has prohibited 

employers from adopting policies which would impact those choices. 

Since the Legislature has banned discrimination against employees on the 

basis of their political views, activities and affiliations, and since the Supreme Court has 

defined self-identification of homosexual orientation as protected political action, the 

Supreme Court would also rule that a policy of discrimination against employees on the 

basis of beliefs as to their homosexual orientation is also prohibited by that legislation. 

***** 

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