More Good News from the Supreme Court

Employees got more good news from the Supreme Court this week. In Heffernan v. City of Paterson, New Jersey, the Supreme Court held an employee is protected from unlawful retaliation even if the employee has not engaged in protected activity, but the employer mistakenly thinks he did.

The employee, Jeffrey Heffernan, was a police officer in Pattern, New Jersey. Heffernan’s boss was appointed by the current mayor, who was running for re-election. When Heffernan was spotted carrying the political sign of the current mayor’s opponent (he went to get the sign for his mother), Heffernan’s boss got wind of it and demoted Heffernan. Heffernan sued to allege the First Amendment retaliation (not a statutory claim like Title VII, which is significant for reasons we will discuss later).

The Supreme Court held that despite the fact Heffernan did not engage in protected speech (i.e., he did not actually support the mayor’s opponent) the Constitution’s protections focus not only on the employee’s right to engage in protected activity without repercussion but also on the employee’s right to be free from retaliation if the motivation for the retaliation is a belief (albeit a mistaken one) that the employee engaged in protected activity. In other words, not only is the employee’s speech protected, but the employer’s improper motivations are prohibited.

We conclude that . . . the government’s reason for demoting Heffernan is what counts here. When an employer demotes an employee out of a desire to prevent the employee from engaging in political activity that the First Amendment protects, the employee is entitled to challenge that unlawful action under the First Amendment . . .

As noted, this case arose under the First Amendment to the United States Constitution, and not under one of the more commonly relied upon employment discrimination statutes such as Title VII. But the logic of the holding, with its focus on the employer’s motivations, would seem to indicate a basis to attack a line of cases rejecting statutory retaliation claims where the employee opposes a single incident she reasonably believes constitutes an unlawful employment practice, even though the practice opposed does not itself rise to the level of an actionable discrimination claim.