21.1 EMPLOYMENT DISCRIMINATION GENERALLY
21.101 Introduction. Although the statutes, procedures, and regulations governing public employees may differ from those concerning private sector employees, public employees are afforded the same general protections against discrimination in employment as their private sector counterparts.
21.102 First Amendment Free Speech Protection.
A. Scope of Protection.
1. In General. The state cannot condition public employment on a basis that infringes upon an employee's constitutionally protected interest in freedom of expression. 1 In Connick v. Myers, 2 the United States Supreme Court established the test for determining whether speech by a public employee may serve as a basis for disciplining or discharging the employee. To be protected, the speech must be about a matter of public concern, and the employee's interest in expressing himself or herself on that matter must not be outweighed by any injury the speech could cause to "the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." 3
Thus, a public employee may not be disciplined or discharged for the expression of ideas involving matters of legitimate public concern, unless the public employer's "interest in the effective and efficient fulfillment of its
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responsibilities to the public" outweighs the employee's interest in the free expression of the ideas. 4
When public employees make statements pursuant to their official duties, they are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline. 5 The controlling factor is whether an employee's expressions were made pursuant to his or her official duties. That consideration distinguishes such a case from those in which the First Amendment provides protection against discipline. 6
2. Matter of Public Concern. Whether a particular expression involves a matter of legitimate public concern is a question of law, 7 and must be determined by "the content, form, and context of a given statement, as revealed by the whole record." 8 While in Connick the Court did not specify the relative weight to be accorded to these factors, the Fourth Circuit has held that content and subject matter are "always the central aspect." 9 The focus is on whether the particular expression is truly of concern or interest to the general public rather than a private matter between the employee and the employer. 10
Courts have found that the following issues constitute matters of public concern: 11
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| 1. | A court administrator's refusal to limit training seminar attendees to those who worked on a judge's reelection campaign; 12 | ||
| 2. | A chairman of an orthopedic surgery department's opposition to the CEO's merger proposal; 13 | ||
| 3. | A teacher's statements that many faculty members believed the principal was not following school improvement plans and should be replaced; 14 | ||
| 4. | A state lottery chief's refusal to endorse a newly established lotto system; 15 | ||
| 5. | Employees acting as consultants or expert witnesses on behalf of parties opposing the state; 16 | ||
| 6. | A property manager's written complaints to the housing authority about alleged orders to discriminate against potential tenants; 17 | ||
| 7. | A public works employee's statements to the city board and federal law enforcement officials concerning a contract to repair a landfill; 18 | ||
| 8. | Complaints about a program director's allegedly illegal conduct; 19 |
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| 9. | Complaints about mismanagement, sex discrimination, hostile work environment, and contamination of criminal histories; 20 | ||
| 10. | Statements to management concerning an employee's belief that exculpatory evidence existed and was being withheld and the refusal to sign a report the employee believed to be false; 21 | ||
| 11. | A prison warden's speech against corruption and lack of security in a maximum security prison; 22 | ||
| 12. | A good faith protest of racial discrimination in a department's implementation of a community policing program; 23 | ||
| 13. | A report and testimony concerning the intentional segregation of schools; 24 | ||
| 14. | A police chief's newspaper advertisement stating that candidates for city council were convicted felons, and the placement of a sign in a yard expressing an opinion on the upcoming vote; 25 | ||
| 15. | A probation officer's statement to a state agency that juveniles' rights were being violated; 26 | ||
| 16. | Criticism of defendants for mismanagement, corruption, and unethical behavior; 27 |
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| 17. | Police officers' complaints to internal officials and media concerning the way a department handles leads; 28 | ||
| 18. | Complaints of sexual harassment; 29 and | ||
| 19. | "Liking" a political candidate's campaign page. 30 | ||
| 20. | A police officer detailing in a speech that the chief of police "embezzled funds, had a drinking problem, and masqueraded as a certified officer with powers . . . even though he was only an administrative chief without the authority to do so." 31 | ||
| 21. | Sworn testimony in judicial proceedings about corruption in a public program and misuse of state funds. 32 | ||
| 22. | An assistant district attorney's speech disagreeing with how the district attorney's office should be running its defensive driving course. 33 |
Personal grievances or statements made out of anger or frustration are generally not protected by the First Amendment. 34 The public employee has the burden of establishing that the speech at issue involved a
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matter of legitimate public concern. 35 It does not matter whether the expression occurred in a public forum or in a private conversation with the employer. 36
3. Employer's Interest in Effective and Efficient Fulfillment of Its Duties. Whether the employee's interest in the expression of ideas is outweighed by the employer's interest in the effective and efficient fulfillment of its duties to the public is also a question of law. 37 A public employer has the burden of showing that this balance tips in its favor. 38
When an employer demotes an employee out of a desire to prevent the employee from engaging in protected expressing of ideas, the employee is entitled to challenge that unlawful action under the First Amendment and section 1983 even if the employer's actions are based on a factual mistake about the employee's behavior. 39
Factors to be considered in balancing individual and governmental interests include assessing whether the employee's statements (i) impair harmony among coworkers; (ii) impair discipline by superiors; (iii) have a detrimental impact on close working relationships due to injury to personal loyalty and confidence; (iv) interfere with the operation of the enterprise; or (v) impede the performance of the employee's duties. 40
"[A] public employee who has a confidential, policymaking, or public contact role and speaks out in a manner that interferes with or undermines the operation of the agency, its mission, or its public confidence enjoys substantially less First Amendment protection than does a lower level employee." 41
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Actual disruption of governmental relations or operations is not required, 42 but action taken in response to a mere potential for disruption must be objectively justifiable under the circumstances of the situation. 43
B. Mixed Motive Cases. After it is determined that a public employee's expression was protected, the next question is whether the particular expression was a substantial or motivating factor in the alleged adverse employment decision. 44 An employer may still avoid liability by proving that the discharge would have occurred in any event for reasons unrelated to the employee's exercise of protected First Amendment rights. 45 The employer has the burden of proving this defense. 46
When multiple reasons are offered for a public employee's discharge, the trier of fact must consider the evidence and determine which reasons actually motivated the employee's discharge. 47 After the trier of fact has determined the actual reason for the public employee's discharge, the court must then determine as a matter of law whether a constitutional violation has been established. 48
C. Qualified Immunity for Public Officials. Public officials who violate the constitutional rights of others enjoy qualified immunity from liability for civil damages if their conduct satisfies an "objective reasonableness" standard, which means that their conduct does not violate "clearly established statutory or constitutional rights of which a reasonable person would have known." 49
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In analyzing whether qualified immunity exists, a court determines whether the currently applicable law was clearly established at the time the public official's actions occurred. If the law was not clearly established, the public official will not be held liable in an individual capacity because he or she could not reasonably be expected to anticipate subsequent legal developments or to know that the law prohibited his or her conduct. 50
A court may also consider the facts and information possessed by the public official at the time the action occurred to determine whether, on those facts, a reasonable person would have known that there was a clearly established constitutional or statutory violation. 51 It is irrelevant that public officials may be wrong in their belief that their actions do not violate an employee's rights; rather, the officials' decision must be reasonable. 52
Qualified immunity must be pled as an affirmative defense. 53 The burden of establishing that a particular right was clearly violated rests on the employee suing the public...
