The Private Lives of Public Employees

but it is only one factor among many. Other conditions pertinent to such a determination are suggested by the following illustrative questions: What is the effect, if any, upon the individual's job performance? Courts in recent public employment cases have increasingly insisted upon a showing of direct relationship to job competence or performance. The California supreme court, in reversing the discharge of the homo151 Adamson v. California, 332 U.S. 46, 124 (1947) (dissenting opinion). [Volume 51, 19711 The Private Lives of Public Employees sexual teacher, made clear that the "immoral conduct" statute could survive only as thus modified: "An individual can be removed from the teaching profession only upon a showing that his retention in the profession poses a significant danger of harm to either students, school employees, or others who might be affected by his actions as a teacher." 152 Other courts have taken the same view in cases involving hair style and length, private correspondence, and heterosexual relations. 153 Every such decision, of course, leaves it open to the agency to demonstrate such harm by proof which, even if it existed, was presumably deemed irrelevant in advance of the announcement of such a standard by the court. The hard question lies below the surface: if the agency may justify sanctions by showing such harm or threat, what kinds of proof will suffice? In such a case, the government typically claims that, absent actual disruption or dereliction, the proscribed act or trait would tend to impair the worker's effectiveness. In some cases, the simple answer is the one the courts have given: let the employee go back to his job, take appropriate precautions, and wait to see whether those fears are well founded. If they are, then he may be fired; if they are unfounded, then the first dismissal will be shown to have been unjust and unnecessary. Yet such cases do require a certain amount of intelligent guessing about probabilities. Speculation is not completely in the dark, of course. Many judges have come to the bench from administrative positions of responsibility and authority in which they may have encountered comparable problems. There is some writing on public administration, though remarkably little, that may provide hard data.154 There are the judgments of other communities; if New York City now employs homosexuals for many city jobs' 51 and Detroit will hire ex-felons as policemen, 156 then the claim of other cities to impose a higher standard at least requires justification. Finally, there is often the record of past performance. If experience with the employee up to the moment of 152 Morrison v. State Bd. of Educ., 1 Cal. 3d 214, 235, 461 P.2d 375, 391, 82 Cal. Rptr. 175, 191 (1969). 153 E..q, Mindel v. United States Civil Serv. Comm'n, 312 F. Supp. 485, 487488 (N.D. Cal. 1970) ; Forstner v. City & County of San Francisco, 243 Cal. App. 2d 625, 633-634, 52 Cal. Rptr. 621, 627 (1966) ; Jarvella v. Willoughby-Eastlake City School Dist. Bd. of Educ., 12 Ohio Misc. 288, 290, 233 N.E.2d 143, 146 (C.P. Lake County 1967). 154 Cf.. e.g., Frederickson, Understanding Attitudes Toward Public Employ,nent, 29 PUB. AD. REV. 411 (1967) ; Gibson & James, Student Attitudes Toward Governmnent Employees and Employmnent, 29 Pua. AD. REV. 429 (1967). 155 N.Y. Times, May 9, 1969, at 1, col. 2. 156 N.Y. Times, May 28, 1968, at 20, col. 3-4. One court of appeals cited such experience as relevant to governmental claims concerning employment of homosexuals in the federal service, Norton v. Macy, 417 F.2d 1161, 1167 & n.28 (D.C. Cir. 1969). Mayor Lindsay has issued a directive against bans on hiring homosexuals in New York City agencies. See note 25 supra.