The Eleventh Circuit recently held that the First Amendment couldn’t shield a Florida firefighters union from liability for retaliation. The decision affirmed a jury’s verdict that a union memo calling for reprisal against two workers after they filed charges with the U.S. Equal Employment Opportunity Commission (EEOC) constituted retaliation.

The union appealed the decision by Judge James S. Moody Jr., who had decided to let stand a 2012 verdict that the union retaliated against plaintiffs Anthony Booth and Jerry Brown when it leaked their names to colleagues in a memo meant to induce retribution for the EEOC charges.

The memo named Booth and Brown as the employees who lodged an EEOC complaint against a former supervisor and against Pasco County, Florida and speculated that the cost of litigation would cause union fees across the board to rise. A jury eventually found that the memo was an adverse action since it appeared to call for reprisal against Booth and Brown and because it led Booth and Brown to fear that their colleagues might put them in a life-threatening situation during the course of a fire response.

The panel said that the First Amendment is to be used primarily to protect matters of public concern, and the memo didn’t qualify as a matter of public concern because it was never intended for public consumption. The panel further added that the memo’s assertion that union dues would rise because of the EEOC charge was a baseless threat that is not protected by the First Amendment either.

This decision provides a valuable lesson that employers should not view adverse action narrowly to simply include matters that go directly to the terms and conditions of employment.