The case presented to the Supreme Court by Engquist, however, differed from Olech in signifiacnt regard. In Enquist, the petitioner, Anup Enquist, was an employee of the Oregon Department of Agriculture (“ODA”), where she worked as an international food standards specialist. Engquist alleged that another ODA employee, Joseph Hyatt, made repeated attempts to harass her. In 2001, Hyatt was promoted to a supervisory position, despite some indications that Enquist may have been more qualified. After Hyatt attained the supervisory position, Engquist alleged that he continued to harass her, and a few months after his promotion, Hyatt, together with the Assistant Director of ODA, fired Engquist, citing budgetary reasons. Engquist, however, alleged that there was no credible justification for dismissing her instead of other ODA employees.

In 2002, Engquist brought suit in federal court against ODA. In her complaint, she included an equal protection claim, asserting that she had been mistreated and fired “for arbitrary, vindictive, and malicious reasons.” In effect, Engquist argued that the Equal Protection Clause forbids public employers from irrationally treating one employee differently from others similarly situated, regardless of whether the different treatment is based on the employee’s membership in a particular class. The District Court, when deciding a motion for summary judgment filed by ODA, held that Engquist could maintain a class-of-one claim by showing “that [ODA's] actions were spiteful efforts to punish her for reasons unrelated to any legitimate state objective.” The District Court also concluded that, “[a]s with any equal protection claim, plaintiff must also demonstrate that she was treated differently than others who were similarly situated.” At trial, the jury ultimately returned a verdict in favor of Engquist on her class-of-one claim.

The ODA appealed the District Court's decision, and the Ninth Circuit reversed, holding that “the class-of-one equal protection theory is not applicable to decisions made by public employers.” The Ninth Circuit, in its decision, contrasted the role that the government played in this case from the role it played in the Supreme Court's Village of Willowbrook decision. In Village of Willowbrook, the Ninth Circuit noted, the government acted a sovereign; whereas here, the government was acting as a proprietor managing its own affairs. The Ninth Circuit concluded that when a government is acting as a proprietor of its own affairs, as it does in the employment realm, the class-of-one theory of Equal Protection does not apply.

The Supreme Court, hearing the case upon Engquist's appeal of the Ninth Circuit's decision, noted the it had previously recognized that the government’s powers are broader when it acts as an employer rather than a sovereign. With this principle in mind, the Court focused on the balance of interests between the government as employer and the employee. The Court noted that it has “long held the view that there is a crucial difference, with respect to constitutional analysis, between the government exercising ‘the power to regulate or license, as lawmaker,’ and the government acting ‘as proprietor, to manage [its] internal operation.’” Furthermore, the Court concluded that “[t]his distinction has been particularly clear in our review of state action in the context of public employment.” Therefore, the Court concluded, “the government as employer indeed has far broader powers than does the government as sovereign.” This is true because “[t]he government's interest in achieving its goals as effectively and efficiently as possible is elevated from a relatively subordinate interest when it acts as sovereign to a significant one when it acts as employer.”

While continuing to undertake this balancing process, the Court looked to its decisions involving the competing interests of the government as employer and the employee in the realm of First Amendment speech by public employees. The Court specifically looked to Connick v. Myers, 461 U.S. 138 (1983), a First Amendment case dealing with state employees, and noted that in Connick it held that “a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee’s behavior.” The Court noted that in Connick it concluded that "government offices could not function if every employment decision became a constitutional matter.” Therefore, “constitutional review of government employment decisions must rest on different principles than review of . . . restraints imposed by the government as sovereign.”

The Court then used these principles as the touchstones for deciding Engquist's case, and concluded that its Olech decision did not create liability for the state government to class-of-one claims raised by state employees. In so concluding, the Court construed the Olech decision narrowly. In Olech, the Court notedthere had been a clear standard against which allegedly discriminatory government action could be measured. According to the Court, the same was not true in the case Engquist. The Court described the state government's decision in Engquist as a “form[] of state action . . . which by [its] nature involved discretionary decisionmaking based on a vast array of subjective, individualized assessments.” In such a context, “allowing a challenge based on the arbitrary singling out of a particular person would undermine the very discretion that such state officials are entrusted to exercise.” Therefore, while the Court's decision in Olech did apply the Equal Protection Clause to the claim of plaintiff who was not alleging class-based discrimination, the Enquist Court concluded that the same rationale could not be extended to cases in which the state government acts as an employer. The Court suggested that recognizing a class-of-one claim in this context would “upset long-standing personnel practices,” because “[t]he power of employers to discharge employees for reasons that may appear arbitrary, unless constrained by contract or statute, is well-established under the common law of at-will employment.” The majority went on to conclude that “[t]he class-of-one theory of equal protection is another constitutional area where the rights of public employees should not be as expansive as the rights of ordinary citizens.”

