A recent unpublished decision raises interesting Fourteenth Amendment questions.
The first is whether an applicant who has been ranked higher than other applicants in a phone interview and highest in the in-person interview has a property interest in the job under the Fourteenth Amendment. As you may know, the Fourteenth Amendment protects property from being taken from anyone by the state without due process, and in the employment context, due process requires a hearing where the employee can cross-examine accusers and be represented by an attorney.
The applicant making such a claim has an uphill climb. He or she must first show that the property right of “being hired” is present in a state statute, regulation, city ordinance, or an express or implied contract. If any of the regulations, ordinances, or practices place substantive restrictions on a government manager’s ability to make personnel decisions, then the employee could have a property interest protected by the Fourteenth Amendment. Such restrictions do not appear to exist in general, so this would have to be unique to a county, municipality, or some other form of local government.
To avoid such claims, public-sector employers should not pass ordinances or have language in their charters that severely limits a decision-maker’s authority to hire the best person for the job based on particular factors.
The case also examined whether the Fourteenth Amendment Equal Protection Clause protects an applicant who, as a part of an application process that gathers information about applicants’ ability to speak foreign languages, divulges his or her nationality or ethnicity.
The Equal Protection Clause is violated when a governmental entity makes class-based decisions on employment, treating groups of individuals differently. To prove a claim for an equal protection violation, an applicant must prove that the entity discriminated against him or her on the basis of a suspected class, which would include national origin. Intentional discrimination can be demonstrated if a law or policy:
- Expressly classifies persons on the basis of race or gender;
- is applied in a discriminatory fashion; or
- is applied in a manner that was motivated by discriminatory animus and results in a discriminatory effect.
Courts have decided that an online employment system that asks applicants whether they are bilingual and, if so, in what language, does not itself violate the Equal Protection Clause. But if a “yes” answer resulted in extreme vetting or profiling, preventing the bilingual applicant from moving forward in the application process due to nationality, an Equal Protection Clause violation may have occurred. The fact that a particular language is spoken is, by itself, not enough.
Of course, this teaches public employers that they should treat all applicants the same in the process and not separate them out due to the language they speak, unless there is a business reason for doing so. For example, if you need a Spanish-speaking employee, then you could legally separate out Spanish-speaking applicants to be interviewed, based upon this particular skill.
As always, please don’t hesitate to call us for guidance.