New Third Circuit precedent confirms government employers should be on the offense to play the best defense in First Amendment retaliation claims

The Third Circuit in Jorjani v. NJIT, et al., just issued a precedential opinion last week on private professor speech that further refines what evidence is needed to show disruption. The decision makes clear that affirmative evidence is needed to win the balancing test and courts will want employer evidence of disruption to be painstakingly detailed.

A quick recap on the law – a plaintiff needs to show that her speech is protected. Assuming she shows it was citizen speech on a matter of public concern, the analysis switches to a balancing test between her interests versus the employer’s interest in avoiding disruption in the workplace. The question of disruption is a matter of law, but requires a robust factual record, often making these cases ill-equipped for a motion to dismiss. The employer’s evidence cannot be speculative, otherwise, you risk a Jorjani Court conclusion: “the school documented no disruption to its educational mission” in response to a lecturer’s comments about race, politics, and immigration.

• Students complained but NJIT “never identified the exact number of calls or complaints made in person or writing, nor any details about the students’ concerns,” and did not submit objective evidence that students questioned the lecturer’s abilities, or evidence of student protests or unwillingness to abide by university policies.
• Faculty published letters denouncing the speech, but there was no evidence that it interfered with faculty’s ability to do their jobs, flagging that the impact on close working relationships may not be a justification for university employers under the balancing test because it is “irrelevant inside the university where professors serve the needs of their students, not fellow academics.”
• The administrator’s office fielded community outrage, but it was not such an overwhelming number (about 50) compared to NJIT’s “ordinary obligation to field calls and emails,” and there was no evidence that the “minor uptick” in communications required additional staffing to support the single administrator who handled the inquiries.

Internal investigations are a vital tool here to support an employer’s tangible, fact-based justifications. Use them to:

1. Gather data to show performance changes (decreased productivity, absenteeism, or turnover)
2. Evaluate whether the speech violates internal policies (and apply them consistently)
3. Solicit statements from employees showing the breakdown in trust, teamwork, or performance, or why such qualities are vital to your particular workplace.

Build a strong disruption story early, and do not depend on plaintiffs to establish the discovery record. The difference between dismissal and trial requires employers to go on the offense and affirmatively seek out deposition testimony (yes, of your own defense witnesses), affidavits, or paper records that will tip the scale in your favor.

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