Friday, December 21, 2012

University HR's Speech on Homosexuality Not Protected - COTW #123

Public employees have free speech rights that protect them from workplace retaliation. However, their rights are very limited as demonstrated by this Case of the Week: Dixon v. University of Toledo (6th Cir.).

The employee was the Associate Vice President of Human Resources at the University of Toledo. She had significant authority and discretion in the area of policy-making and benefits administration.

One day, the editor-in-chief of a Toledo newspaper authored an op-ed comparing the struggle for homosexuals to obtain equal benefits for their same-sex partners at the university to the civil rights struggles of African-Americans and individuals with disabilities. The HR VP authored a response that was published in the paper, including:
As a Black woman who happens to be an alumnus of the University of Toledo’s Graduate School, an employee and business owner, I take great umbrage at the notion that those choosing the homosexual lifestyle are “civil rights victims.” Here’s why. I cannot wake up tomorrow and not be a Black woman. I am genetically and biologically a Black woman and very pleased to be so as my Creator intended. Daily, thousands of homosexuals make a life decision to leave the gay lifestyle evidenced by the growing population of PFOX (Parents and Friends of Ex Gays) and Exodus International just to name a few. . . .
Well, this is a Case of the Week, so you probably know what happened next . . . she was terminated.

On its face, this seems like a decent First Amendment claim. Was she speaking as a private citizen? She didn't identify her position, and writing the op-ed was not part of her official duties. Was it a matter of public concern? Obviously - I mean the paper published her op-ed, and it was in response to previous newspaper coverage of the issue.

So, what's wrong? Well, courts balance the individual's free speech interests against the government's interest as an employer. The Sixth Circuit applies a presumption that the government interest outweighs the individual's interest where the employee "was a policymaker who engaged in speech on a policy issue related to her position." In this case, the employee was a "policymaker" and her speech related to the HR issues she oversaw. Summary judgment for the employer.

HT: Heather Bussing via email.

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