## Facts

- Shirley Davis worked for Congressman Otto E. Passman as a deputy administrative assistant.
- Davis alleged Passman terminated her employment because she was a woman and that he preferred a man for the position.
- Davis sued in federal district court seeking damages (back pay), invoking federal-question jurisdiction under 28 U.S.C. § 1331(a).
- Because then-existing statutory employment-discrimination remedies did not cover most congressional staff, Davis relied directly on the Fifth Amendment’s Due Process Clause.

## Issues

1. Whether the Fifth Amendment’s Due Process Clause (through its equal protection component) protects a congressional employee from sex discrimination by a federal official.
2. Whether a plaintiff may maintain an implied cause of action directly under the Fifth Amendment and obtain a damages remedy for such discrimination when no explicit statutory remedy is available.

## Decision

- The Supreme Court reversed the Fifth Circuit and remanded, in a 5–4 decision authored by Justice Brennan.
- The Court held the Fifth Amendment’s equal protection component confers a constitutional right to be free from unjustified gender discrimination by federal actors.
- The Court held a cause of action and damages remedy may be implied directly under the Fifth Amendment to redress the alleged constitutional violation.
- The Court left open the application of potential defenses, including any immunity or protection under the Speech or Debate Clause, for consideration on remand.

## Legal Principles

- The Fifth Amendment’s Due Process Clause includes an equal protection component that bars gender discrimination by federal officials unless it serves important governmental objectives and is substantially related to achieving those objectives.
- For constitutional rights, the question of who may sue to enforce the Constitution is distinct from statutory implied-right-of-action analysis; the Cort v. Ash framework is not controlling for direct constitutional claims.
- When a federal official allegedly violates the Fifth Amendment and no effective alternative remedy exists, federal courts may recognize an implied cause of action and award damages as a judicial remedy (consistent with the Bivens line of cases).

## Conclusion

The Court held that a congressional employee alleging sex discrimination by a federal official may sue directly under the Fifth Amendment and seek damages, reversing the dismissal of Davis’s complaint and remanding for further proceedings.


Davis v. Passman, 442 U.S. 228 (1979)