Sixth Circuit: AVP of HR’s Statements About Civil Rights Concerned Her Job and Was Not Protected Under First Amendment

On Monday, the Sixth Circuit Court of Appeals affirmed summary judgment for a public university employer which had been sued for discharging its former chief human resources officer in violation of her First Amendment rights for stating, among other things, that homosexuality was a choice, unlike her skin color.  The Court found that because her statement involved a subject that was central to her job duties of administering human resources policies, it was not protected by the First Amendment.   It rejected her argument that she was merely speaking as a private citizen and that she appropriately administered the policies without regard to her personal opinions.  Therefore, the university was within its rights to terminate her employment when it lost confidence in her ability to administer its diversity policies.

As explained by the Court, the “then-interim Associate Vice President for Human Resources at the University of Toledo (the “University”), wrote an op-ed column in the Toledo Free Press rebuking comparisons drawn between the civil-rights and gay rights movements. Shortly thereafter,” she was discharged.  The Court framed the issue as “whether the speech of a high-level Human Resources official who writes publicly against the very policies that her government employer charges her with creating, promoting, and enforcing is protected. We conclude that, given the nature of her position, [she] did not engage in protected speech.” I n the Sixth Circuit “where a confidential or policymaking public employee is discharged on the basis of speech related to his political or policy views, the Pickering balance favors the government as a matter of law.”  

The plaintiff argued

 

that her op-ed column expressed a matter of personal concern and “was not speech that relates to either [her] political affiliation or substantive policy.” . . . .  [Her] argument, however, ignores critical policies developed in and promoted by the Human Resources Department at the University. [Her] public statement implying that LGBT  individuals should not be compared with and afforded the same protections as African- Americans directly contradicts several such substantive policies instituted by the University. . . . . Although [she] correctly contends that she never explicitly stated that the University diversity policies should not extend to LGBT students and employees, by voicing her belief that members of the LGBT community do not possess an immutable characteristic in the way that she as an African-American woman does, the implication is clear: [she] does not think LGBT students and employees of the University are entitled to civil-rights protections, even though the University, in part through the Human Resources Department, expressly provides them.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.