Heffernan v. City of Paterson (2016): A New Element in Constitutional Tort Law—It’s Not Necessarily What the Public Employer Did, but What It Intended to Do That Counts

Heffernan v. City of Paterson, Mayor Jose Torres, Police Chief James Wittig, and Police Director Michael Walker modified and expanded constitutional tort law by (a) authorizing suits against public officials, employees, and municipalities for unconstitutionally retaliating against personnel on the mistaken belief that they engaged in constitutionally protected speech and (b) allowing such suits to proceed even when those personnel deny having exercised First Amendment rights. Heffernan also affords procedural protection to public employees disciplined for what was incorrectly considered protected speech. The implications for public personnel administration are (a) potentially greater difficulty for personnelists and managers to receive qualified immunity in summary judgments, (b) potential liability for a new type of constitutional tort with uncertain boundaries, and (c) and, unexpectedly, judicial intrusion into personnel administration by judges’ second-guessing the reasonableness of managerial actions based on erroneous assessments of the constitutionality of employees’ speech. Consequently, public personnelists and managers should closely follow Heffernan’s progeny to protect rights and avoid suits.

Reverse Discrimination and Remedial Affirmative Action in Employment

Public sector employers are governed by two standards in the design and application of voluntary remedial affirmative action plans: Title VII of the Civil Rights Act of 1964 (as amended) and the equal protection provisions of the Constitution. Since these plans are subject to challenge under reverse discrimination claims, they must be carefully designed to avoid vulnerability to such charges under either a statutory or constitutional claim. However, the Supreme Court has interpreted the legal acceptability of voluntary affirmative action differently under the statute than under the Constitution. Title VII allows a more permissive standard than does the 14th or 5th amendments. An analysis and comparison of Court rulings under both standards illustrate these differences. To avoid successful challenge of a voluntary remedial plan, a public employer must abide by the more conservative criteria of the Constitution. In so doing, some kinds of remedial action available to those in the private sector is barred to their public sector counterparts. Further Court rulings may clarify these apparent differences.

Anti-Nepotism Rules: The Legal Rights of Married Co-Workers

Anti-nepotism rules in public organizations have led to law suits based on anti-discrimination statutes and the U.S. Constitution. Plaintiffs claim they are entitled to work with their spouses if they are qualified employees. Employers, on the other hand, defend anti-nepotism rules as a business necessity, arguing that married co-workers are a potentially disruptive influence in the office. A review of federal and state court decisions suggests that married co-workers rarely prevail in such cases. In this area of civil and constitutional litigation, public employer liabilities appear to be limited to situations where restrictions are unreasonably broad.