Mistaken Activity: Retaliation Claims in the Wake of Heffernan v. City of Paterson

Last week, the U.S. Supreme Court issued its decision for Heffernan v. City of Paterson. The case involved a police officer who picked up campaign signs for the current mayor’s opponent on behalf of his bedridden mother. The officer was in no way connected or affiliated with the campaign but some of his co-workers saw him pick up the signs and assumed he was working for the mayor’s opponent. The next day, the officer was demoted as retaliation for his “overt involvement” in the campaign.

The Supreme Court weighed in on retaliation claims last week

The importance of the case revolves around what exactly the officer did. Generally, retaliation claims require (1) protected speech or activity, (2) materially adverse action, and (3) a causal connection between the two. The problem for the petitioner in this case is that he did not actually engage in any protected activity – the officer admitted that he was not making a political statement and was only picking up a box for his mom.

The Supreme Court held that it is no longer required that a person actually engage in protected activity if they are perceived to be doing so; that it was the employer’s reason for the materially adverse action rather than the employee’s conduct that matters. Justice’s Breyer’s majority opinion put’s it like this:

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 and 42 U. S. C. §1983—even if, as here, the employer makes a factual mistake about the employee’s behavior.

In other words, if an employee is retaliated against for a protected activity, even if the employee didn’t actually do what they were believed to have done, it will still be considered illegal retaliation.

The case will have an impact on potential retaliation claims before the CHRO. It is illegal under the Connecticut Fair Employment Practices Act (CFEPA) to retaliate against any person because he or she has opposed any discriminatory employment or housing practice. For example, if an employee files a complaint with a supervisor alleging that he or she is being discriminated against then it is illegal for the employer to terminate that employee for filing the complaint. Following the Supreme Court’s ruling in Heffernan, a retaliation claim could be made alleging an employer made an adverse employment decision against an employee for opposing discrimination even if the employer is mistaken about the employee ever having done so.