On February 27, 2008, the AAUP joined in an amicus brief (.pdf) filed in the U.S. Supreme Court by a coalition consisting of the AAUP, AFL-CIO, and the National Education Association. The amicus brief supported the appeal of petitioner Anup Engquist, a former employee of the Oregon Department of Agriculture (“ODA”), in a case against her former employer. Engquist’s case arose when she angered her supervisor in the ODA by reporting his abusive behavior to superiors. The supervisor retaliated by arranging a restructure within the ODA that resulted in Engquist’s discharge. Engquist sued the ODA, asserting, among other things, that the ODA had violated Engquist’s rights under the Equal Protection Clause of the Constitution by treating her differently from her co-workers without a justifiable rationale. This theory is known as an Equal Protection “class of one” claim, because it focuses on the employee as an individual rather than as a member of a “protected class” – i.e., a class defined by race, national origin, or gender. The theory was first accepted by the Supreme Court in 2000, in a case involving a city’s zoning decision. Since then, a number of federal courts have allowed public employees to use the theory in employment cases (though none has been successful).
Engquist won her case at trial and was awarded substantial compensatory and punitive damages. The ODA appealed, however, and the U.S. Court of Appeals for the Ninth Circuit reversed the verdict, concluding that the “class of one” Equal Protection theory should be limited to circumstances where the government acts as a regulator and not expanded to the realm of public employment decisions. The majority reasoned that the Equal Protection clause provides more protection against arbitrary government action to “ordinary citizens” than it does to “public employees.” The Ninth Circuit also expressed its concern that applying the Equal Protection clause to government employees would erode the state-employee “employment at will” doctrine and, in addition, would result in increased litigation.
The coalition’s brief asserts that public employees are entitled to Equal Protection rights against arbitrary government action and further argues that a “class of one” challenge may be the only method for a public employee to challenge an arbitrary or vindictive employment decision. The brief also addresses the Ninth Circuit’s concern that a flood of litigation might result from the extension of the Equal Protection “class of one” doctrine to government employees, contending that there is not a substantial risk of such a flood because of the limitations put on the doctrine.
Update: On June 9, 2008, the Supreme Court handed down its opinion (.pdf). The Court concluded in a 6-3 decision that “a ‘class-of-one’ theory of equal protection has no place in the public employment context.” The majority (through Chief Justice Roberts) reasoned that “there is a crucial difference . . . between the government exercising ‘the power to regulate or license, as lawmaker,’ and the government acting ‘as proprietor, to manage [its] internal operations,’” and added that when the government acts as employer, it has “far broader powers than does the government as sovereign.” The Court based this assertion on the fact that when the government acts as employer, it hires employees to carry out official duties with efficiency and integrity, and “the government’s interest in achieving its goals as effectively and efficiently as possible is elevated from a relatively subordinate interest when it acts as sovereign to a significant one when it acts as employer.” The majority analogized to other contexts in which the government has “greater leeway” in dealing with its own employees than it does in dealing with citizens at large, including the Fourth Amendment, Due Process clause, and First Amendment contexts; the Court called the public-employee speech cases, including Pickering and Connick, “particularly instructive.”
According to the majority, this precedent in the public-employee context established two main principles: “First, although government employees do not lose their constitutional rights when they accept their positions, those rights must be balanced against the realities of the employment context. Second, in striking the appropriate balance, we consider whether the asserted employee right implicates the basic concerns of the relevant constitutional provision, or whether the claimed right can more readily give way to the requirements of the government as employer.”
