The VLW Blog

Here’s one for the public-sector employment lawyers.

Those lawyers know that public employees have First Amendment rights and can sue employers who abridge those rights.

But the First Amendment only protects employee speech on matters of “public concern.” A lot of workplace speech can involve issues peculiar to that workplace and personal to that employee. It isn’t always easy to see when an employee crosses the line.

Even a case close to the line can result in qualified immunity for the defendant, the 4th U.S. Circuit Court of Appeals ruled last week. The “speech” at issue was of public concern but the defendants were off the hook because it wasn’t clear from existing case law that it was, the court said in Campbell v. Galloway (VLW 007-2-061).

Amy Campbell contended that she was fired from the Southern Pines, N.C., police force after she wrote a 13-page memo to the chief. Some of the complaints in the memo were clearly personal and peculiar to the police department—the male cops didn’t invite her to breakfast, for example—but other allegations of sexual harassment were another matter, the court said. Campbell cited one instance in which a male officer reached down Campbell’s pants to retrieve a gun and another in which a male officer required a female DUI suspect to use the toilet with the door open, even though Campbell was available to act as escort.

The 4th Circuit said that sexual harassment complaints are not “per se” a matter of public concern. But its decision in Campbell might be the type of case law that “clearly establishes” just what type of sexual harassment allegation is a matter of public concern and make qualified immunity a more difficult plea to sustain.

Apparently the “take it like a man” defense has limits when it comes to women’s sports.

When Melissa Jennings played soccer for the legendary women’s team at the University of North Carolina at Chapel Hill, she tried to keep a low profile as coach Anson Dorrance indulged in sexual banter with team members during warm-ups. According to Jennings, Dorrance liked to get up close and personal with his players, speculating on their sexual interests and practices, and sharing his own freewheeling fantasies about his players.

But Jennings could no longer duck Dorrance’s attention when he asked her in a hotel room whether her love life was interfering with her grades. After Dorrance cut her from the team, Jennings sued the university under Title IX and sued Dorrance and the university’s lawyer for sexual harassment. A year ago, a 4th Circuit panel upheld summary judgment for the defendants.

The panel indicated that coaches – who use profanity, slang, sarcasm and “ham-handed humor” to make their points – may have more leeway in a locker room than in a classroom. Such “lapses in linguistic gentility” don’t necessarily equate to a sexually hostile environment, the panel said.

What a difference a year, and a full court, makes.

Yesterday the en banc court vacated summary judgment for three defendants in Jennings v. University of North Carolina (VLW 007-2-054). The court said that Jennings could proceed on her Title IX claim against UNC, and on her § 1983 claim against the coach for sexual harassment and her claim against the university lawyer for supervisory liability. The court said that Jennings had enough evidence to get in front of a jury, but the district court should first consider the coach’s and lawyer’s claims to qualified immunity.