Case Study 1
Jonathan Hammersmith worked as an undercover officer for the Sometown Police Department. For the past six months, he had been working deep undercover investigating a drug ring in Sometown Heights. His handler was Fred Rich. Hammersmith met with Rich every other week to update him on the progress of the investigation and to report any problems.
The investigation was going well. It had taken a couple of months, but Hammersmith had earned the trust of the ringleader, Jimmy Lynch. Hammersmith accompanied Lynch everywhere and attended meetings with drug suppliers and dealers. It was at one of these meetings that Hammersmith learned why Jimmy Lynch always avoided being caught by the police.
At one of the meetings, one of Lynch’s associates mentioned that he was going to “take his Pa out for coffee” the next day. That struck Hammersmith as an odd thing to say, so he looked into it. He discovered that taking one’s father out for coffee not only involved picking up the check, but giving “Pa” a little extra spending money too. “Pa” turned out to be none other than Jake French, a member of his task force. A little more digging revealed that several other members of the Sometown Police Department were on the take.
At first Hammersmith was not sure what to do. He knew that reporting the matter internally would go badly. Officers who “ratted out” other officers were scorned by the department and given the worst assignments. What was worse, they had no recourse. While Hammersmith did not want to kill his career with the force, he also did not want to let the matter stand. He had worked for years to get drugs under control in Sometown, and he did not want that all to go to waste. Hammersmith wrote his state senator and the governor and provided them with information about the members of the force who were on the take. An investigation ensued, and the guilty parties on the force were brought down. While some of the officers on the force hated Hammersmith, he kept his job.
Questions
1. What are Jonathan Hammersmith’s First Amendment rights as a police officer for work-related speech?
Because he is a police officer, Jonathan Hammersmith’s First Amendment rights for work-related speech are limited. His work-related speech is only protected by the First Amendment when he speaks as a citizen, and not as an employee of the Sometown Police Department, carrying out his official duties. His speech must be on a matter of public, as opposed to private, concern. The benefit of his bringing this matter out into the open must outweigh the police department’s interest in avoiding disruptions in the workplace.
2. Why wouldn’t Hammersmith report the bribery to his handler, Fred Rich? What Supreme Court decisions illustrate why he reacted as he did?
Hammersmith did not report the bribery to his handler, Fred Rich, because had he done so, he would have been speaking as an employee carrying out his official duties, and therefore his speech would not be protected by the First Amendment. This distinction was made by the Court in Garcetti v. Ceballos. An officer in a situation almost identical to Hammersmith’s reported bribery internally and suffered adverse consequences. The Court in Sigworth v. City of Aurora, Illinois rejected Sigworth’s claim that the adverse consequences violated his First Amendment rights because he spoke as an employee, not as a citizen.
Hammersmith reported the bribery allegations to his state senator and the governor, because this way he was speaking as a citizen reporting corruption, and not as an employee. Officers being on the take is a matter of public concern, and the benefit of not having a corrupt police force should outweigh the department’s interest in avoiding disruptions in the workplace. In Freitag v. Ayers, a prison guard did something very similar, and the Court ruled that her work-related speech was protected under the First Amendment.
3. What is the “public concern” requirement, and did Hammersmith’s actions meet it?
For Hammersmith’s work-related speech to merit protection under the First Amendment, it had to meet the “public concern requirement.” There are three things the Court considers when deciding if speech meets this requirement: content, form, and context.
Speech alleging official misconduct, waste of public funds, systematic discrimination, and hazards to public safety or health are almost always a matter of public concern. Hammersmith’s allegation of bribery on the force certainly meets this requirement. The form is how the employee presented the case. Hammersmith wrote letters to his state senator and the governor. By going outside the department to elected officials, Hammersmith expressed the matter publicly, not privately within the department. To fulfill the context requirement, work-related speech must be serve a broader public purpose. Hammersmith wished to expose corruption. He did not have a personal axe to grind with the officers in question. Jonathan Hammersmith’s actions met the “public concern requirement,” because he met the standards for content, form, and context.
