Political Retaliation

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What is political retaliation?

Most political speech is not protected in a private work setting. If you are a public employee, however, the New Jersey Civil Rights Act makes it unlawful for a public employer to retaliate against or wrongfully terminate an employee due to their political speech, political beliefs, supporting a political candidate, or affiliating with a political party.

To make a case for political affiliation retaliation, an individual must show that (1) they were employed at a public agency in a position that does not require political affiliation, (2) they were engaged in constitutionally protected conduct, and (3) this conduct was a substantial or motivation factor in the government’s employment decision.

A public employer cannot discriminate against a public employee for a perceived political affiliation.

In 2016, the United States Supreme Court, in Heffernan v. City of Paterson, ruled that it is unlawful for a public employer to retaliate against an employee for protected political activity. In this First Amendment case, the Court held that if an employer’s motivation for taking an adverse employment action is political, the employer may have violated the 1st Amendment and be liable for damages.