07 Sep 2017
Commercial Law Employees Employee Employer First amendment US Employment law Freedom of political association Current Awareness

The Eleventh Circuit Court of Appeals recently issued an employment law decision that began with the following Game of Thrones quote: ‘A wise man once said a true history of the world is a history of great conversations in elegant rooms.’[1]

In today’s day and age, where social media and news outlets are constantly flooded with polarized political opinions, it is crucial that employers understand and respect the scope of the First Amendment. While some might spend their free time engaging in Facebook or Twitter wars, becoming social media ‘trolls’, and un-friending or un-following those who do not share their political beliefs, employers should be vigilant about respecting First Amendment rights in the workplace.

The First Amendment protects political association as well as political expression, and an individual’s right to associate with the political party of his or her choice is an integral part of that basic constitutional freedom.[2] While First Amendment claims can generally only be brought against public employers, private employers should remain cognizant of local laws that might extend similar political expression protections to all employees. For example, the Broward County Human Rights Act protects ‘all individuals’ within Broward County from discrimination because of ‘political affiliation’, which is defined as ‘belonging to or endorsing any political party’.[3] Additionally, Florida’s Voter Protection Act provides that it is a third degree felony to directly or indirectly use force, intimidation, or any tactic of coercion to compel an individual to vote or refrain from voting for any particular individual or ballot measure.[4]

A federal appellate court recently revived a Florida police officer’s § 1983 First Amendment retaliation claim against the City of Doral and its mayor. In his lawsuit, the police officer alleged that he supported the mayor’s ‘political rival’ and that because of his political beliefs, he was handed a termination letter that stated it was ‘effective immediately’. When the police officer was presented with the termination letter, he was given five minutes to consider the option of resigning. The police officer was advised that it would be easier for him to find future employment if he resigned and ultimately resigned.

The City argued that the police officer’s retaliation claim failed because the police officer resigned, thus, there was no adverse employment action. However, the Eleventh Circuit Court of Appeals disagreed with the City’s stance and found that the police officer could sustain a First Amendment claim. The court quoted Game of Thrones and explained that great political conversations could not exist without the First Amendment. The court reasoned that the police officer presented sufficient evidence to establish that he suffered an adverse employment action and that his resignation was not voluntary.

This case serves as a reminder to all employers that they should strive to foster a tolerant, respectful work environment. Employers should remain cognizant of local laws and promptly seek legal counsel prior to disciplining any employee for what might be interpreted as connected to the exercise of political expression.

Deedee Bitran is Attorney at Law at Shutts & Bowen LLP.

 


[1] Rodriguez v. City of Doral, No 15-11595, 2017 WL 3044621, at *1 (11th Cir July 19, 2017).

[2] Id at *5.

[3] Sec 16 ½ -2.

[4] Section 104.0615, Florida Statutes.