In a decision that may be particularly timely in this heated election season, the United States Supreme Court recently considered the issue of whether an employee who was demoted because the employer mistakenly believed he participated in political activity can file a lawsuit against the employer under 42 U.S.C. § 1983 for deprivation of his First Amendment rights under the U.S. Constitution. The facts of this case took place right here in our region in Paterson, New Jersey.

In Heffernan v. City of Paterson, 136 S.Ct. 1412 (2016), a police officer went to a political campaign site to pick up a lawn sign for a mayoral candidate, who was a friend of his, on behalf of his bedridden mother. The police officer had no involvement in the candidate’s campaign. The officer’s supervisor and the chief of police had been appointed by the candidate’s opponent, the incumbent mayor. His fellow officers spotted the officer at the campaign site, and word got back to his supervisors about it. The officer was demoted the very next day for his “over involvement” in the campaign of the mayoral candidate.

The officer filed a lawsuit under 42 U.S.C. § 1983 (which provides a cause of action for violations of constitutional rights) alleging that he was unlawfully demoted “because he had engaged in conduct that (on [the employer’s] mistaken view of the facts) constituted protected speech.” The Court observed, citing to Elrod v. Burns, 427 U.S. 347 (1976) and Branti v. Finkel, 445 U.S. 507 (1980), that “[w]ith a few exceptions, the Constitution prohibits a government employer from discharging or demoting an employee because the employee supports a particular political candidate.” However, the officer in this instance had just picked up a sign for his mother and was not actually engaging in political activity or supporting the candidate.

The question before Court in Heffernan was whether it is the employee’s actions, or instead the employer’s motivation in an employment decision, that determines whether an employee was deprived of a constitutional right. Put another way, does the analysis of whether the employee’s constitutional rights were violated by an employment decision focus on the employee’s conduct in engaging in protected activity, or is it instead focused on whether the employer believed (even mistakenly) that the employee was doing so?

The Court held in a 6-2 decision that whether the employee’s right was violated is determined by the employer’s motivation in the employment decision. In its decision, the Court looked to Waters v. Churchill, 511 U.S. 661 (1994), in which an employer terminated an employee when the employer believed the employee had engaged in speech that was not protected by the First Amendment, even though the employee’s speech was in fact protected. In Waters, the Court held that the employer did not violate the employee’s constitutional rights if it “(1) had reasonably believed that the employee’s conversation had involved personal matters, not matters of public concern, and (2) had dismissed the employee because of that mistaken belief.” The Court in Heffernan noted that the Waters decision focused on the perception of the employer, not the actions of the employee. The Court then stated:

“In Waters, the employer reasonably but mistakenly thought that the employee had not engaged in protected speech. Here the employer mistakenly thought that the employee had engaged in protected speech. If the employer’s motive (and in particular the facts as the employer reasonably understood them) is what mattered in Waters, why is the same not true here? After all, in the law, what is sauce for the goose is normally sauce for the gander.”

Notably, the Court also addressed whether its decision would increase the burden placed on employers to defend against claims, and held that a ruling that creates liability for an employer for a factual mistake does not place an increased burden on an employer. After all, the Court held, the employee still shoulders a heavy burden of showing the employer’s motive.

The case was then sent back to the lower court, who will hear, among other issues, if the employment decision was based on a policy prohibiting all officers from engagement in “overt involvement in any political campaign,” and if that policy was constitutional.

In light of the Heffernan decision, employers should be aware that they may not be able to defend adverse employment decisions where the employee’s engagement in protected speech is at issue merely by asserting that the employee was not actually engaged in protected speech. Their mistaken view will not relieve them of potential liability. Employers may wish to tread carefully when making an adverse employment decision and ensure that their investigatory procedure clearly documents that a decision was made as a result of unprotected speech by an employee or other just cause. As always, we advise that employers consult with an employment attorney prior to making adverse employment decisions.

The full text of the Heffernan decision can be found at: http://www.supremecourt.gov/opinions/15pdf/14-1280_k5fl.pdf.