Employee Asked to Choose Between Running for Office and Keeping His Job Could Sue

​A bank employee running for a New York State Assembly seat who was asked to choose between running for office and continuing his employment with the bank could proceed with his lawsuit under New York law, a federal appeals court ruled.

The New York statute in question makes it unlawful for an employer to discharge or discriminate against an employee for engaging in specified political activities outside of work hours. Protected activities expressly include "running for public office." The lower court dismissed the action before trial. The court concluded that because the employee resigned from his position to continue his run for office, he was not subjected to an adverse employment action. Therefore, his lawsuit could not succeed. The employee appealed.

Candidates elected to the New York State Legislature serve as part-time legislators during the legislative session, which lasts from January to June, in Albany, N.Y. After the bank learned that the employee was running for office, he met with his supervisor and the bank's vice president of human resources. They both expressed concerns, not about the time the employee would spend campaigning, but about the time he would spend discharging the duties of an assemblymember.

The bank had internal policies and procedures concerning outside employment opportunities for its workers. Outside employment was permitted only if it was approved in advance by the company's board of directors. In deciding whether to approve the employment request, the board considered, among other factors, whether the outside employment would interfere with work assignments or performance.

The bank construed the employee's notification of his candidacy as a request for approval for outside employment. His supervisor, the HR vice president and the bank's CEO reviewed his submission and determined that he would be unable to work as an assemblymember while working for the bank as a mortgage lending officer. They were concerned that if the employee were elected, he would have to be in Albany two to four business days per week during the six-month legislative session, while he had only 21 days of paid time off per year. In addition, residential lenders like the employee often worked more than 50 hours per week. The bank concluded that the employee could not devote sufficient hours to his bank position if he were elected as an assemblymember.

The officials did not consider whether his campaign, as opposed to his holding office, would interfere with his ability to do his job.  

The employee was told that he needed to decide whether he was going to run and to let the bank know. The employee told the bank that he planned to continue with his campaign and resigned from his job. He did not win the election.

He filed a lawsuit against the bank, alleging that he had been discharged in violation of New York law. The lower court dismissed the action before trial, ruling that the employee had voluntarily resigned.

Employee Entitled to Go to Trial

On appeal, the employee argued that the bank unlawfully forced him to decide between termination or his protected political activity and that, as a result, his departure from the bank was involuntary. The bank claimed that the employee chose to resign and therefore did not suffer an adverse employment action. The bank also argued that, even assuming that the employee had experienced such an adverse action, its reason for denying his request was legitimate, nondiscriminatory and not pretextual.

The court rejected both of the bank's claims.

The lower court had concluded that the employee was not discharged because he voluntarily resigned after his request to engage in outside employment was denied. This was an error, the appeals court said, because a reasonable jury could find that the bank discriminated against the employee when it forced upon him an impermissible choice between keeping his job or engaging in statutorily protected political activity. Courts have held that offering this type of impermissible choice can constitute a discriminatory adverse employment action, the appeals court noted.

Second, the appeals court rejected the bank's claim that it had demonstrated a legitimate, nondiscriminatory reason for the adverse employment action. The district court erred, the appeals court said, because it conflated evidence concerning the possibility the employee might serve as an assemblymember with evidence concerning his campaign for the assembly.

The distinction is relevant, the appeals court said, because New York law specifically protects employees running for political office from discrimination. Even assuming the bank might have had a legally permissible reason to bar the employee from serving as an assemblymember while employed at the bank, terminating his employment if he won election would not have required the bank to bar him from campaigning for office.

A reasonable jury could find that the bank failed to demonstrate a legitimate, nondiscriminatory reason for the adverse employment action it took against the employee, the appeals court said, ruling that the employee could go forward with his lawsuit. 

Truitt v. Salisbury Bank and Trust Co., 2nd Cir., No. 21-cv-1002 (Oct. 27, 2022).

Joanne Deschenaux, J.D., is a freelance writer in Annapolis, Md.