Know Your Rights
Supreme Court Curtails Equal Protection Rights
By JAMES A. BROWN

One advantage public employees hold over their private-sector counterparts is certain Constitutional protections in the workplace. Unfortunately, these same Constitutional rights are of limited value because they are often adjudged inferior to the government's interest in promoting "efficiency." See "Restricting Free Speech," July 21, 2006. Thus, we can fairly ask, to paraphrase the late comedian George Carlin: "Are these so-called Constitutional rights really 'rights' if they can be taken away from us?"

James A. Brown is a partner in the law firm Brown & Gropper, LLP. He can be reached at (212) 366-4600 and at jabrownlaw@aol.com.

Today's column highlights Engquist v. Oregon Department of Agriculture, a United States Supreme Court decision rendered last month. Engquist effectively bars public employees from filing certain claims alleging violations of the Equal Protection Clause of the United States Constitution. The decision represents a setback for public employees. In fact, in the words of a dissenting Supreme Court justice, Engquist takes a "meat axe" to the equal-protection rights previously enjoyed by public employees.

Constitutional Rights

As explained in prior columns, public employees are entitled to certain workplace Constitutional protections by virtue of the fact that they work for the government. Simply stated, the Constitution and its Bill of Rights offer protection against the excesses of the government and not those of private industry.

The Constitutional rights commonly invoked by public employees include free-speech rights guaranteed by the First Amendment; procedural due process (i.e. the right to be heard before one's employment is terminated) and "equal protection" as set forth in the Equal Protection Clause of the Fourteenth Amendment.

An equal-protection claim alleges that a public employee has been treated differently from other similarly situated employees. Most equal-protection claims rely on the employee's "protected class" status. In other words, a public employee claims an equal-protection violation because of disparate treatment based on age, race, gender, disability, etc.

Arbitrary, Vindictive Conduct

Engquist addresses the other kind of equal-protection claim which makes no reference to any protected class and alleges only that a public employer took an adverse action without any rational basis. These latter claims are often referred to as "class of one" claims.

In Engquist, the petitioner was laid off from her job within the Oregon Department of Agriculture. She then commenced a lawsuit alleging, in part, violations of the Equal Protection Clause. One equal-protection claim stated that she suffered discrimination based on her race, sex and national origin. The other equal-protection claim was based on a "class of one" theory; specifically, petitioner alleged (without any reference to a protected class) that she was treated differently from similarly situated employees for "arbitrary, vindictive, and malicious reasons."

The district court, recognizing the "class of one" theory as a viable claim, ruled in petitioner's favor. However, after the jury returned its verdict in petitioner's favor, the appeals court reversed. It found no basis existed for such "class of one" claims when government acted as a public employer.

On appeal, the Supreme Court concurred that "class of one" equal-protection claims are inconsistent with the role of government as public employer. The court ruled that a public employer, by its nature, must exercise some "discretionary authority based on subjective, individualized determinations." According to the Court, government should not be subject to potential lawsuits each time it treats an employee differently unrelated to some larger classification based on race, gender, age, disability, etc.

Class of One Gone

Clearly, the high court in Engquist was also troubled that the "class of one" theory undermines the "employment-at-will" doctrine (which confers upon employers broad discretion to terminate employees). Yet the court's concern seems misplaced given that the employment-at-will doctrine is inapplicable to public employees. The doctrine does not apply because public employees enjoy job protection based on the civil service laws together with the whistleblower and anti-discrimination statutes. The "class of one" theory was merely another form of job protection.

The demise of "class of one" claims deprives public employees of a means to challenge arbitrary and irrational decision-making based on the Constitution's Equal Protection Clause. Once again, we see that "rights" are not necessarily lasting. We are also reminded that attention must be paid to the composition of the Supreme Court.