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Supreme Court Limits Public Employees’ Ability to Sue Their Employer Under Constitution’s Right-to-Petition Clause


Supreme Court Limits Public Employees’ Ability to Sue Their Employer Under Constitution’s Right-to-Petition Clause

June 28, 2011

In addition to navigating the maze of various state and federal laws affecting employees, public sector employers also must consider whether an employee is entitled to any constitutional rights.  The First, Fourth, Fifth and Fourteenth Amendments to the United States Constitution all may provide public employees with different protections or entitlements.  In a decision issued last week, the United States Supreme Court addressed the rights of public employees to claim retaliation against their employer under the First Amendment.

Not only does the First Amendment to the Constitution protect the “freedom of speech,” it also provides individuals with the right “to petition the Government for a redress of grievances.”  The “Petition Clause” has provided a vehicle that public employees have used to protest treatment by their employer.

In Borough of Duryea v. Guarnieri, the Court held that an employee who wishes to sue his or her employer to redress a grievance only has the right to sue under the right-to-petition clause if the matter is “of public concern.”  The scope of the Petition Clause now matches the scope of the Free Speech Clause of the First Amendment with respect to challenges to adverse employment actions in the public sector.  The Supreme Court reversed the Third Circuit’s opinion that allowed lawsuits based on the Petition Clause to be filed regardless of whether they involved a matter of public concern.

Writing for the Court, Justice Kennedy observed that the “government’s interest in managing its internal affairs requires proper restraints on the invocation of rights by employees when the workplace or the government employer’s responsibilities may be affected.” Noting that the history and purpose of the Petition Clause did not “justify the imposition of broader liability when an employee invokes its protection instead of the protection afforded by the Speech Clause,” the Court stated that in the context of a retaliation claim, there was no reason why the Petition Clause should be an exception to these restraints.  The need to avoid an intrusion on governmental operations justifies this limitation on public employees’ abilities to sue their employers over workplace complaints.  The Court carefully noted that this only addressed lawsuits by public employees alleging retaliation by their public employer and that there was no need to extend the Court’s analysis beyond that context.

Although this case limits the public employee’s ability to sue his or her employer under the Petition Clause, public employers must be mindful of their employees’ ability to challenge actions in a lawsuit brought under the right-to-petition clause, as the Court refused to expand its holding beyond retaliation claims.  Further, employees may seek to frame their employment dispute as a matter of public concern by making claims such as excessive hours worked by public safety employees are a danger to the public, outdated equipment is causing wasted resources, or the failure to hire sufficient staff will result in costly overtime.

While this decision is favorable for public employers, it also serves as an important reminder of the extra level of analysis that must go into making employment decisions in the public sector. An individual does not lose his or her constitutional rights merely by accepting employment with the government or a government agency.

Should you have any questions concerning the impact of this decision, please contact Sean P. Beiter (716.566.5409;, or another member of the Goldberg Segalla Labor and Employment Practice Group.