Protests Against Racial Discrimination Constitute Protected Speech

Kuo-Yun Tao is an American citizen of Chinese descent employed as a Chinese language specialist at the Language Service Unit (LSU) in the Washington Metropolitan Field Office of the Federal Bureau of Investigation. In 1990, Tao applied for a promotion. The FBI rejected Tao’s request for a promotion on the grounds that while her translations were accurate, they lacked conciseness and organization.

Tao appealed the denial of her promotion. In addition, Tao’s husband, who was her legal representative, wrote a letter to the director of the FBI advising that Tao’s appeal was the “first voice of protest” against discrimination within the LSU against Chinese Americans and requesting that the director intervene.

The FBI informed Tao that she would be required to submit new testing materials before she would be reassessed for promotion. Tao estimated that it would take her twenty-seven hours to prepare the new materials.

Tao sued the FBI alleging that its treatment of her promotion application was in retaliation for exercise of her free speech rights concerning the alleged discrimination within the LSU. When a Federal District Court dismissed the case, Tao appealed to the United States Court of Appeals for the District of Columbia Circuit.

The Court reversed the dismissal of Tao’s lawsuit, and remanded the case for trial. The Court first dealt with the FBI’s defense that it had not taken severely adverse action against Tao to form the basis for a First Amendment lawsuit.

The Court noted that “Tao was faced with the repeated imposition of a rigorous testing requirement involving twenty-seven hours of additional work.” The Court ruled that if employees who exercise free speech “find themselves facing more burdensome promotion requirements than those employees who remain silent, they are unlikely to speak on matters of public concern.” Citing a passage in a Supreme Court decision that “even an act of retaliation as trivial as failing to hold a birthday party for a public employee” may be actionable under the First Amendment, the Court found that the FBI’s requirement that Tao go through a new promotional testing process did implicate freedom of speech concerns. In support of its conclusion, the Court cited cases that even a written reprimand can be sufficient retaliation to trigger free speech analysis.

The Court also rejected the FBI’s argument that Tao’s speech, made through her husband’s letter, was not protected by the First Amendment. While the Court acknowledged that Tao’s complaints of racial discrimination had a partially personal motivation, it also found that “an employee’s speech aimed at resolving a personnel dispute may touch upon an issue of public concern. A statement concerning racial discrimination on the part of a public agency is a matter of public concern because it involves information that enables members of society to make informed decisions about the operation of their government.”

The Court also found that the fact that Tao’s statement was not made public did not affect its analysis of her potential freedom of speech claims. The Court held that “the freedom of speech guaranteed by the First Amendment is not lost to the public employee who arranges to communicate privately with his or her employer rather than to spread his or her views before the public.”

Because there were conflicting factual claims as to whether the FBI’s requirement that Tao go through a new testing process was in fact in retaliation for her speech, the Court remanded the case to the District Court for trial.

Tao v. Freeh, 27 F.3d 635 (D.C. Cir. 1994).