segunda-feira, 9 de junho de 2008

A Corte Suprema americana e a igualdade

Prof Farlei Martins Riccio nos envia essa última decisão da Corte Suprema em relação ao tratamento dos empregados públicos vitimas de "irracional arbitrário" ou "um tratamento vingativo" não terão proteção de clásula de igualdade como é disciplinado pela décima quarta emenda.A exceção estará se for comprovada discriminação com base em raça, sexo ou uma outra categoria protegida constitucionalmente. A decisão da Corte, segundo o texto abaixo, pode trazer sérias consequências para outras formas de regulação na presença do Estado e contraria decisão de instâncias judiciais norte-americanas inferiores. Enquanto Brasil caminha para definir o assédio moral e questões de cotas, os Estados Unidos pela sua Corte Suprema toma a direção mais de carater restrito em termos do comportamento do Estado em relação aos seus servidores.
New York Times
Justices Reject 'Class of One' Argument
Published: June 10, 2008
WASHINGTON - Government employees who are singled out for arbitrary,
irrational or even vindictive treatment by their supervisors will find no
relief in the Constitution's guarantee of equal protection, the Supreme
Court ruled on Monday, unless the mistreatment is due to discrimination on
the basis of race, sex or another protected category.
The 6-to-3 decision, with an opinion by Chief Justice John G. Roberts Jr.,
rejected the argument that an individual employee who is not the victim of
group-based discrimination can nonetheless suffer a denial of equal
protection within the meaning of the 14th Amendment.
A cryptic Supreme Court decision eight years ago had accepted the theory
that an individual can comprise a "class of one" for equal protection
purposes and can sue a government agency for mistreatment that has no
objectively rational explanation.
That case concerned a zoning decision in Illinois, in which one homeowner
was required to give a 33-foot easement to be connected to the public water
supply, while all her neighbors were assessed only 15 feet. Such "irrational
and wholly arbitrary treatment" could be the basis for an equal protection
case, the court said then in a unanimous, unsigned opinion.
That decision, Village of Willowbrook v. Olech, appeared to mark a new
departure in equal protection doctrine. But at only five paragraphs long, it
did not begin to cover the landscape. The question soon arose whether the
principle it announced applied to government employment as well as to
government regulation. Nearly every federal appeals court to consider that
question answered yes, but on Monday the Supreme Court said no.
The "class-of-one theory of equal protection" was "simply a poor fit in the
public employment context," Chief Justice Roberts said, explaining that the
government needed "broad discretion" to make "subjective and individualized"
decisions concerning its work force.
"To treat employees differently is not to classify them in a way that raises
equal protection concerns," the chief justice said, adding: "A challenge
that one has been treated individually in this context, instead of like
everyone else, is a challenge to the underlying nature of the government
In a dissenting opinion, Justice John Paul Stevens objected that the
majority "carves a novel exception out of state employees' constitutional
rights." There is a "clear distinction between an exercise of discretion and
an arbitrary decision," he said.
The Equal Protection Clause protects people against "unequal and irrational
treatment at the hands of the state," Justice Stevens continued. He said
that "even if some surgery were truly necessary to prevent governments from
being forced to defend a multitude of equal protection 'class of one'
claims, the court should use a scalpel rather than a meat-axe." Justices
David H. Souter and Ruth Bader Ginsburg joined the dissent.
The case, Engquist v. Oregon Department of Agriculture, No. 07-474, was
brought by an Oregon state employee, Anup Engquist. Ms. Engquist, a native
of India, was dismissed from the laboratory job she had held for 10 years.
She filed a federal lawsuit claiming, in addition to discrimination on the
basis of race, sex and national origin, that she had been dismissed simply
for "arbitrary, vindictive, and malicious reasons" by a supervisor who
disliked her.
The jury, after an 11-day trial, rejected her claims of group-based
discrimination, but accepted her "class of one" theory and awarded $425,000
in compensatory and punitive damages. The United States Court of Appeals for
the Ninth Circuit, in San Francisco, overturned the verdict on the ground
that the class-of-one theory did not extend to government employment.
The Supreme Court affirmed that ruling. "The class-of-one theory of equal
protection does not apply in the public employment context," Chief Justice
Roberts said. Quoting a 1976 Supreme Court decision that the Bush
administration had cited in the brief it filed on behalf of Oregon, the
chief justice said: "The federal court is not the appropriate forum in which
to review the multitude of personnel decisions that are made daily by public
Ms. Engquist's Supreme Court appeal attracted considerable attention. A
brief filed by a coalition of gay rights and disability rights groups
maintained that the class-of-one theory of equal protection was particularly
important for groups like theirs, which in contrast to groups defined by
race, religion, sex or national origin have not been accorded specially
protected status by the court.
In other action on Monday, the court agreed to decide whether a law known as
Title IX, which bars sex discrimination in schools and colleges that receive
federal money, provides the exclusive route to court for discrimination
This case, Fitzgerald v. Barnstable School Committee, No. 07-1125, is an
appeal by the parents of a kindergarten student in Hyannis, Mass., who was
sexually harassed on the school bus by an 8-year-old boy. (Under Supreme
Court precedents, sexual harassment is a form of sex discrimination.) The
parents sued after concluding that school officials had not responded
appropriately to their complaint about their daughter's treatment.
The lower courts ruled that Title IX, which does not encompass suits against
individuals and also contains a number of other limitations, provided the
exclusive remedy. The question is whether the parents can also invoke the
much broader and more straightforward federal civil rights law known as
Section 1983. The intersection of these two statutes is a complex issue that
is likely to attract considerable attention in the education world.
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