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May a public employee be fired just out of spite?
That, in essence, was the question before the U.S. Supreme Court last week in a case being watched closely by groups representing teachers and school boards.
The question assumes, as in the case of a food-standards specialist for the state of Oregon whose job was eliminated amid tensions with her boss, that the worker isn’t protected by a union contract or as a member of a group shielded from employment discrimination based on race, sex, or other protected classes.
The issue before the justices in Engquist v. Oregon Department of Agriculture (Case No. 07-474) involves whether public employees may press federal lawsuits under the 14th Amendment’s equal-protection clause when an adverse job action is based on subjective or malicious reasons targeted only at them. Such a suit is called a “class of one” claim.
“What about: He didn’t like him?” Justice Stephen G. Breyer wondered about a hypothetical spiteful boss. “I’m the supervisor; I didn’t like him.”
Neal Katyal, a professor at Georgetown University Law Center who was arguing the case for the Oregon worker, said an adverse job action against that worker would pass muster under the equal-protection clause as long as the action had a rational basis, such as being “related to government efficiency.”
The National Education Association joined with several other unions in filing a friend-of-the-court brief on the side of the worker. The brief argues that a federal appeals court incorrectly barred class-of-one claims for public employees under the equal-protection clause partly out of an unwarranted fear that allowing such claims could turn everyday job disputes in public agencies into federal cases.
The National School Boards Association, meanwhile, filed a brief on Oregon’s side that expresses concern that federal courts “will become super personnel departments, responsible for addressing every grievance made by school district employees across the country.”
No Flood of Claims
The Bush administration expressed the same concern during the April 21 oral arguments.
“The problem with those [class-of-one] claims is that they would constitutionalize routine employee grievances and impose a for-cause requirement on public employers, notwithstanding the long tradition of at-will public employment,” said Lisa S. Blatt, an assistant to the U.S. solicitor general, who was arguing on Oregon’s side.
The justices and the lawyers debated whether most state and local government employment was truly “at will,” meaning that workers can be dismissed without cause for virtually any nondiscriminatory reason. Teachers in many states are protected first by their union contracts, and many states have civil-service procedures governing dismissals.
But at-will employment prevails for many government workers, and Justice Anthony M. Kennedy expressed worry that ruling for the worker in the Oregon case would create “a national for-cause employment system. You can only be … fired for cause.”
Mr. Katyal pointed out that two federal circuit courts had recognized class-of-one claims for public employees for more than 25 years, and that “it’s the law of the land” in nine of the 12 geographic circuit courts.
“We haven’t had that entire flood [of claims], nor have we had the harm to at-will employment,” he said. “Plaintiffs aren’t going to bring these claims when they know they are so hard to win.”
Justice Kennedy and his colleagues aggressively questioned both sides.
“It seems to me that you want us to write an opinion that says there are some instances where the government can act arbitrarily and unreasonably,” Justice Kennedy said to Janet A. Metcalf, an assistant attorney general of Oregon, who was arguing the state’s case.
“We would ask you to write an opinion … that says that, within the public-employment context, there are no class-of-one equal-protection claims,” Ms. Metcalf said.
Last week was the high court’s last session for oral arguments of the current term. On April 23, the justices considered another employment case that has drawn the interest of the National School Boards Association.
In Meacham v. Knolls Atomic Power Laboratory (No. 06-1505), the court will rule on a particular type of claim under the federal Age Discrimination in Employment Act.
The case involves a group of workers laid off from a federally contracted research facility, who allege an illegal disparate impact because 30 of 31 workers slated for the layoff were over 40 years old, which is the age when employees first come under the protection of the ADEA.The legal question involves whether the workers or the employer bear the burden of persuasion in court on whether the disparate impact on the older workers could be justified based on reasonable factors other than age.
The NSBA takes virtually every opportunity it can to remind the court that school districts are large employers with a stake in many cases involving job-discrimination law.
“Collectively, the number of people school districts employ is greater than Wal-Mart and greater than the Department of Defense,” Thomas E.M. Hutton, a senior staff lawyer with NSBA, said in an interview. “So these employment cases are important to schools, and schools are important to how this law is formed.”
In a friend-of-the-court brief filed on the side of the employer in the age-discrimination case, the NSBA noted that school districts were adopting flexible policies such as early-retirement programs, district reorganizations involving the redistribution of personnel, and other actions that could have a disparate impact on their older workers.
Both cases are expected to be decided by the end of the court’s term in late June.
A version of this article appeared in the April 23, 2008 edition of Education Week as High Court Hears Closely Watched Employment Case