What You Should Know Regarding the Sixth Circuit Decision Involving "Policymaking" Employees
If you have attended any recent seminar sponsored by the Frost Brown Todd Government Services Practice Group, you know that we predicted that courts would adopt a three-part analysis for determining whether speech by public employees is protected under the First Amendment. This week, the Sixth Circuit decided Dixon v. University of Toledo, a First Amendment retaliation case. In that case, the Sixth Circuit adopted a three-part analysis for First Amendment claims by public employees.
In Dixon, a public university terminated an employee for an opinion article she wrote in a local newspaper. The plaintiff was the university's Associate Vice President for Human Resources. During non-work hours, the employee wrote an op-ed response to a newspaper editorial in which she compared the civil-rights movement with the gay-rights movement. Her op-ed response highlighted her disagreement with the article, arguing that race is biological while homosexuality is a choice. The university terminated her because "her comments d[id] not accord with the values of the University of Toledo." The Sixth Circuit found that the public employer could terminate the employee for her op-ed response because she served in a policymaking position.
WHAT YOU NEED TO KNOW:
The Sixth Circuit clarified how public employee First Amendment claims are analyzed. For employee speech to be protected by the First Amendment, the speech must satisfy each of the following requirements: (1) the speech must relate to a "matter of public concern"; (2) the employee's free speech interest must outweigh the public employer's legitimate interest; and (3) the speech must not be made pursuant to her official job duties.
Although the op-ed response addressed a matter of public concern, the Sixth Circuit held that, under the balancing test, there is a presumption in favor of the government employer if a "confidential or policymaking public employee is discharged on the basis of speech related to his political or policy views."
The employee's speech qualified for the presumption because (1) her position as Associate Vice President for Human Resources was a policymaking position as it required her to "provide leadership in recommending, implementing and overseeing human resource policies and procedures that support the university's strategic direction," and (2) the employee spoke on a policy or policy issue: the gay rights movement.
Central to this case was the fact that the employee's speech was in direct opposition to the university's diversity policies—the very policies she was required to create pursuant to her job duties and description. Accordingly, the public employer's interests outweighed the employee's free speech interests.
WHY THIS MATTERS:
The Dixon case is important for two reasons. First, it demonstrates more clearly how courts in the Sixth Circuit will analyze First Amendment claims, synthesizing the principles expressed in earlier cases. Second, the Sixth Circuit recognized a strong presumption that speech by confidential and policymaking employees is not protected to the extent the speech contradicts a public employer's established policies, especially if the employee is responsible for the implementation of those policies.
WHAT YOU NEED TO DO:
Public employers should have clearly written job descriptions for their employees. The Sixth Circuit relied heavily on the employee's job description when it determined whether her position qualified as a "policymaking or confidential" position. If an employer can show that an employee is a confidential or policymaking employee, it has greater latitude to take disciplinary action against that employee for the employee's speech related to any policy issues.
You should review your existing job descriptions to ensure they accurately reflect your employees' job duties, including whether the position is a confidential or policymaking position.