Supreme Court Rejects "Class of One" Equal Protection Claim by Public Employee

In a protective move for public employers, the United States Supreme Court has decided that public employees may not bring "class of one" Equal Protection claims for employment grievances. Engquist v. Oregon Dep't of Agriculture, 2008 WL 2329768, No. 07-474, ___ S. Ct. ____ (June 9, 2008). In a 6-3 opinion by Chief Justice John Roberts, the Court rejected an argument that the "class of one" Equal Protection analysis developed in Village of Willowbrook v. Olech, 528 U.S. 562 (2000) extended to the public employment sphere.

In Engquist, a female, nine-year Oregon Department of Agriculture employee, Anup Engquist, had repeated difficulties with a male coworker, which resulted in their immediate supervisor sending the male coworker to diversity and anger management training. In 2001, a new manager assumed responsibility for Engquist, her male coworker, and their immediate supervisor. When both Engquist and the male coworker applied for a vacant managerial position, their new supervisor chose the male coworker over her. Later that year, the immediate manager's position was eliminated and eventually Engquist's position was eliminated as well. Engquist ultimately declined a demotion, which resulted in her being laid off.

After being laid off, Engquist sued under various theories, including federal antidiscrimination statutes and the Equal Protection and Due Process Clauses of the Fourteenth Amendment. Her Equal Protection claim included not only race-, sex-, and national origin-based discrimination theories but also a "class-of-one" theory based on arbitrary reasons not tied to membership in any protected class. Engquist's "class-of-one" Equal Protection claim went to a jury, which specifically found that she had been treated "differently than others similarly situated … without any rational basis and solely for arbitrary, vindictive, or malicious reasons." Over dissent, the Ninth Circuit reversed the jury's verdict on her "class-of-one" Equal Protection claim, holding that such a claim did not apply to employment decisions by public employers. 478 F.3d 985 (9th Cir. 2007).

The Supreme Court agreed with the Ninth Circuit and affirmed. Noting the "significantly greater leeway" of the government to regulate its employees than its citizens at large, the Court drew specific parallels between a public employer's right to limit speech by public employees under the First Amendment and its right to make employment decisions free from rational basis review. In doing so, the Court specifically indicated that it must "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 characterized its prior decision in Olech, involving a zoning board's unique determination of the size of an easement over one particular property, as simply an application of the principle that an arbitrary classification cannot stand without a rational basis. Therefore, while validating the "class of one" analysis developed in Olech, the Court held that the concept did not transfer to the public employment context because the government as employer is entitled to make subjective and individualized employment decisions free from rational basis review. However, the Court noted the continued validity of Equal Protection analysis to class-based government employer decisions, for instance, mandatory retirement ages and distinctions between teachers who completed continuing education and those that did not. The Court concluded that ratifying a "class-of-one" theory of Equal Protection in the context of public employment would impermissibly "constitutionalize the employee grievance" when public employees already had "a variety of protections from just the sort of personnel actions" at issue in the case.

The dissent, authored by Justice Stevens and joined by Justices Ginsburg and Souter, criticized the majority's decisions to "except[] state employees from the Fourteenth Amendment's protection against unequal and irrational treatment at the hands of the State." Attributing the majority's position to "fear that governments will be forced to defend against a multitude of 'class of one' claims unless the Court wields its meat-axe," the dissent noted that only 150 or so "class-of-one" public employment claims had been filed in the federal courts since Olech. The dissenting Justices saw "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."

The Supreme Court's decision in Engquist overrules contrary precedent in the First, Second, Third, Fifth, Sixth, Seventh, and Tenth Circuits in which those courts of appeals validated or assumed the existence of "class of one" Equal Protection challenges in the public-employment context. While the Supreme Court's holding now protects public employers from such "class-of-one" Equal Protection claims, public employers are nonetheless cautioned that they remain subject to various state and federal laws relating to the employment relationship and that no other constitutional rights are impacted by the decision.