Human Resources Management for Public and Nonprofit Organizations

74 Human Resources Management for Public and Nonprofi t Organizations

employees work for the government, the

protections are extended to them by operation

of the employment relationship.

Many of the rights under the U.S. Con-

stitution are limitations on Congress and

the states to exercise certain actions against the

citizens and employees. However, these con-

stitutional limitations are not self - executing and

therefore must be enforced through the Civil

Rights Act of 1871, which was enacted by Congress as part of reconstruction

legislation after the Civil War. In the public sector employment arena, it

is important to note that 42 USC 1983 is the enforcement vehicle of the

other constitutional rights and allows damages only against persons who

act “ under the color of law, ” that is, the government, where the govern-

ment actor subjects any person to a deprivation of any rights, privileges,

or immunities secured by the U.S. Constitution or the laws of the United

States. Therefore, where a public sector employer is “ acting under the

color ” within the employment relationship or otherwise deprives employees

of certain constitutional rights, a cause of action against the employer or

other employees may be available to protect the “ rights ” afforded. However,

the employer may be held liable only where it has a policy, practice, or

custom that deprives the employee of the right.

Today it is unlikely that employers have written policies that on their

face would be a violation of the Constitution. However, many employ-

ment actions arise through incorrect policy implementation or in viola-

tion of the Constitution through supervisory personnel who deprive

employees of their constitutional rights, which gives rise to individual or,

in some cases, employer liability. The legal concept of respondeat superior

( “ let the master answer ” ) is generally not available under constitutional

claims to hold the employer liable for nonsanctioned offi cial actions of

its employees.

Expressive Rights

The First Amendment to the U.S. Constitution protects public employ-

ees against unwarranted employer interference with their freedom of

speech, expression, association, and religion. It also protects the right of

public employees to join a labor union or advocate the joining of asso-

ciations, the right to speak out on matters of public concern, the right

Public employees have a

broad array of constitutional

protections that differentiate

public employment from

employment in the nonprofi t

and for - profi t sectors.