In Dye v. Office of the Racing Comm'n, the 6th Circuit Court of Appeals has ruled that individuals alleging retaliation because of their political affiliation need not show that they were actually affiliated with the perceived political party or candidate to be protected against adverse employment actions. +2012 U.S. App. LEXIS 25742.
In Dye, several state employees argued that they were demoted, terminated or otherwise subjected to adverse employment actions due to the employer's belief that they backed the Republican candidate in the 2006 Michigan gubernatorial election. The court confirmed that protected-speech retaliation and political-affiliation retaliation are protected by the First Amendment, and that this protection extends to employees and independent contractors hired by a state employer. Although speech that is disruptive to the operations of a government agency is not protected, an employer will be held liable if an employee suffers an adverse employment action based on its mistaken belief regarding the employee's political affiliation.
This decision shows how a court may focus its retaliation analysis on the employer's motivation for an adverse employment action, and not on the facts underlying a protected activity. Although the 6th Circuit aligned itself with the 1st and 10th Circuits, this case reveals a split with the 3rd Circuit, which has required actual, rather than perceived, political affiliation in retaliation cases. See Ambrose v. Twp. of Robinson, Pa., +303 F.3d 488, 495 (3d Cir. 2002).
Employers should ensure that disciplinary actions, including demotions or terminations, are based on fair and consistent enforcement of work rules and performance standards, and are not taken in retaliation for a legally protected activity. XpertHR will continue to monitor court decisions in this area, including any potential Supreme Court intervention to resolve circuit court disagreement.
Additional Resources
Employee Management > Employee Discipline > Whistleblower Protections
Statements Made by Government Employee Pursuant to Official Duties Are Not Protected by the First Amendment
