LawyersUSA

WASHINGTON – In a case that could alter the constitutional protections of millions of public employees, the U.S. Supreme Court is set to rule whether the Equal Protection Clause allows them to bring so-called "class of one" claims – employment discrimination claims brought by employees who do not claim to be members of a protected class.

Yesterday, the justices heard oral arguments in Engquist v. Oregon Dept. of Agriculture, No. 07-474, which stems from a suit brought by two former Oregon state employees who claim that their equal protection rights were violated when they were fired by their white male supervisors.

The plaintiffs, a Latina woman and an Indian woman, claimed they were treated arbitrarily and irrationally different than other employees in violation of the Equal Protection Clause, though they did not claim to be protected class members.

The plaintiffs won a jury award of $175,000 in compensatory damages and $250,000 in punitives on the equal protection claim as well as other claims.

But the 9th Circuit reversed the verdict on the constitutional claims, rejecting the "rule of one" cause of action.

The plaintiffs had relied on the 2000 Supreme Court decision in Village of Willowbrook v. Olech, (528 U.S. 562) in which the Court allowed a city resident – who claimed that town officials intentionally treated her disparately from other similarly situated individuals – to make an equal protection claim, even though there was no rational basis for the dissimilar treatment.

The 9th Circuit held that the Court's per curiam opinion in that case was "too slender a reed" to support "class of one" equal protection claims, although other circuits have allowed the cause of action.

In the current case, the Supreme Court could now strike down the "class of one" cause of action completely, expressly allow it or limit the boundaries of the claim in some way – the same way the Court has, for example, limited the First Amendment claims that public employees can assert.

Cause of action 'necessary'

At oral argument, Neal Katyal, a professor at Georgetown University Law School who argued for the employees, said the "class of one" cause of action is necessary to protect public employees who are intentionally treated unfairly based on intentional ill will.

"The 9th Circuit held that no discrimination against a public employee is prohibited by the Equal Protection Clause unless the targeted person is a member of a suspect class or exercises a fundamental right," Katyal said. "This theory is contrary to the Constitution's text. It is inconsistent with this Court's precedents, and it is unworkable and unnecessary."

But Justice Antonin Scalia wondered if – even if the Court applied its earlier decision in Olech – the plaintiffs would be able to proceed.

"Rational basis review normally doesn't inquire into the actual motive" of the employer, Justice Scalia said. "We simply ask: 'Could there have been a rational basis for this?' Are you willing to abide by that test?"

Katyal said that would be an analysis for a fact finder.

Chief Justice John Roberts, Jr., asked if expanding the "class of one" rule would open litigation floodgates.

"Doesn't that have the effect of adding an equal protection claim to every violation of the law?" Chief Justice Roberts asked. "You have a Fourth Amendment search and seizure claim, everyone else was treated legally and I was [treated illegally], so it's an equal protection violation?"

"That is a problem, I think, under this Court's decision in Olech generally," Katyal said before Justice Anthony Kennedy interjected.

"Do you think Olech was wrongly decided?" asked Justice Kennedy.

"I do not," Katyal said.

"I don't find anything in Olech that says every action that does not have a reason is constitutionally infirm," Justice Kennedy added.

Too broad

For the state, Janet A. Metcalf, assistant attorney general of Oregon, argued that the limited opinion in Olech should not open a new, broad cause of action.

"Federal court is simply not the forum in which to second-guess everyday decisions made by public employers," Metcalf said.

Some justices, including Justice Ruth Bader Ginsburg, wondered if eliminating the cause of action completely would leave some employees with no means of redress from discriminatory actions.

"The 9th Circuit decision would rule out the case where an employee says: 'I was the most qualified person for this position by far, but the supervisors took a bribe from a rich uncle to promote somebody else,'" Ginsburg said.

"That would be out as an equal protection claim," Metcalf responded. "There undoubtedly would be other avenues" for redress.

"The scapegoat case, too, would be out?" Justice Ginsburg asked.

"Yes, it would," Metcalf said.

"We have said there is a constitutional claim if the reason the person was not hired was that the person did not belong to the political party that the hiring person belonged to," Justice Scalia said. "You can't turn down somebody because she's a Democrat or a Republican."

But Metcalf said if the Court does not eliminate the cause of action, it should at least limit it to only a handful of cases.

"Our formulation [of] the test is that there should be no such thing as a 'class of one' equal protection claim in the public employment context, with certain exceptions, [including] exercising a fundamental right, membership in a suspect class, perhaps other criteria such as the ones you mentioned," she said.

Lisa S. Blatt, assistant to the Solicitor General who argued for the U.S. as amicus curiae on behalf of Oregon, said allowing the claim would leave public officials unable to make personnel decision without fear of lawsuits.

"They would constitutionalize routine employee grievances and impose a for-cause requirement on public employers, notwithstanding a long tradition of at-will public employment," Blatt said.

"So the Equal Protection Clause doesn't apply" to public employment decisions, Chief Justice Roberts asked.

"Sure it applies," Blatt said. "It just doesn't give you the right to collect what this plaintiff did – punitive and compensatory damages based on residual ill will."

A decision is expected later this term.

Questions or comments can be directed to the writer at: kimberly.atkins@lawyersusaonline.com