The human resource decisions of public employers are often the subject of newspaper articles and the ten o’clock news. When a public employee is terminated, questions are often asked and statements are frequently given. Under some circumstances, those statements can be actionable under the Due Process clause of the Fourteenth Amendment. Among the liberties protected by the Due Process clause are an individual’s choice to follow a particular career path or profession. Comments made by an employer can significantly impact an employee’s future employment options. If the comments are false and stigmatizing, the employer can be held liable. This cause of action can be brought under 42 U.S.C. § 1983, and is often referred to as an occupational liberty claim. This article seeks to set out the basic elements of an occupational liberty claim and provide some best practices for public employers to follow.

“An occupational-liberty claim may arise when, after an adverse employment action, a public employer stigmatizes the employee by making public comments impugning his good name, honor, or reputation or imposes a stigma that forecloses other employment opportunities.” Palka v. Shelton, 623 F.3d 447, 454 (7th Cir. 2010) (citation omitted). While the claim bears some resemblance to defamation law, courts have been careful to not constitutionalize defamation and have set forth a rigorous standard for the employee to plead and prove. To state an occupational liberty interest claim, a plaintiff must plead that “(1) the defendant made stigmatizing comments about him; (2) those comments were publicly disclosed; and (3) he suffered a tangible loss of other employment opportunities as a result of the public disclosure.” Palka, 623 F.3d at 454 (citation omitted). “The public-disclosure element requires that the defendant actually disseminate the stigmatizing comments in a way that would reach potential future employers or the community at large.” Palka, 623 F.3d at 454 (citation omitted).

The first element requires the employee to show that a public official made defamatory statements about him. These statements must be false assertions of fact. True but stigmatizing statements that preclude further government employment do not support this type of claim. Nor do statements of opinion, even stigmatizing ones, if they do not imply false facts. We also require the statements to come from the mouth of a public official. Rumors and statements made to public officials do not suffice.

Strasburger v. Bd. of Education, Hardin County Community Unit School Dist. No. 1, 143 F.3d 351, 356 (7th Cir. 1998) (citations omitted).

A stigmatizing comment is not a statement of opinion or a non-factual statement. Moreover, a stigmatizing statement must be false. For example, an employee may have been terminated because they were found to have stolen from their employer. If a public comment is made that the employee stole and was fired as a consequence, and it later turns out that the employee was innocent and did not steal anything from their employer, the publicly made false accusation could be deemed to be stigmatizing. If there is some question or doubt as to the employee’s conduct, it is best to err on the side of caution and make no comment at all.

The third element, public disclosure, requires that the government employer disseminate the stigmatizing comments in a way that could reach potential future employees or the community at large. Palka, 623 F.3d at 454. This means the comments that are kept within the organization, without being communicated to the world at large, are not actionable and do not violate the Due Process clause of the Constitution.

When a government employee is terminated, caution should be used before disseminating information regarding the reasons for the termination. This is particularly true if the reasons for the termination would call the employee’s good name or reputation into doubt. Any statements that are made should be concise and factually accurate. As a general principle, public comments about human resource decisions and specific employees should, if possible, be avoided.