Wednesday, November 16, 2011

Public Criticism of Discrimination Claim as Retaliation

Volokh Conspiracy has a great post: Publicly Criticize Discrimination Lawsuit Against You — Risk a Retaliation Lawsuit Based on Your Speech about an interesting retaliation claim. The case is Booth v. Pasco County (M.D. Fla. Oct. 28, 2011).

The facts are complicated and involve numerous claims of discrimination, harassment, and retaliation. One interesting component, is a retaliation claim brought by two union members against their union. The employees claimed the union discriminated against them by not assisting them with their claims.

Here's where it gets interesting! The union issued an "Update on Legal Issues" which stated:
Local 4420 members Jerry Brown and Anthony Booth have filed a Charge claiming unspecified discrimination with the U.S. Equal Employment Opportunity Commission against the Union and the County. The Executive Board and our attorney feel it is a frivolous claim with no grounds for support and we are extremely confident in winning but will still have to defend the charges. This could be very costly and generate a legal bill of $10,000 or more. If it becomes too costly the Union may have to assess its member’s additional fees to offset the cost. We will update you as it progresses.
The employees now claim this is retaliation, and turned them into "social pariahs." The Court is letting the issue go to trial.

Prof. Volokh disagrees, and thinks the speech is protected by the First Amendment and the Court's decision is "quite wrong." He also highlighted some union-specific issues under the circumstances:
Unions are self-governing institutions, funded by members and answerable to their members. If union leadership is accused of discrimination, union members need to know the leadership’s reaction, so they can decide whether they should remove the leadership. If the union is having to spend money, which comes from union members, the members deserve to know that. And if fellow union members are working against the interest of the union, union members likewise deserve to know that.
The Court did not see a First Amendment problem. It didn't spend much time on the issue, but did note that:
"[T]he eradication of workplace a compelling governmental interest," [and] prohibiting discriminatory workplace speech does not present Constitutional problems.
I'd like to see some more detailed analysis of this issue. Maybe we'll see an appeal...

Image: Public Domain image of the Bill of Rights from the National Archives.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.