Case Study 2
Sometown Police Detective George Rome faced termination for misusing department computers to look at online pornography. The policy against using department computers for such purposes and the consequences for violating the policy were clearly stated in the department’s employee handbook, and Rome had signed a statement saying that he had read and understood the handbook. Two months before, he had been issued a written warning for using department computers to visit pornographic websites. This warning stated that the next step in the process was termination. He had also signed this warning. A week before termination proceedings began, a routine check on his online activity—a check that all department computers are subjected to—revealed that he had once again visited these websites. This evidence provided just cause to terminate Rome.
As Rome was a senior officer on the force, prior to termination, he was given a hearing, attended by the chief of police, a representative from the union, and the head of the internal investigations department, who would make the ultimate decision. At the hearing, he was presented with the charge against him: misuse of department computers to visit pornographic websites. Rome was told that this was in direct violation of department policy, a policy that he had acknowledged and had agreed to abide by. In addition, he had received a written warning stating that if he violated this policy again, he would be terminated. A routine check of his online activity had revealed that he violated the policy. The committee gave Rome an opportunity to challenge the evidence and to present testimony. As Rome had, in fact, used department computers to look at online pornography after being warned not to do so, he chose not to challenge the evidence against him or present testimony in his defense. George Rome was terminated from the Sometown Police Department.
Questions
1. George Rome was in flagrant violation of department policy and had violated a written warning issued just two months prior to his termination. Why was he not immediately terminated?
As a senior officer of the Sometown Police Department, George Rome had a property right in his job. Because he had this right, he could not be terminated without just cause, and he was entitled to a hearing to contest the department’s determination to terminate him.
2. What is the constitutional basis for a “property right in a job”? What is “just cause”?
The basis for a property right in a job is found in the Fourteenth Amendment, which provides that no state shall deprive any person of life, liberty, or property without due process. Just cause is a legal concept that refers to serious misconduct.
3. What are the minimum requirements for a termination hearing for police officers who have a property right in their jobs? Were these requirements met in George Rome’s case?
The hearing must, at minimum, include: (1) notice of the charges; (2) a hearing before an impartial decision maker; (3) an opportunity to challenge the department’s evidence; and (4) an opportunity to present testimony. Rome was notified of the charges and was given a hearing before an impartial decision maker. He was provided the opportunity to challenge the department’s evidence and to present testimony. He did not choose to do either. His hearing satisfied the requirements.
Case Study 3
Ever since she was a little girl, Juanita Lopez wanted nothing more than to join the Sometown Police Department. She had worked hard to fashion herself into an ideal candidate. In college, she had studied justice at and had graduated at the top of her class. Lopez spoke English and Spanish fluently and also knew some Mandarin Chinese. Unlike most of the members of the force, she would be able to communicate with the majority of the residents of Sometown without the aid of an interpreter. Despite having a sizeable Latino population, Sometown did not have any Latina women on the police force. This had caused difficulties when the police conducted investigations in Latino neighborhoods. Lopez’s presence would likely alleviate this problem.
An outgoing person who had lived her entire life in Sometown, Lopez knew almost everyone in town, and they knew and respected her. Lopez also had a black belt in karate and ran marathons, so the physical demands of the job would not present her with any difficulties. When she applied to join the Sometown Police force, she fully expected to be offered the job with open arms.
There was just one little problem. Juanita Lopez was 5′1″ tall and weighed 110 pounds. In all of her research into the requirements of becoming an officer at the Sometown Police Department, Lopez had somehow not discovered that to join the force, a candidate needed to be at least 5′2″ tall and weigh at least 125 pounds. These minimum height and weight requirements seemed outrageous to Lopez, and she sued the department and won. She joined the Sometown Police Department and proved to be a true asset to the force.
Questions
1. Did Juanita Lopez sue the Sometown Police Department on constitutional grounds? If so, what were they? If not, then how did she make her case?
