In Perez v City of Roseville (2018), the 9th Circuit Appeal held that public employers may not take adverse action against an employee due to that employee’s constitutionally protected off-duty conduct, unless the conduct negatively impacts job performance or violates a valid, narrowly tailored regulation. Among other things, the court held that it is unlawful to terminate a public employee due to engaging in a protected conduct, such as off duty sexual activity. This is a significant constitution protection for state and other public employees.
A typical situation where section 1983 would come into play is where two public employees – coworkers are disciplined or terminated for having some type of romantic relationship outside of workplace. It doesn’t affect their performance in any way and they don’t engage in any sexual or otherwise inappropriate conduct at workplace.
In its decision, the Perez court relied on Thorne v City of El Segundo (1986) case. In that case, the ninth circuit used a language that can be very helpful to California public employees when making a case for wrongful termination, retaliation or failure to hire based on private conduct that has no connection or impact on their job:
“A potential employee of the state may not be required to forego his or her constitutionally protected rights simply to gain the benefits of state employment. … The more fundamental the rights on which the state’s activities encroach, the more weighty must be the state’s interest in pursuing that course of conduct. We do not hold that the City is prohibited by the constitution from questioning or considering the sexual morality of its employees.10 If the City chooses to regulate its employees in this area or to set standards for job applicants it may do so only through regulations carefully tailored to meet the City’s specified needs… In the absence of any showing that private, off-duty, personal activities of the type protected by the constitutional guarantees of privacy and free association have an impact upon an applicant’s on-the-job performance, and of specific policies with narrow implementing regulations, we hold that reliance on these private non-job-related considerations by the state in rejecting an applicant for employment violates the applicant’s protected constitutional interests and cannot be upheld under any level of scrutiny.”