What’s Wrong with Anti-Discrimination Law

Written by Rebecca Zietlow on November 12th, 2008

sdn.jpgLast term in Engquist v. Oregon Department of Agriculture, the U.S. Supreme Court held that a state employee could not bring an Equal Protection claim to challenge her employer for treating her unfairly.  Anup Engquist claimed that her Equal Protection rights were violated because her employer had no rational reason for treating her poorly and constructively firing her.  Despite the fact that Engquist’s employer admitted that there was no performance related reason for demoting her, the Court held that she had no Equal Protection claim.  Engquist had relied on the Court’s recent decision in Village of Willowbrook v. Olech in which the Court had held that plaintiff could prevail in a “class of one” Equal Protection claim if she could show that the government had treated her unfairly and arbitrarily.  The Engquist Court distinguished Olech because that case involved a challenge to a city’s zoning decision.  Chief Justice Roberts explained, “There are some forms of state action . . . which by their nature involve discretionary decisionmaking.”  According to Roberts, employment related decisions fall within that category.

The Court’s ruling in Engquist is not surprising.  As Roberts pointed out, our system of employment law is based on “employment at will” – your employer can fire you for any reason, or for no reason at all.  If Anup Engquist had a cause of action, that would arguably invite courts to second guess numerous employment related decisions and could undermine our “employment at will” system.  Yet Engquist was a divided decision, and as Justice Stevens pointed out in his dissent, it is the first time that the Court has articulated such a large exception to civil rights suits based on the content of the suit.  As Stevens argued, the Court’s concern about “floodgates” is questionable because only state employers who could not give any rational reason whatsoever would be liable for suits like Engquist’s.  Engquist’s case illustrates not only the basic problem with our system of employment law, but also the most serious flaw in the Court’s Equal Protection jurisprudence.

My friend and colleague Joe Slater claims that the “employment at will” system is the cause of a number of doctrinal erros and inconsistencies in employment and labor law.  Engquist’s case well illustrates Slater’s point.  Engquist was clearly treated unfairly – her employer admitted it.  Yet under our system of employment law, she had to prove that her unfair treatment was motivated by discriminatory animus against her on the basis of one of her immutable charateristics.  Engquist originally claimed that her employer discriminated against her on the basis of race, sex and national origin.  Those claims were strong enough to get her a jury trial, but the jury wasn’t convinced that her unfair treatment was based on one of those characteristics.  Without understanding why Engquist was treated so poorly, the jury found in her favor on her “class of one” claim.  After the Supreme Court’s decision, an employee like Engquist will be completely without recourse as long as her employers conceal the reason why they fire her.

Anup Engquist’s case thus highlights one of the biggest flaws in the Court’s Equal Protection jurisprudence – the requirement that a plaintiff must show that defendant intended to discriminate based on plaintiff’s immutable characteristic in order to win a claim.  In today’s post Archie Bunker world, few supervisors openly discriminate based on race, gender or national origin.  Instead, numerous female workers, and workers of color of both genders, will simply be left to wonder, over and over, why their supervisor passed them over for the choice assignment or the promotion that they deserved, even eventually fired them, without being able to do anything about it.


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