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Whose Intent Matters in Discrimination Cases: the Employer or the Employee?


In the general employment discrimination context, whether the employer had the intent to discriminate is key. For instance, if an employee is disciplined, the question is whether it was the employer's intent to discriminate in disciplining the employee, or whether it was really the employee's violation of work policies. In First Amendment retaliation cases, the issue is a bit different.

Typically, the focus is on whether the employee's speech was intended to express a personal belief or a matter of public interest. However, in a recent case, the United States Supreme Court was faced with the question of whether the employee had any intent to make a First Amendment expression, and whether that mattered.

First Amendment Retaliation Claims

In most First Amendment employment cases, the intent of the employer is irrelevant. Instead, the focus is on whether the speech or other protected activity was of a personal nature or whether it involved a matter of public interest. Put another way, did the employee act as an employee or a citizen? Did the speech or activity harm the government's interests? So, typically it doesn't matter what the employer's intent was because it is the speech that matters. However, the situation in Heffernan v. City of Paterson was very unique.

What happens when the employee had no intent to speak or act at all?

Recently, in Heffernan v. City of Paterson, the United States Supreme Court was faced with a unique situation. In that case, the employee asserted that he did not intend to speak or act at all, but was instead punished by his employer for its perception that he had done so. So, whose intent should be the focus when constitutional rights are involved? In that case, the Court found that the employer's intentions were the focus.

The allegedly discriminatory discipline

The employee, Jeffrey Heffernan, was a police officer for the City of Paterson. Heffernan's direct supervisor had been appointed to his position by the Mayor who was running for reelection. During the election campaign, Heffernan's coworkers saw him at campaign headquarters talking with campaign workers and holding a campaign sign for the Mayor's opponent. This was reported to Heffernan's supervisors, who then demoted him from detective to patrol and gave him an undesirable patrol post. It was alleged that this disciplinary action was brought about by his perceived involvement in the campaign for the Mayor's opponent.

Heffernan challenges his demotion in court

However, Heffernan denied that he was involved in the campaign and denied supporting the Mayor's opponent. Instead, he asserted that the only reason he was holding the sign was because he was there to pick up the sign up for his mother who was bedridden. He later filed a lawsuit against the city alleging that he was demoted because the City believed he engaged in protected activity, even though he denied that he had intended to speak or act.

Mistaken belief of political support a defense?

The law is clear that a government employer, such as a municipality, cannot make employment decisions based on the fact that an employee supports a particular political candidate. But, in this case, the employee contends that he did not actually support the Mayor's opponent. The City based its defense on this fact, arguing that the employee did not actually engage in protected activity, so the demotion did not violate his rights. The United States Supreme Court did not buy this argument. Instead, the court held as follows:

the government's reason for demoting Heffernan is what counts…When an employer demotes an employee out of a desire to prevent the employee from engaging in political activity that the First Amendment protects (even if the employee did not intend to engage in that activity), the employee is entitled to challenge that unlawful action under the First Amendment

In other words, it doesn't matter that the employee was demoted because he appeared to be engaging in protected activity. The adverse employment action would still discourage other employees from engaging in what should be protected activity.

If you feel you have been the victim of discrimination, or if you have any questions regarding your employment rights, please contact Michel | King , either online or by calling us at (205) 265-1880.

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