Employer’s perception of employee speech matters.

On April 26, 2016, the Supreme Court of the United States held that the employer’s perception that the employee had engaged in first amendment protected speech was relevant to determining whether the employer was motivated by that speech in demoting the employee. Click here for the full article in Law 360. This decision is extremely important as it brings first amendment rights in the employment context into line with the “perception” analysis routinely recognized in other employment cases.  For instance, in LGBT and ADA cases, the employer’s perception of the employee’s medical condition or sexual orientation is relevant to the analysis of whether the employer was motivated by that perception, even if the perception was incorrect. Similarly, in this case, where Heffernan did not actually engage in the protected speech perceived by the employer, the employer believed that he had and demoted him based upon that perception.  The employer sought to dismiss the case because they claimed that no protected speech had actually taken place and hence, the employee did not have a cause of action to pursue.  SCOTUS created the cause of action based upon the employer’s perception of the speech having taken place, remanding the case for trial.