The Court acknowledged that the equal protection class-of-one claim had been recognized in the government-as-regulator context (beginning with Village of Willowbrook v. Olech, a 2000 Supreme Court zoning case), but distinguished that from circumstances in which the government acts as employer, stating that in Olech and similar cases, “what seems to have been significant . . . was the existence of a clear standard against which departures, even for a single plaintiff, could be readily assessed.” In Olech, for instance, the board consistently required a 15-foot easement, but arbitrarily subjected the plaintiff to a 33-foot easement. The Court continued: “There are some forms of state action . . . which by their nature involve discretionary decisionmaking based on a vast array of subjective, individualized assessments. In such cases the rule that people should be ‘treated alike, under like circumstances and conditions’ is not violated when on person is treated differently from others, because treating like individuals differently is an accepted consequence of the discretion granted. In such situations, allowing a challenge based on the arbitrary singling out of a particular person would undermine the very discretion that such state officials are entrusted to exercise.”
The majority hypothesized a traffic officer who singles out one person among many driving above the speed limit to receive a speeding ticket. As long as the speeding ticket was not based on considerations of race or sex, said the Court, there is no Equal Protection claim, because the traffic officer is exercising “what in its nature is a subjective, individualized decision.” The majority then contended that “this principle applies most clearly in the employment context, for employment decisions are quite often subjective and individualized, resting on a wide array of factors that are difficult to articulate and quantify. . . . Unlike the context of arm’s-length regulation, such as in Olech, treating seemingly similarly situated individuals differently in the employment context is par for the course.” Recognition of a class-of-one claim would be “simply contrary to the concept of at-will employment,” in which an employee “may be terminated for a good reason, bad reason, or no reason at all.” The Court acknowledged that Congress and all states have replaced at-will employment with some statutory protection, but held that “a government’s decision to limit the ability of public employers to fire at will is an act of legislative grace, not constitutional mandate,” and that the Equal Protection clause therefore could not provide additional protection for individual employees – particularly because Congress had already excluded some employees from federal employment protections, which “careful work” would be undone by extension of the Equal Protection Clause to class-of-one claims.
Finally, the majority invoked the specter of a flood of litigation, suggesting that if governmental employees needed to argue “only that they were treated by their employers worse than other employees similarly situated,” any personnel action “will suddenly become the basis for a federal constitutional claim.” The Court acknowledged that most of the claims would not prevail, because of the various elements of proof and the high burden of demonstrating that a government employment decision is not “rational,” but opined that the “practical problem” with permitting class-of-one claims in the employment context “is not that it will be too easy for plaintiffs to prevail, but that governments will be forced to defend a multitude of such claims in the first place, and courts will be obliged to sort through them in a search for the proverbial needle in a haystack.” Quoting Garcetti v. Ceballos (see above), the Court concluded that “the Equal Protection Clause does not require ‘this displacement of managerial discretion by judicial supervision.’”
In dissent, Justice Stevens (joined by Justices Souter and Ginsburg) criticized the majority for using a “meat-axe” rather than a “scalpel” to perform “surgery . . . to prevent governments from being forced to defend a multitude” of claims. The dissent analogized Olech and Engquist, noting that as in Olech, “Engquist alleged that the State’s actions were arbitrary and irrational. In response, the State offered no explanation whatsoever for its decisions . . . . Under our reasoning in Olech, the absence of any justification for the discrimination sufficed to establish the constitutional violation.” The dissent also distinguished between discretionary authority, which Stevens agreed employers must be free to exercise, and an “arbitrary decision.” “A discretionary decision represents a choice of one among two or more rational alternatives. . . . There is therefore no need to create an exception for the public-employment context in order to prevent these discretionary decisions from giving rise [to] equal protection claims.” As the dissent noted, the traffic officer in the majority’s hypothetical was doing just that – exercising a discretionary choice among a number of speeding drivers, all of whom could have been pulled over; an employer could similarly exercise reasonable judgment among employees to be terminated. However, the dissent argued, “instead of using a scalpel to confine so-called ‘class of one’ claims to cases involving a complete absence of any conceivable rational basis for the adverse action and the differential treatment of the plaintiff, the Court adopts an unnecessarily broad rule that tolerates arbitrary and irrational decisions in the employment context.” Finally, the dissent rejected the majority’s contention that at-will employment remains the norm, and criticized the Court for “misconstru[ing] the Constitution in order to make it even easier to dismiss unmeritorious claims.”