Thursday, October 8, 2015

Free Speech in the Workplace is Gaining Judicial Protection



Recent court decisions evidence the judiciary’s ongoing evolution of affording employees protection from retaliation for exercising their right to free speech. As with most evolutions, though, there is present an ebb and flow of protections, with the flow slowly outreaching the ebb, and ultimately producing vital and necessary protections to employees exercising their right to free speech.

On October 5, 2015, in Trusz v. UBS Realty Investors, LLC, No. 19323 (to be officially released in the Connecticut Law Journal on October 13, 2015), the Connecticut Supreme Court gave meaningful expansion of free speech rights to both public- and private-sector employees. The plaintiff in Trusz, who was the head of UBS Realty’s valuation unit, made disclosures to UBS Realty management, opposing what he believed was unlawful activity with regard to UBS Realty’s valuation of properties held in various investment funds. Id. at 5. In response to the plaintiff’s disclosures, UBS Realty had an investigation conducted by its own compliance officer and by a third-party auditor, both of whom confirmed that valuation errors had been made, but concluded that the errors were not significant enough to warrant informing UBS Realty’s investors. Less than one month later, UBS Realty terminated the plaintiff. Id. Trusz then sued in federal court, claiming that UBS Realty’s actions violated Connecticut General Statute § 31-51q, which provides that, “[a]ny employer, including the state and any instrumentality or political subdivision thereof, who subjects any employee to discipline or discharge on account of the exercise by such employee of rights guaranteed by the first amendment to the United States Constitution or section 3, 4 or 14 of article first of the Constitution of the state, provided such activity does not substantially or materially interfere with the employee’s bona fide job performance or the working relationship between the employee and the employer, shall be liable to such employee for damages caused by such discipline or discharge, including punitive damages….” Id. at 6, 25. Conn. Gen. Stat. § 31-51q.

UBS Realty contended that Connecticut General Statute § 31-51q did not apply because the plaintiff’s workplace speech did not relate to matters of public concern, and was therefore not protected speech under Garcetti v. Ceballos, 547 U.S. 410 (2006), Pickering v. Board of Education, 391 U.S. 563 (1968), or Connick v. Meyers, 461 U.S. 138 (1983). Trusz at 6. In Garcetti, the Supreme Court held that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline. Garcetti, 547 U.S. at 421. In Pickering, the Court held that “in evaluating the constitutionality of government restrictions on an employee’s speech, a court must arrive at a balance between the interests of the employee, as a citizen, in commenting upon matters of public concern and the interest of the state, as an employer, in promoting the efficiency of the public service it performs.” Pickering, 391 U.S. at 568. Lastly, in Connick, the Court slightly modified the general balancing test articulated in Pickering, holding that if a government employee’s speech could not be fairly characterized as constituting speech on a matter of public concern, it was unnecessary to scrutinize the reasons for his or her discharge. Connick, 461 U.S. at 150. “Thus, under the Pickering/Connick balancing test, employee speech in a public workplace is protected from employer discipline if it involves a matter of public concern and if the employee’s interest in commenting on the matter outweighs the employer’s interest in promoting the efficient performance of public services.” Trusz at 7.

The District Court in Trusz certified to the Connecticut Supreme Court the question of whether Garcetti or the Pickering/Connick balancing test should be applied to determine the scope of protection afforded to public employees by the free speech provisions of the Connecticut Constitution and the scope of protection afforded to private employees by Connecticut General Statute Section 31-51q. Trusz at 4. In answering this question, the Connecticut Supreme Court found that the balancing test articulated in Pickering and Connick “would minimize unilateral governmental interference with employee speech that is compatible with the legitimate interests of employers more effectively than the rigid Garcetti rule, which categorically denies constitutional protection to any speech by an employee in his or her official capacity, regardless of whether the speech unduly burdens the employer.” Id. at 13-14. The Trusz Court explained that “Garcetti reduced the likelihood that public employees would speak to their employers regarding corrupt practices, threats to the public safety or other illegal or dangerous workplace practices.” Id. at 19. Additionally, the Court reasoned, the “Garcetti standard does not comport with the free speech provisions of the state constitution,” which provides that, “[e]very citizen may freely speak, write and publish his sentiments on all subjects….” Article first, § 4, Connecticut Constitution. Id. at 11, 22. Instead, the Trusz Court held that Justice Souter’s modified Pickering/Connick test (as articulated in his dissenting opinion in Garcetti) provided the proper test for determining the scope of a public employee’s rights under the free speech provisions of the Connecticut Constitution. Trusz at 22. Under Justice Souter’s modified Pickering/Connick test, an employee speaking pursuant to his or her official duties on matters involving “official dishonesty, deliberately unconstitutional action, other serious wrongdoing, or threats to health and safety” is protected by the First Amendment. Id. The Trusz Court concluded that the modified Pickering/Connick balancing test also applies to Connecticut General Statute § 31-51q, id. at 25, because “one purpose of the statute was to protect employees from retribution for speaking about dangerous or illegal workplace conditions.” Id. at 24.