Juanita Lopez did not sue the department on constitutional grounds. Instead, she sued under Title VII of the Civil Rights Act of 1964 (Equal Employment Opportunities). Title VII prohibits employers from discriminating against job applicants based on their race, color, religion, gender, or national origin. Minimum height and weight requirements disproportionately disqualify women and members of certain minority groups from securing jobs as police officers. Requirements that have this effect are illegal under Title VII unless they measure traits that are necessary for the successful performance of the job. Given Lopez’s outstanding qualifications for the job, including its physical aspects, this qualification was unreasonable.
2. If Juanita Lopez had been obese, would her case have succeeded? Why or why not?
If Juanita Lopez was obese, her case would have failed. Police departments have a legitimate interest in an officer’s weight, due to the physical demands of the job.
3. What is the justification for heightened restrictions for police officers, concerning their appearance and behavior?
The justification for heightened regulation is found in the unique service that police officers perform, a service that sets them apart from ordinary citizens and from civil servants in other branches of government. Courts often use the phrase “paramilitary organization” to explain why restrictions on a police officer’s conduct are condoned that would not be condoned if imposed on employees in other branches of government service.
Case Study 4
Over the past two years, the Sometown Police Department had made active strides to increase diversity on its force. They had hired a number of minority and women officers, and had been rewarded with a better relationship with the Sometown community. Now the members of this new crop of junior officers were busily studying for the exam to make them eligible for promotion. The police chief was excited about having the face of the Sometown Police Department better match the face of Sometown.
Testastic, a testing consulting firm, created the exam designed to identify the best candidates for promotion. Testastic had an excellent reputation for creating tests that were job-specific and avoided elements that were likely to leave minorities and women at a disadvantage. Their methods were scientific, and they adhered to exacting standards. The Sometown Police chief was confident that the test would accurately measure the abilities of the officers and not provide any unfair advantages.
The day for the exam arrived, and the junior officers sat down at computer stations and took the Testastic test. Most of the officers felt confident about their performance and eagerly awaited the results. The results, however, left the police chief shocked and upset. While many of the junior officers did very well on the exam and qualified for promotion, there appeared to be a statistical disparity in pass rates for minority and female candidates. If the promotions were handed out on the basis of this exam, the department could open itself to charges of discrimination. The chief was not sure what to do.
Questions
1. The Sometown Police Department had made an effort to increase diversity on its police force. In attempting to create a test that was job-specific and nondiscriminatory, what was the department trying to avoid?
In contacting Testastic to create an exam that was job-specific and avoided elements that would likely leave women and minorities at a disadvantage, they were trying to avoid disparate impact discrimination. Disparate impact discrimination occurs when an employer uses selection criteria that disproportionately eliminate members of a protected class without being valid predictors of the knowledge, skills, or traits necessary for the job in question.
2. Which Supreme Court decision recognized this type of discrimination? In so doing, it increased the standard for compliance for which law?
The Supreme Court recognized disparate impact discrimination in Griggs v. Duke Power Company. The result of this decision raised the bar for Title VII of the Civil Rights Act of 1964 (Equal Employment Opportunities) compliance.
3. Which Supreme Court case does the example from the Sometown Police Department resemble? What did the Court decide, and what was its reasoning? What type of discrimination did the plaintiff claim had happened?
The events that brought about Ricci v. DeStefano, a controversial Supreme Court decision, resemble this example. The New Haven Fire Department had contracted an outside firm to create a job-specific exam to identify candidates for promotion. Although the consulting firm took painstaking measures to ensure that questions on the exam were job-related, the results of the test produced a statistical disparity. If the city used the results, none of the black firefighters who took the exam would qualify for promotion. The city threw out the results of the exam, not wanting to be charged with disparate impact discrimination. The white firefighters and one Hispanic firefighter who qualified for promotion sued, claiming disparate treatment discrimination.
The Supreme Court sided with the plaintiffs in the case, saying that the city could only throw out the exam if they had a strong basis in evidence for believing that it would be liable for disparate impact discrimination if it did not take race-conscious action. A statistical racial disparity in pass rates, without more, does not establish liability. It is only a threshold showing. The city would be liable for disparate impact discrimination only if the exam design was flawed so that the exam did not operate as a valid predictor of the knowledge, skills, and abilities required for the position. As the City of New Haven did not have such a basis, the test results had to stand.