Last week, the Fourth Circuit Court of Appeals addressed for the first time whether a retaliation claim can be brought against a government employer under the Equal Protection Clause of the Fourteenth Amendment. The answer? No.
The female plaintiff, a former Deputy Commonwealth Attorney for Carroll County, Virginia, brought a Section 1983 claim against her former employer under the theory that she was fired in retaliation for reporting sex discrimination, and that the alleged retaliatory firing violated the Fourteenth Amendment’s Equal Protection Clause. For reasons not stated in the opinion, the plaintiff declined to bring a retaliation claim under Title VII.
The Fourth Circuit reiterated that “[i]ntentional sex discrimination and sexual harassment against public employees by persons acting under color of state law violate the Equal Protection Clause and are actionable under Section 1983.” Slip Op., at 10. However, the Fourth Circuit also noted that there is not a recognized equal protection right to be free from retaliation. Instead, the Fourth Circuit pointed to previous rulings where it held that a retaliation claim does not implicate the Equal Protection clause. To the extent that a retaliation claim against a government employer implicates any constitutional provision, it would be the First Amendment protection for freedom of speech.
Notwithstanding these established precedents, the plaintiff argued that because the subject matter of her complaint to her former employer was sex discrimination and harassment, her claim of retaliation was cognizable under the Equal Protection clause. The Fourth Circuit rejected this argument, stating that retaliation for reporting sex discrimination is based on the employee’s report, and not because of the employee’s sex. The Fourth Circuit noted that the “very premise of a retaliation claim is that the employer has subjected an employee to adverse consequences in response to [a] complaint of discrimination.” Slip Op., at 13.
Because the plaintiff alleged that she was fired “in retaliation for her complaint of sexual harassment and discrimination, not because she is a woman,” the allegations “[did] not implicate an impermissible classification or discrimination on the basis of [plaintiff’s] membership in a class defined by an immutable characteristic.” Id. at 14-15. Therefore, the Equal Protection clause did not apply.
The Fourth Circuit’s opinion, Wilcox v. Lyons, No. 19-1005, is available here.