Working Together

An employee’s speech in the workplace may be disruptive to the day-to-day running of your company or worse, downright offensive and “bad for business.”  This blog post will discuss when an employer is free to discipline an employee for their speech and when they can not because some speech begets legal protection while other speech does not.

The U.S. Supreme Court’s 2006 decision in Garcetti v. Ceballos, 547 U.S. 410 (2006) significantly restrained public employees’ speech in the workplace.  The Garcetti Court held that a public employee’s speech is only protected under the First Amendment of the U.S. Constitution if he or she is speaking as a “citizen on a matter of public concern.”  Speech as an employee pursuant to one’s job duties or pertaining to an individual employment matter is not protected.  In other words, a public employer is well within its rights to discipline or terminate an employee on account of statements made in the workplace that are not “on a matter of public concern.”

So, what is speech that is a “matter of public concern” versus speech pursuant to one’s job duties?  Since Garcetti, we have learned that complaints about workplace conditions, the unlawful conduct of co-workers, and grievances about individual employment matters are not “matter[s] of public concern.”  By and large, what constitutes a “matter of public concern” is an open question with guidance from the courts trickling in with each decision.

One decision of note recently handed down by the Second Circuit Court of Appeals is Spencer v. City of New York, – F.3d – (2013), in which the Second Circuit affirmed a jury verdict against the New York City Department of Education for retaliation in violation of the First Amendment.

Spencer was a seventh-grade permanent substitute teacher.  She complained to the school’s assistant principal and principal about a male student’s persistent sexual harassment of her and abusive behavior towards other students.  She also filed a grievance with her union about the administration’s lax response to her complaint and student discipline generally.  Still dissatisfied and fearful of her safety and the safety of her students, Spencer filed a police report with the New York Police Department.  Shortly after the school’s administration learned of Spencer’s filing of a police report, they subjected her to increased scrutiny through unannounced observations, which culminated in an unsatisfactory evaluation and the non-renewal of her contract.  After a trial, the jury returned a verdict in favor of Spencer in the amount of $25,000, equivalent to one year of lost pay.

Upon motion by the Department to set aside the verdict, the New York District Court held that Spencer’s complaints to the school’s administration and her union was in furtherance of her job responsibilities as a teacher and thus did not constitute protected speech.  However, the Court found that her complaint to the NYPD was protected because it was outside of her official duties.  The Court held that “sexual harassment and sexual abuse in schools, and the extent to which school administrators maintain a safe environment for teachers and students” is a matter of  “political and social concern to the community.”

The Second Circuit affirmed the jury’s verdict, giving particular weight to Spencer’s motivations; the fact that she spoke out of her concern for the safety of her students and not for self-interested reasons.

Spencer is a cautionary tale for public and private employers alike.  Speech in the workplace or growing out of conduct in the workplace is an evolving area of the law and can be a trap for employers if they are not cautious.  Speech can take many forms including, an internal complaint, complaint with the CHRO, EEOC, or other agency, a lawsuit, or as was the case in Spencer, a police report.  Speech can also be informal.  Employers should keep First Amendment concerns in mind when they are investigating and/or defending an employee complaint because any adverse action taken against the employee on the heels of the complaint may give rise to a claim of retaliation under Conn. Gen. Stat. § 31-51q and the U.S. Constitution.