Fired Federal Workers Test New Claims Over Political Retaliation

Federal employees alleging the Trump administration fired them in retaliation for their politics will need judges and an independent body that handles federal worker disputes to determine how established First Amendment and civil service protections apply to their terminations.

The cases filed last month involve claims against the Federal Bureau of Investigation, the Department of Health & Human Services, and the Environmental Protection Agency. Unlike earlier lawsuits challenging the legality of mass layoffs by the Trump administration, these cases focus on adverse actions allegedly linked to perceived political ideology and association.

Some new legal claims extend beyond traditional public-employee expressive conduct subject to scrutiny under the US Supreme Court’s 1968 Pickering v. Board of Education decision, which affirmed public employees’ First Amendment rights to comment on matters of public concern, legal and political science scholars say. The allegations also raise questions about the scope of First Amendment protections for nonpolitical civil employees when adverse actions are based on perceived viewpoint or ideological targeting.

Legal observers expect the executive branch to justify its actions as a legitimate exercise of managerial authority during workforce restructuring. However, judges must weigh this defense against Congress’s intent to preserve a neutral, merit-based civil service free of political interference and protect employees’ free speech rights.

“The question ultimately comes down to whether or not there is enough or even any proof at all that these were politically motivated actions,” said senior attorney Brett Nolan of the Institute for Free Speech, which litigates and tracks issues concerning political speech rights.

A government victory could give future administrations a framework for aggressive but viable legal defenses to fire nonpolitical career civil employees seen as disloyal, said David Super, an administrative and constitutional law professor at Georgetown University Law Center.

The Allegations

One case involves a district court complaint from 12 FBI agents who say they were fired for kneeling during a 2020 protest.

The agents, who sued anonymously, stated that their actions were meant to de-escalate tensions and prevent a possible clash with protesters, not to make a political statement. They noted that the previous administration declined to discipline them.

Legal observers were divided on whether this case is strong enough on First Amendment grounds. The agents did not claim their actions were political or occurred during personal time off duty, which would be necessary to trigger scrutiny under Pickering.

Nolan said there are clear-cut First Amendment claims in a district court suit accusing Health and Human Services Secretary Robert F. Kennedy Jr. of illegally firing an infectious disease leader for speaking out against his “anti-vaccine” agenda, as well as a Merit Systems Protection Board complaint by six EPA employees who were terminated after signing an open letter critical of the administration’s public health and environmental policies.

DEI Speech

Meanwhile, a proposed class action by four federal workers alleges unlawful termination for their perceived involvement in diversity, equity, and inclusion work, raising a novel First Amendment issue. Legal scholars note the case is unusual because it does not focus on expressive workplace conduct.

This case requires determining if firing these workers and cutting DEI roles in response to executive orders curtailing public sector diversity efforts represents a legitimate agency restructuring or an impermissible attempt to suppress viewpoints the government now labels as ideological or partisan, legal scholars said.

“If the government wishes to prioritize other activities, and Congress hasn’t compelled them to devote staff resources to DEI, then eliminating those positions is possible,” Super said. “But the failure to follow civil service rules in determining whether they can be reassigned to other jobs would seem to be discrimination on the basis of perceived viewpoint.”

“The case will most likely shape law because it directly tests whether the president can use reorganizations as a proxy for ideological purges,” said William Resh, a professor at Georgia State University and chair of its Department of Public Management and Policy.

The administration is also accused of targeting the workers based on their race or gender in violation of Title VII of the 1964 Civil Rights Act, and the workers alleged the terminations had a disparate impact.

This argument will allow the government to challenge the viability of disparate impact discrimination theory, which comes into play when facially neutral policies unintentionally result in negative effects based on race, sex, or other protected traits, unlike claims of intentional bias, Super said.

After an April executive order, the Trump administration took steps to stop agencies from using disparate impact legal theory in anti-bias enforcement, including in existing litigation. Critics say disparate impact makes employers too vulnerable to bias claims when there is no discriminatory intent.

Despite this enforcement shift, disparate impact claims in employment still hold under Supreme Court precedent. Congress amended Title VII in 1991 to specifically codify the theory.

The argument that workers in DEI-related roles are perceived as having particular ideologies “seems to me to be good enough, even if some of them may not hold the beliefs that the administration thinks they have,” Super said.

Speed Matters

Timely resolution of these allegations is critical for workers seeking reinstatement and other remedies.

“Speed matters a lot,” Resh said, because federal workforce changes are happening quickly. The lawsuits could take years to resolve, and the jobs at issue may already be gone before any ruling, he added.

In pending cases involving the president’s sweeping restructuring efforts, the Supreme Court’s conservative majority has allowed him to proceed, “creating a dramatic expansion of presidential power,” Resh noted.

The high court “has been sending a fairly consistent signal that the courts need to be cautious about interfering with how the president manages the federal workforce. That doesn’t mean these employees don’t have merit in their cases, or that they can’t sue. It just means that the remedies to their complaints or appeals are going to be much more narrow,” he said.