Up In Smoke - The Difference Between a Private and Public Employer

Posted 5:27 PM by Michael Fox

In a class just last Friday, Essential Employment Law, sponsored by the University of Texas School of Law, I made the point when discussing privacy rights that public sector employers have additional responsibilities arising from their constitutional obligations that are not visited on their private sector counterparts. Today's decision from the 7th Circuit is a good example of the difference. An employee (soon to be ex-employee) of the City of Evanston was arrested for the possession of a small amount of marijuana. Once it learned of his arrest through the local paper, the City began termination proceedings notwithstanding the pending criminal charge. Although in a similar situation, the employee would have had limited recourse, the same was not true for his employer. Instead, the Court found that the City had acted improperly:

Pursuant to an express policy as stated by its appellate counsel, the City refused to continue Franklin’s disciplinary hearing until after his criminal case was resolved, and the City asked Franklin to respond at the hearing to the criminal charges against him without advising him that his responses could not be used against him in his pending criminal proceedings. Franklin was thus effectively
forced to choose between his job and his Fifth Amendment rights, and this was an impermissible violation of his Fourteenth Amendment right to procedural due process.The net result, a reversal of his claim for violation of his civil rights under Section 1983.

Franklin v. City of Evanston (7th Cir. 9/27/04)[pdf]. The case which began with Franklin's arrest on November 7, 1997, thus heads back to district court for more proceedings.

One other interesting side note -- for those who argue the unfairness between laws regulating the use of marijuana and alcohol, the Court notes that although both possession of small amounts of marijuana and driving under the influence were similar misdemeanors, the fact that Franklin had been treated differently from employees arrested for DUI means only that, "rightly or wrongly, the City simply treats DUI less harshly than the possession of marijuana. This does not amount to unlawful discrimination."

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