78 Human Resources Management for Public and Nonprofi t Organizations
depends on a multitude of considerations. Procedural due process is a
check on arbitrary, capricious, or discriminatory decisions by government
offi cials in individual cases. When invoked in the public employment con-
text, it protects public employees from arbitrary discharge. If nothing else,
procedural due process procedures create the opportunity for individu-
als to protect rights and interests through the discovery of arbitrary or
capricious government action. In order to comport with procedural due
process, a public sector employer must give the affected employee notice,
a meaningful opportunity for the employee to respond to charges and to
present evidence, and the right to an impartial decision maker.
Not all substantive due process rights are codifi ed in the Constitution.
The Fifth and Fourteenth Amendments ’ substantive due process provi-
sions allow the courts to recognize tangible interests dependent on the
concepts of liberty. The Fifth Amendment applies to federal government
action and the Fourteenth Amendment to actions of the respective states.
In limited circumstances, these amendments provide substantive due pro-
cess rights to protect individuals against the deprivation of life, liberty,
or property without the procedural due process of law. The concepts
of life, liberty, and property are ever evolving, and therefore substantive
due process rights are recognized on a case - by - case basis. In addition, at
minimum, these amendments to the Constitution require a rational basis
supporting government actions. In the context of equal protection not af-
fecting a protected class of individuals, the government is not required to
treat everyone the same, but it does mandate that it treat similarly situated
groups in a like manner unless it can establish a legitimate reason that is
rationally related to the employment decision. Where a protected class of
individuals is at issue, for example, gender or race, the judicial scrutiny
increases and therefore affords greater protection to these classes.Additional Protections for Employees
Public and nonprofit employees may also have additional workplace
protections that prohibit arbitrary and unfair treatment from employers
through local, state, or federal statutes.Whistle - Blower Protection
A whistle - blower is an employee, former employee, or contractor of an
agency who reports agency misconduct. Generally the misconduct is a