Constitution Daily

Smart conversation from the National Constitution Center

Can your boss fire you for expressing your opinion?

January 21, 2013 by Amy E. Feldman


Is a human resources official, who voiced opinions about gays that contradict her employer’s views, protected from being fired by the First Amendment?

That’s the issue that a circuit court had to decide in December after Crystal Dixon wrote a letter to the op-ed section of the Toledo Free Press.


At the time, Dixon was associate vice president for human resources at the University of Toledo.


“As a black woman who happens to be an alumnus of the University of Toledo's Graduate School, an employee and business owner, I take great umbrage at the notion that those choosing the homosexual lifestyle are 'civil rights victims.' Here's why. I cannot wake up tomorrow and not be a black woman ... Daily, thousands of homosexuals make a life decision to leave the gay lifestyle evidenced by the growing population of PFOX (Parents and Friends of Ex Gays) and Exodus International just to name a few,” she said.


Shortly thereafter, Dixon was fired from her job for expressing that opinion, even though she told the university that her personal views didn’t affect her job performance or prevent her from hiring openly gay employees.

Dixon sued the University of Toledo, a public institution, for retaliation in violation of her First Amendment rights. It is clear that she expressed an opinion. It is clear that the issue of civil rights and to whom they should extend is a matter of public concern.

It is also clear that in her position with the University of Toledo, she was responsible for implementing hiring and diversity policies.

How should the court decide this matter? Did the University violate Dixon’s right to freedom of speech as a private citizen expressing her opinion? Or did the University act correctly by terminating an employee who expressed an opinion that contradicts university policies, some of which were her direct responsibility to implement?

Asked another way, is the “speech of a high-level Human Resources official who writes publicly against the very policies that her government employer charges her with creating, promoting, and enforcing” protected (Dixon v. Univ. of Toledo et al.)?

The court found that her speech is not protected by the First Amendment. Why? Because the court found that while she did not specifically state that gay students are not entitled to protection of the university’s diversity policies, she did express a belief that the status of homosexual individuals should not be considered a matter of civil rights, despite the fact that the university explicitly provides civil rights benefits through its policies.

By writing what she wrote, she expressly and publicly contradicted the policies that were her duty to administer. She was not, therefore, protected by the First Amendment. Do you think the Sixth Circuit decided the case correctly? Should her duty of loyalty trump her rights under the First Amendment? We’d love to hear your thoughts.

Amy E. Feldman is the Legal Education Consultant to the National Constitution Center. She is the General Counsel of The Judge Group, Inc., a leading global professional services based in Philadelphia.

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