For many years, the Supreme Court has recognized a so-called “class of one” theory in discrimination cases. Normally, discrimination claims under the Constitution allege that an individual has been treated differently because of the individual’s presence in a protected class such as race, gender, or religion, or because the individual has engaged in constitutionally protected activities such as free speech. An exception to that rule has existed where a constitutional equal protection claim can in some circumstances be sustained even if the individual has not alleged class-based discrimination, but instead claims that she has been irrationally singled out as a so-called “class of one.” To meet the burden of establishing a “class of one” case, an individual must show that he or she has been “intentionally treated differently from others similarly situated and that there is no rational basis for the difference in the treatment.”

The case that produced a fundamental shift in the law arose when an employee of the Oregon Department of Agriculture claimed she was being discriminated against simply for arbitrary, vindictive, and malicious reasons. When a jury found in the employee’s favor and awarded her $425,000 in damages, the State of Oregon appealed to the Supreme Court. The Court found that the “class of one” theory could not be asserted under any circumstances by public employees in lawsuits arising out of their employment.

The basis for the Court’s opinion is a clear continuation of its recent holdings limiting any special rights that public employees have arising out of the fact that their employers are governmental bodies subject to the Constitution. The rationale of the Court in the Oregon case was that “the class of one theory of equal protection – which presupposes that like individuals should be treated alike, and that to treat them differently is to classify them in a way that must survive at least rationality reviewed – is simply a poor fit in the public employee context. To treat employees differently is not to classify them in a way that raises equal protection concerns. Rather, it is simply to exercise the broad discretion that typically characterizes the employer-employee relationship.

“Recognizing the sort of claim brought here could jeopardize the delicate balance governments have struck between the rights of public employees and the government’s legitimate purpose in promoting efficiency and integrity in the discharge of official duties, and in maintaining proper discipline in the public service. In concluding that the class of one theory of equal protection has no application in the public employment context – and that is all we decide – we are guided, as in the past, by the common-sense realization that government offices could not function if every employment decision became a constitutional matter.”

Engquist v. Oregon Department of Agriculture, 128 S.Ct. 2146 (2008).

This article appears in the September 2008 issue