Monday, March 19, 2007
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.