While the Connecticut Supreme Court’s decision in Trusz expands free-speech protections to both public- and private-sector employees, it must be emphasized that this protection is nonetheless relatively narrow. Only speech that involves disclosures of or opposition to “official dishonesty, deliberately unconstitutional action, other serious wrongdoing, or threats to health and safety” is protected. Fortunately, though, Title VII affords broader protection against retaliation for employees brave enough to oppose their employer’s discriminatory practices. And the Fourth Circuit, in DeMasters v. Carilion Clinic, 796 F.3d 409 (4th Cir. 2015), rejected the so-called “Manager’s Rule,” which excluded managers who had a duty to report discrimination from protection against retaliation under Title VII.

In DeMasters, the plaintiff worked as a consultant for Carilion’s Employee Assistance Program. In that capacity, he had provided assistance to an employee who informed him that he was being sexually harassed. DeMasters generated a plan with the employee to report the harassment and to galvanize Carilion’s internal investigation, relayed the employee’s harassment and subsequent increased hostile treatment to Human Resources, and voiced his opinion that HR was not adequately responding to the employee’s reports of harassment. Id. at 413-14. In response, Carilion’s managers interrogated DeMasters, questioning him as to why he “had not taken ‘the pro-employer side,’ and if he understood the magnitude of the liability the company could face if one of its supervisors had engaged in harassment… The managers also told DeMasters that he had not protected Carilion’s interests and that he had left Carilion ‘in a compromised position.’… The EAP department director likewise accused DeMasters of ‘fail[ing] to protect Carilion’ and ‘plac[ing] the entire operation at risk.’” Id. at 414 (brackets in original) (internal citations omitted). DeMasters was terminated just two days after this meeting. In his termination letter, Carilion stated that DeMasters “‘fail[ed] to perform or act in a manner that is consistent with the best interests of Carilion Clinic.’” Id. at 414-15 (brackets in original) (citation omitted).

In his lawsuit, DeMasters claimed that Carilion terminated his employment in violation of Title VII’s opposition clause, which forbids retaliation against an employee who opposes “‘any practice made an unlawful employment practice.’” DeMasters, 796 F.3d at 416 (quoting 42 U.S.C. § 2000e-3(a)). The Fourth Circuit, as well as other Courts of Appeals, has adopted an expansive view of what constitutes oppositional conduct, recognizing that it includes “‘voicing one’s opinions in order to bring attention to an employer’s discriminatory activities,’ Laughlin v. Metro. Wash. Airports Auth., 149 F.3d 253, 259 (4th Cir. 1998),” and “‘complain[ing] about unlawful practices to a manager, the union, or other employees.’” Id. at 417 (quoting Barrett v. Whirlpool Corp., 556 F.3d 502, 516 (6th Cir. 2009)) (brackets in original). The Fourth Circuit reversed the District Court’s finding that the “Manager Rule” applied to DeMasters and rendered him ineligible to qualify for protection under Title VII because as an EAP consultant, “he had a duty to counsel Doe and to relay his complaints to Carilion’s HR department.” Id. at 422. Under the “Manager Rule,” an employee is required to “‘step outside his or her role of representing the company’ in order to engage in protected activity.” Id. at 421 (quotations omitted). Rather, the Fourth Circuit reasoned, “[n]othing in the language of Title VII indicates that the statutory protection accorded an employee’s oppositional conduct turns on the employee’s job description or that Congress intended to excise a large category of workers from its anti-retaliation provisions.” DeMasters, 796 F.3d at 422. Moreover, “[a]pplying the ‘manager rule’ in the Title VII context would discourage these very employees from voicing concerns about workplace discrimination and put in motion a downward spiral of Title VII enforcement.” Id. at 423.

If DeMasters had been decided instead in Connecticut under the principles announced in Trusz, it seems that the result would not have been favorable to DeMasters. In Connecticut, speech is protected in the workplace only insofar as it does not “substantially or materially interfere with the employee’s bona fide job performance or the working relationship between the employee and the employer.” Conn. Gen. Stat. § 31-51q. Under that standard, DeMasters’ speech undoubtedly would not have been protected, because, as Carilion pointed out in its termination letter, DeMasters failed to act in a manner that was consistent with the best interests of Carilion Clinic, in that he had failed to “‘take the pro-employer side.’” DeMasters, 796 F.3d at 414. Fortunately for DeMasters, Title VII and the Fourth Circuit afforded him vital and necessary protection for his oppositional conduct in protecting another employee.

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