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Monday, June 9, 2008

Class of None

In yet another case with implications for workers across the country, the Supreme Court today released Engquist v. Oregon Department of Agriculture, a 6-3 decision limiting public employees’ ability to sue for workplace discrimination. Chief Justice Roberts authored the majority opinion, joined by Justices Scalia, Kennedy, Thomas, Breyer, and Alito. The ruling carves out an exception to the Equal Protection Clause for individual public employees who claim they were intentionally treated differently than other similarly situated employees, even though the employer had no “rational basis” for the differing treatment. Nine federal appeals courts had previously ruled that this Equal Protection right—called a “class of one” claim because it does not rely on proving discrimination based on membership in a class like race, sex, religion, or national origin—applied to employees in the public sector.

In support of today’s decision, Chief Justice Roberts says, “we have often recognized that government has significantly greater leeway in its dealings with citizen employees.” He attempted to distinguish contrary Supreme Court precedent, pointing to the difference between the government in its role as a regulator and the government acting as an employer. In throwing out Ms. Engquist’s jury award and exempting public employers from this kind of discrimination claim, Chief Justice Roberts said the exception was necessary to stop “undue judicial interference.” The majority’s reasoning relied heavily on a familiar legal bogeyman—opening the proverbial floodgates to lawsuits by aggrieved workers.

But three justices were not swayed by fears of floodgates. Justice Stevens, joined by Justices Souter and Ginsburg, warned in dissent, “In sum, there is no compelling reason to carve arbitrary public-employment decisions out of the well-established category of equal protection violations when the familiar rational review standard can sufficiently limit these claims to only wholly unjustified employment actions.” The dissenters criticized the majority for “refus[ing] to give effect to the congressionally mandated remedy” and “carv[ing] a novel exception out of state employees’ constitutional rights.” Together with the Court’s decision in Garcetti two years ago, limiting First Amendment protection for government whistleblowers, Justice Stevens points to a recent trend of decisions undermining the rights of public employees. He counters the majority’s “floodgate” justification saying, “Even if some surgery were truly necessary to prevent governments from being forced to defend a multitude of equal protection 'class of one' claims, the Court should use a scalpel rather than a meat axe.”

It should not surprise court-watchers that the most conservative justices voted to limit the rights of workers. Justice Alito, for example, had a long and reliable history of doing just that before he was even nominated to the High Court. But the reasoning behind the decision contradicts the method of constitutional interpretation espoused by the Court’s “textualists.” As the dissent points out, the majority’s decision “creates a new substantive rule excepting state employees from the Fourteenth Amendment’s protection against unequal and irrational treatment at the hands of the State.” Remind us where the words “except public employees” appear in the Constitution?

Many of these same justices refused to consider the practical effects of their decisions last term when they eviscerated civil rights laws and the promise of Brown v. Board of Education in Ledbetter and the school integration cases. Perhaps the most important lesson from this decision is that real world consequences only matter when it’s convenient.

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