Monday, March 19, 2007

Stigma Plus Claims in the Workplace

Ross_runkel_b Ross Runkel at his Employment Law Blog has a very informative post on a case, Sciolino v. Newport News, 05-2229 (4th Cir. Mar. 12, 2007), that discusses one of the least understood constitutional protections for public employees.

It is the stigma plus claim that protects public employees from having damaging employment information spread about them publicly without first having the procedural protection of a "name-clearing hearing."  Such a claim is based on the notion that disparagement of employees without due process of law deprives them of a liberty interest by ruining their reputations and making it more difficult for them to find future employment.

Here is a little of what Ross has to say on this recent case discussing the stigma plus claim:

To state this type of liberty interest claim (often called a “stigma plus” claim), a plaintiff must allege that the charges against him (1) placed a stigma on his reputation; (2) were made public by the employer; (3) were made in conjunction with his termination or demotion; and (4) were false.

The issue in this case involved the second (“dissemination”) element. Sciolino argued that the mere possibility of publication is enough to satisfy this element. Not surprisingly, the employer argued that actual publication was required.

The trial court opted for a “likelihood of publication” approach. There is a split among the circuits on this issue - resulting in several different approaches. The court concluded that an employee sufficiently states the second element when he alleges that prospective employers are likely to see the stigmatizing allegations. The court noted that if actual dissemination were required, “the information would have already been communicated to a potential employer, the employee’s job opportunities foreclosed, and his reputation damaged before any possibility for a name-clearing hearing.”

I agree with Ross that because of the circuit split on this important public employment procedural due process issue, Supreme Court review could be around the corner.


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Dear Mr. Runkel,

I believe that the readers have been misinformed as far as the elements of Stigma Plus. First of all you are right that there must be a defaming statement. However you do not have to be a public employee you can be a citizen and unemployed. The one making the utterance must be a government employee acting under the color of state law, (see Wisconsin v Constantineau, and Valmonte v. Bane 2nd Circuit and Corbitt v. Anderson 10th Circuit). The defamation has to in some way foreclose the individual from working or cause him/her to loose their job. However the statement does not have to be true. The key element here is that the state actor must first offer adequate due process before there is a deprivation. So even if the allegation were true and there were no hearing offered the agrieved could bring suit in federal court as a civil rights action. (see Paul v. Davis, Siegert v. Gilley and Corbitt v. Anderson...[Davis had no claim because he was not deprived of any liberty interest] whereas in the case of Constantineau she was denied the right to buy liquor via a state liquor store sign making her out to be a drunk.

I believe publication is required or at least someway to demonstrate that there was a loss related to the publication threat. Without the loss of a liberty interest there is no federal cause of action, only a state court defamation claim would be available.

However if the courts do uphold Sciolino it will be a boon to the rights of the state and other workers which is sorely needed.

Layne Meacham

Posted by: Layne Meacham | Sep 3, 2008 5:09:06 PM

I made a mistake on the above. I meant to say that the defamation does not have to be false. Even if what the government is saying about you is true if they do not offer you adequate due process before there is a deprivation (or liklihood of a deprivation) the doctrine of stigma plus applies.

Posted by: Layne Meacham | Sep 10, 2008 3:03:00 PM

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