(4) Congress has been informed of examples of genetic discrimination in the workplace. These include the use of pre-employment genetic screening at Lawrence Berkeley Laboratory, which led to a court decision in favor of the employees in that case Norman-Bloodsaw v. Lawrence Berkeley Laboratory (135 F.3d 1260, 1269 (9th Cir. 1998)). Congress clearly has a compelling public interest in relieving the fear of discrimination and in prohibiting its actual practice in employment and health insurance.
(5) Federal law addressing genetic discrimination in health insurance and employment is incomplete in both the scope and depth of its protections. Moreover, while many States have enacted some type of genetic non-discrimination law, these laws vary widely with respect to their approach, application, and level of protection. Congress has collected substantial evidence that the American public and the medical community find the existing patchwork of State and Federal laws to be confusing and inadequate to protect them from discrimination. Therefore Federal legislation establishing a national and uniform basic standard is necessary to fully protect the public from discrimination and allay their concerns about the potential for discrimination, thereby allowing individuals to take advantage of genetic testing, technologies, research, and new therapies.

(1) to fail or refuse to hire, or to discharge, any employee, or otherwise to discriminate against any employee with respect to the compensation, terms, conditions, or privileges of employment of the employee, because of genetic information with respect to the employee; or
(2) to limit, segregate, or classify the employees of the employer in any way that would deprive or tend to deprive any employee of employment opportunities or otherwise adversely affect the status of the employee as an employee, because of genetic information with respect to the employee.

(1) where an employer inadvertently requests or requires family medical history of the employee or family member of the employee;
(2) where--

(A) health or genetic services are offered by the employer, including such services offered as part of a wellness program;
(B) the employee provides prior, knowing, voluntary, and written authorization;
(C) only the employee (or family member if the family member is receiving genetic services) and the licensed health care professional or board certified genetic counselor involved in providing such services receive individually identifiable information concerning the results of such services; and
(D) any individually identifiable genetic information provided under subparagraph (C) in connection with the services provided under subparagraph (A) is only available for purposes of such services and shall not be disclosed to the employer except in aggregate terms that do not disclose the identity of specific employees;

(3) where an employer requests or requires family medical history from the employee to comply with the certification provisions of section 103 of the Family and Medical Leave Act of 1993 (29 U.S.C. 2613) or such requirements under State family and medical leave laws;
(4) where an employer purchases documents that are commercially and publicly available (including newspapers, magazines, periodicals, and books, but not including medical databases or court records) that include family medical history;
(5) where the information involved is to be used for genetic monitoring of the biological effects of toxic substances in the workplace, but only if--

(A) the employer provides written notice of the genetic monitoring to the employee;
(B)(i) the employee provides prior, knowing, voluntary, and written authorization; or
(ii) the genetic monitoring is required by Federal or State law;
(C) the employee is informed of individual monitoring results;
(D) the monitoring is in compliance with--

(i) any Federal genetic monitoring regulations, including any such regulations that may be promulgated by the Secretary of Labor pursuant to the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq.), the Federal Mine Safety and Health Act of 1977 (30 U.S.C. 801 et seq.), or the Atomic Energy Act of 1954 (42 U.S.C. 2011 et seq.); or
(ii) State genetic monitoring regulations, in the case of a State that is implementing genetic monitoring regulations under the authority of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq.); and

(E) the employer, excluding any licensed health care professional or board certified genetic counselor that is involved in the genetic monitoring program, receives the results of the monitoring only in aggregate terms that do not disclose the identity of specific employees; or

(6) where the employer conducts DNA analysis for law enforcement purposes as a forensic laboratory or for purposes of human remains identification, and requests or requires genetic information of such employer's employees, but only to the extent that such genetic information is used for analysis of DNA identification markers for quality control to detect sample contamination.

You can read the full article here.

Further, most employers these days are familiar with getting nothing more than “name, rank, and serial number,” so you will not be discrediting former employees by severely limiting information. Carefully limit what you say, and you won’t live to regret it.