Saul C. Glazer, Editor
Axley Brynelson, LLP

Vol. 17, No. 7
July 2008

DISCRIMINATION

Court narrows equal protection claims against public employers

On June 9, the U.S. Supreme Court ruled that class-of-one equal protection claims have no place in the public employment context. The Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution generally requires that government not treat individuals differently because of membership in a particular class. For example, if a public employer demotes an employee because of her gender or race, that would violate the Equal Protection Clause.

In 2000, the Supreme Court confirmed that the Equal Protection Clause applies not only to circumstances involving class-based decisions but also to circumstances in which individuals claim that the government made an arbitrary or irrational decision unrelated to the person's membership in a particular class. Since that time, federal courts have split on whether class-of-one equal protection claims are available in the public employment context. In a recent decision, the Supreme Court answered "no."

Equal Protection Clause

Public employers have long understood that their employees have an additional set of protections provided by the U.S. Constitution that aren't available to private employees. For example, public employees have speech and association rights under the First Amendment as well as protection from unreasonable searches under the Fourth Amendment. If a public employee can be discharged only for just cause, the Fourteenth Amendment's Due Process Clause requires notice and a hearing before his dismissal can be final.

The Equal Protection Clause also places constraints on public employers. It prohibits them from treating employees differently because of their membership in a particular class. For example, a public employer can't refuse to hire an individual because of age, race, gender, national origin, or disability. The same alleged conduct may violate other laws such as Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, or the Age Discrimination in Employment Act.

The fact that a public employee may have an equal protection claim in addition to other claims is significant. For example, there's a longer statute of limitations for filing an equal protection claim than there is for claims filed under Title VII. Additionally, claims filed under the Equal Protection Clause create greater liability for damages (including punitive damages) and contain no limit for compensatory damages for emotional distress. A public employee with a valid equal protection claim can expose his employer to substantial liability.

Class-of-one equal protection claims

Equal protection claims have traditionally been limited to circumstances in which an individual is treated less favorably by the government because of his membership in a particular class. However, in 2000, the Supreme Court heard Village of Willowbrook v. Olech. In its decision, the Court clarified that the Equal Protection Clause also applies to arbitrary governmental decisions regardless of whether the decision is class-based. The Olech case involved a zoning decision in which a property owner requested that the municipality connect her property to the village's water supply. The village conditioned connection on the property owner's agreement to provide a 33-foot easement even though it had required only 15 feet from other property owners. The Supreme Court concluded that such arbitrary decisions, even though not class-based, violate the Equal Protection Clause. These claims are generally referred to as "class-of-one" equal protection claims.

Applying Olech in the public employment context

After the Olech decision, public employees began challenging employment decisions using the class-of-one equal protection theory. Federal courts split on whether the Equal Protection Clause was intended to cover employment claims that weren't class-based. In June, the U.S. Supreme Court resolved the conflict. In Engquist v. Oregon Department of Agriculture, the Court ruled that "such a 'class-of-one' theory of equal protection has no place in the public employment context."

In rejecting class-of-one equal protection claims, the Supreme Court based its decision on a number of commonsense factors. First, it recognized that employment decisions are often subjective and individualized, resting on a wide array of factors that are difficult to articulate and quantify. Given that subjectivity, nearly every employment decision could result in a lawsuit. The Court noted the significant costs that would be imposed on municipalities to defend against such claims if they were available.

The Supreme Court also recognized that to allow public employees to challenge every discharge decision based on a class-of-one equal protection theory would, in essence, eviscerate the employment-at-will doctrine. The general rule in Wisconsin is that a person's employment is at will. That means she can quit her job whenever she wants, and her employer can dismiss her for any reason that isn't illegal (e.g., based on a protected category such as gender or race). Allowing an at- will employee to challenge a discharge decision because she believes it was arbitrary or irrational would have the effect of employment no longer being at will.

The Supreme Court, in rejecting class-of-one equal protection claims in the public employment context, also recognized that the government as an employer has broader powers than the government as a sovereign entity. In other public employment situations, the government has greater latitude when regulating employee conduct. For example, a public employer can search a worker's desk without a warrant or dismiss an employee without due process (unless the employee can show she has a property or liberty interest).

Similarly, the Supreme Court has ruled that employee speech in the workplace is unprotected unless the employee is speaking as a citizen on a matter of public concern and the balance of interests weighs in the employee's favor. In the Engquist decision as well as in previous decisions, the Court has made it clear that government cannot function if every employment decision becomes a constitutional matter.

Bottom line

The Supreme Court's decision in the Engquist case is a commonsense recognition that public employees are, after all, employees. Although public employees don't check all of their constitutional rights at the door when they accept public employment, they are hired to do a job that often involves providing services to the public. Like private employers, public employers must have latitude to effectively provide services through their employees.

The Engquist decision is consistent with the Supreme Court's relatively recent decision in the Garcetti case. In that case, the Court ruled that speech by public employees on matters of public concern is not protected when the speech is, in essence, part of the employee's job responsibilities. The Engquist decision leaves intact traditional equal protection claims in which a public employee is treated differently than similarly situated employees because of membership in a particular class. Fortunately, it also removes the potential for employer liability every time a public employee is unhappy with an employment decision. Common sense prevailed ― this time.

Copyright 2008 M. Lee Smith Publishers LLC

WISCONSIN EMPLOYMENT LAW LETTER provides information about current employment law issues under Wisconsin and federal law. It is designed to alert you to legal issues and does not constitute legal advice. Questions about your company's problems and issues should be presented to the employment law attorney of your choice.