The Sixth Circuit recently held that Michigan state employees could base First Amendment political-affiliation and protected-speech retaliation claims on their perceived political affiliations, even absent actual affiliations with the party in question.  Dye v. Office of the Racing Comm’n, No. 11-cv-1828 (6th Cir. Dec. 18, 2012).   It’s important for government and private employers alike to appreciate the import of this decision, and it’s noteworthy that this decision widens a split between the Sixth and Third Circuits.


Four Racing Stewards working for Michigan’s Office of the Racing Commissioner (“ORC”) alleged that the ORC Commissioner and Deputy Commissioner retaliated against them based on their perceived political affiliations.  Specifically, they claimed that the Commissioner and Deputy Commissioner, who were political appointees of Michigan’s Democratic Governor, did so because they perceived them as being affiliated with the Republican Party and because they engaged in political speech during the 2006 Republican gubernatorial election and confirmation process.  On these bases, they filed an action in the U.S. District Court for the Eastern District of Michigan alleging a § 1983 First Amendment retaliation claim.

The district court granted the defendants summary judgment, stating that “none of the stewards had established that they were affiliated with the Republican Party or [the Republican] gubernatorial candidate[.]” 

Sixth Circuit Ruling

The Sixth Circuit (majority) began its analysis by noting that protected-speech and political-affiliation retaliation claims are governed by the First Amendment retaliation doctrine.  To establish a prima facie case under this doctrine, a plaintiff must show (1) he or she engaged in constitutionally protected speech or conduct; (2) an adverse action was taken against him or her that would deter “a person of ordinary firmness” from continuing to engage in that conduct; and (3) there is a casual connection between elements one and two – that is, the adverse action was motivated at least in part by his protected conduct.  If the employee establishes a prima facie case, the employer must show by a preponderance of evidence that the adverse action would have been the same absent the protected conduct.

Analyzing the factual record under this framework, the Sixth Circuit reversed the district court’s ruling, holding that the plaintiffs were protected against political affiliation discrimination regardless of whether they actually were affiliated with the Republican Party.  In this regard, the court stressed that “the critical inquiry in certain political-affiliation retaliation cases is the motivation of the employer[.]” 

This holding diverges from the requirement in the Third Circuit that a plaintiff make a showing of actual (not just perceived) political affiliation.  Ambrose vs. Twp. of Robinson, Pa., 303 F.3d 488 (3d Cir. 2002). 


This decision serves as another reminder that retaliation claims come in all shapes and sizes (we examined retaliation claims based on familial relationships in a recent post), and that employers need to be cautious about their reasons for any adverse employment actions.  Plus, this case shows that, in some instances (and in the Sixth Circuit in particular), a claim that a supervisor retaliated against someone based on a misperception as to his or her affiliation or conduct could form the basis of a retaliation claim. 

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Photo of Steven J. Pearlman Steven J. Pearlman

Steven J. Pearlman is a partner in the Labor & Employment Law Department and Co-Head of the Whistleblowing & Retaliation Group and the Restrictive Covenants, Trade Secrets & Unfair Competition Group.

Steven’s practice covers the full spectrum of employment law, with a particular…

Steven J. Pearlman is a partner in the Labor & Employment Law Department and Co-Head of the Whistleblowing & Retaliation Group and the Restrictive Covenants, Trade Secrets & Unfair Competition Group.

Steven’s practice covers the full spectrum of employment law, with a particular focus on defending companies against claims of employment discrimination, retaliation and harassment; whistleblower retaliation; restrictive covenant violations; theft of trade secrets; and wage-and-hour violations. He has successfully tried cases in multiple jurisdictions, and defended one of the largest Illinois-only class actions in the history of the U.S. District Court for the Northern District of Illinois. He also secured one of only a few ex parte seizures orders that have been issued under the Defend Trade Secrets Act, and obtained a world-wide injunction in federal litigation against a high-level executive who jumped ship to a competitor.

Reporting to boards of directors, their audit committees, CEOs and in-house counsel, Steven conducts sensitive investigations and has testified in federal court. His investigations have involved complaints of sexual harassment involving C-suite officers; systemic violations of employment laws and company policies; and fraud, compliance failures and unethical conduct.

Steven was recognized as Lawyer of the Year for Chicago Labor & Employment Litigation in the 2023 edition of The Best Lawyers in America. He is a Fellow of the College of Labor and Employment Lawyers.  Chambers describes Steven as an “outstanding lawyer” who is “very sharp and very responsive,” a “strong advocate,” and an “expert in his field.” Steven was 1 of 12 individuals selected by Compliance Week as a “Top Mind.” Earlier in his career, he was 1 of 5 U.S. lawyers selected by Law360 as a “Rising Star Under 40” in the area of employment law and 1 of “40 Illinois Attorneys Under Forty to Watch” selected by Law Bulletin Publishing Company. Steven is a Burton Award Winner (U.S. Library of Congress) for “Distinguished Legal Writing.”

Steven has served on Law360’s Employment Editorial Advisory Board and is a Contributor to He has appeared on Bloomberg News (television and radio) and Yahoo! Finance, and is regularly quoted in leading publications such as The Wall Street Journal.

The U.S. Chamber of Commerce has engaged Steven to serve as lead counsel on amicus briefs to the U.S. Supreme Court and federal circuit courts of appeal. He was appointed to serve as a Special Assistant Attorney General for the State of Illinois in employment litigation matters. He has presented with the Solicitor of the DOL, the Acting Chair of the EEOC, an EEOC Commissioner, Legal Counsel to the EEOC and heads of the SEC, CFTC and OSHA whistleblower programs. He is also a member of the Sedona Conference, focusing on trade secret matters.