WASHINGTON, DC – DECEMBER 09: The U.S. Capitol Building is pictured on December 9, 2019 in … [+] Washington, DC. The House Judiciary Committee is conducting a hearing to formally receive evidence in the impeachment inquiry of President Donald Trump, whom Democrats say held back military aid for Ukraine while demanding they investigate his political rivals. The White House declared it would not participate in the hearing.(Photo by Zach Gibson/Getty Images)
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I’m no political expert, but I know a thing or two about employment law. As I’ve been watching the impeachment drama unfold in the news, I have no clue what will happen next.
But what I do know is that had this drama had been playing in corporate America instead of Washington, things would be going a lot differently for the president.
For example, following the revelation that the president pressured Ukraine to begin investigations that would benefit him politically, he attacked key witnesses called to testify before Congress on his personal and official White House Twitter accounts and in remarks to donors and the press.
Some of the targets of the attacks include former Ukraine ambassador Marie Yovanovitch, State Department staffer Jennifer Williams and National Security Council official Lt. Col. Alexander Vindman.
If these witnesses were employees of a publicly held company instead of public servants, these attacks would be seen as illegal employment retaliation.
What Is Employment Retaliation?
Technically speaking, employment retaliation is an adverse employment action in response to protected activity. In other words, an employer does something bad against an employee because the employee is doing something they’re legally allowed to do.
The classic example is a boss who demotes an employee for filing a sexual harassment complaint against him.
Its parallel in the impeachment inquiry would be witnesses testifying before Congress (a protected activity) with the president or a White House official lashing out at the witnesses (adverse employment action).
Common examples of workplace retaliation include:
- Firing
- Demotion
- Pay cut
- Discriminatory action
- Unsubstantiated negative performance evaluations
- Making threats to the employee
- Creation of a hostile work environment
Can the President Get Away With His Behavior if He Was a Business Leader?
And that’s just the tweets. There is a lot more evidence that the president’s actions following the whistleblower complaint would be seen form of illegal workplace retaliation if it happened in the private sector.
For instance, when the news broke about the whistleblower, Trump strongly implied that he believed the person who gave the whistleblower the information should be executed. If your boss suggested you should be killed isn’t a hostile work environment, then I don’t know what is. Even if Trump meant it as hyperbole, it would be illegal in any workplace.
Imagine an anonymous complaint being filed against the CEO of a company by an employee. And in this complaint, the employee accuses the CEO of discriminating against him because of his race in violation of Title VII of the Civil Rights Act of 1964.
Then once the CEO learns of the complaint, as well as the identity of who filed it and fellow employees who are going to cooperate in the investigation, the CEO fires off the following tweet:
“John Smith, I can’t believe you filed that complaint against me! And Jane Doe and Robert Brown, you are all liars, do you hear me?! Do you know what we used to do back in the day with liars when we were smarter? Let’s just say we used to handle things a little differently than we do now.”
If that happened, the company’s lawyers would be on the phone within minutes, telling the CEO to delete the tweet and publicly apologize in preparation for a retaliation claim.
And here’s the kicker. In the impeachment inquiry, one of the defenses of the president is that the president didn’t do anything wrong. In our parallel with the CEO of a company, that would mean that the discrimination claim turned out to be meritless. In that situation, the company still wouldn’t be off the hook. That’s because retaliation claims are separate from the underlying complaint.
So hypothetically speaking, if we were to apply how employment retaliation law works to the impeachment process, even if the president hadn’t committed an impeachable offense, he would still be liable for the threats made during the investigation.
Why the Impeachment Process Is Different
For one, it’s an impeachment and not an employment action. The impeachment process is inherently political in nature and the law is far less clear about how the process works, at least when compared to handling a workplace retaliation claim.
Second, some of the underlying laws are far less protective of whistleblowers in the intelligence setting as opposed to whistleblowers or reporters of improper conduct within the workplace or education setting.
And finally, we’re dealing with the sitting president of the United States. Whether we want to admit it or not, laws do not apply to the leader of the free world in the same way as they apply to the leader of a company.
In the end, whether he should be held to the same standards is up to Congress.