Although the Constitution does not directly hold sway over private sector employers and the treatment of their employees, the Constitution does come into play in the public sector. The question of how much protection is afforded public employees in the workplace has been before the Supreme Court on numerous occasions.
In most non-union, private-sector jobs, the employee may be terminated at any time -- for any reason -- as long as the reason behind the firing is not illegal. Although private employees are not protected directly by the Constitution, they are protected by state and federal laws against termination based on gender, religion, ethnicity, race and age. Additionally, a female employee may not be fired because she has had an abortion or because of pregnancy.
In addition to some Fifth Amendment rights afforded public employees, the Fourteenth Amendment and applicable clauses in the employee’s state constitution protect certain aspects of a public employee's job security. Jobs in the public sector are considered “property” and cannot be taken from employees without due process. Before a public employee may be fired, the employer must show just cause and permit the employee to answer the accusations. Additionally, the employee is guaranteed a hearing to clear his name, in case the accusations might affect future employment.
In Garrity v. New Jersey, the Supreme Court decided that public employees have a Fifth Amendment right regarding interrogation by employers. The decision held that information obtained from an employee during an interrogation interview that could result in the employee’s termination cannot be used as evidence against that employee in a subsequent criminal proceeding. However, if the employee refuses to answer questions after having been informed that her answers won’t be used against her criminally, the employer may initiate disciplinary action.
Another Supreme Court ruling in favor of public employees concerns pre-termination hearings. In Cleveland Board of Education v. Loudermil, the court decided that public employees have the right to a hearing before they are fired. By law, the employee must be notified of the charges against him and the scheduled time for the hearing. Though the employee is not guaranteed a chance to cross-examine his employer, he will have an opportunity to present his side of the story at the hearing.
Although public employees do enjoy freedom of speech, employers may institute certain rules and regulations that limit employee speech in the interest of the agency or institution. An employee may be disciplined or terminated if her expression or conduct impedes the functioning of the agency or violates confidentiality provisions of the agency's rules. Additionally, government employers need not show “just cause” before terminating political appointees who work for a particular governmental unit, policy-making employees, employees with special political loyalty and employees who hold fiduciary positions.