Alaska Employment Law

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Introduction

The United States Supreme Court issued a new opinion on June 9, 2008, addressing the so-called “class of one” claim in the context of public employment law. This summary briefly reviews the opinion and its significance.

The Case

Anup Engquist worked for the Oregon Department of Agriculture. Following a layoff, she filed suit alleging employment discrimination and violation of equal protections rights. With one exception, all of her claims were dismissed by the district court or rejected by the jury. The one exception was Engquist’s equal protection claim under the Fourteenth Amendment. Engquist alleged that she was intentionally treated differently than all other similarly situated employees, and that such treatment stated a claim under the Fourteenth Amendment’s Equal Protection Clause. Her claim was not based on any protected classification or group. Instead, Engquist argued that a claim existed regardless whether the different treatment was based on her membership in any particular protected class.

The “class of one” theory reached its high-water mark with the Court’s decision in Village of Willowbrook v. Olech, 528 U.S. 562 (2000), a real property case involving a decision by a local zoning board that placed more onerous conditions on a property owner’s ability to access an existing water supply. The Court allowed a class of one theory to proceed in that case because of its regulatory context. The Village was not rendering a decision concerning its internal affairs, but instead was applying a law of general applicability to citizens at large in an arbitrary, irrational manner.

The Ninth Circuit reversed by a 2-1 split. The court held that a “class of one” theory could not be alleged for employment law purposes under the Equal Protection Clause. The court reasoned that such a theory would subject public employers’ employment-related decisions to an inordinate level of scrutiny that was incompatible with law, policy, or precedent. The dissenting Judge, Judge Reinhardt, argued that existing precedent allowed a “class of one” claim under the Equal Protection Clause in other contexts, and that therefore it should be recognized in the public employment law context, too.

The Opinion

The United States Supreme Court agreed with the Ninth Circuit and affirmed by a 6-3 vote. Chief Justice Roberts wrote for the majority. The majority observed that there was a clear distinction between the government acting as a regulator and the government acting as a proprietor managing its own affairs. The majority interpreted precedent as allowing the government “significantly greater leeway in its dealings with citizen employees” than when the government was dealing with “citizens at large.” Drawing upon First Amendment public employment cases, the majority emphasized what it felt was a “common-sense realization that government offices could not function if every employment decision because a constitutional matter.” The majority stressed that a claim based on a protected classification would still remain viable. Its concern with Engquist’s claim, however, was that it opened the door to too many potential claims. Implied in the majority’s concluding paragraph was the concept that public employees typically enjoy an array of procedural and substantive rights unavailable to other citizens, and that these rights effectively curb any significant abuse of power by public employers.

Justice Stevens dissented, joined by Justice Souter and Justice Ginsburg. The dissent argued that the “Equal Protection Clause protects persons, not groups” and criticized the majority for using a “meat-axe” to solve a problem better suited for a nuanced scalpel. The dissent recognized that some limitations might be necessary to prevent unnecessary intrusions upon the government’s exercise of its discretion in ordinary employment matters. Nevertheless, the dissent concluded that “decisions unsupported by any rational basis” should be subject to attack on equal protection grounds. Justice Stevens noted:

Instead of using a scalpel to confine a 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.

The dissent’s stance mirrors the oral argument transcript in which it appeared as if Engquist’s lawyer could find no refuge on the Bench.

Significance and Recommendations

Commentators will probably report this case as reflecting an erosion of employee rights. However, in my opinion, the result here was not surprising primarily because of the potential implications that would arise from recognizing a “class of one” theory for public employees challenging employment-related decisions. This is especially true in a workplace where the concept of “adverse employment action” has expanded. Indeed, even the dissent impliedly acknowledged that some limitations must be placed on potential equal protection claims.

Although a “class of one” theory may not be viable, other theories affecting protected classifications remain available under the Equal Protection Clause. Public employers should not view Engquist as giving them a green light to make decisions without regard for the potential consequences. Public employers need to carefully review and evaluate their own policies when making any decision that adversely affects employees’ rights. Public employers also need to be sure to recognize substantive and procedural due process rights.

Conclusion

This legal summary is for informational purposes and is not intended as legal advice. Employers with questions or seeking additional information should confer with counsel.