A major change in civil rights litigation.

For at least 40 years it has been accepted that Congress has broad powers to eradicate discrimination in American society, particularly in the workplace. Statutes have been enacted prohibiting discrimination based on race, gender, religion, age, and disability. Few people would deny that these are among the most important laws adopted during the last half century. Enactment of federal legislation was widely perceived as essential because common law does not proscribe discrimination and most of the states lack adequate statutory protections.

Now, for the first time in a half century, the Supreme Court has declared a federal civil rights statute unconstitutional. On January 11, 2000, in Kimel v. Florida Board of Regents, the Supreme Court held that it is unconstitutional to apply the Age Discrimination in Employment Act (ADEA)(1) to state governments.(2)

Although the Kimel decision only considered the ADEA, its reasoning will probably apply equally to other federal civil rights statutes, such as the Americans with Disabilities Act and the Family and Medical Leave Act.

The result is that those who work for state governments no longer have these federal law protections. Lawyers litigating civil rights claims on behalf of state employees must rely solely on state law claims in state courts.

Several cases were consolidated in Kimel. The named case involved a suit by current and former faculty and librarians at Florida State University, including J. Daniel Kimel Jr. They alleged that the university's failure to provide promised pay adjustments discriminated against older workers and violated the ADEA.

A companion case was brought by Wellington Dickson, an employee of the Florida Department of Corrections, who claimed that he was denied promotions because of his age. Another of the consolidated cases involved faculty members at a state university in Alabama who claimed age discrimination.

The Supreme Court held that all these claims against state agencies are barred by the Eleventh Amendment. The Eleventh Amendment has been broadly interpreted by the Court to prohibit suits against state governments, whether by their own citizens or citizens of other states.

The Court has recognized limited exceptions to the Eleventh Amendment. In 1976, in Fitzpatrick v. Bitzer, the Court ruled that Congress, under [sections] 5 of the Fourteenth Amendment, may abrogate states' sovereign immunity and authorize suits against state governments.(3) The Court explained that the Fourteenth Amendment was meant as a limit on state sovereignty and can be used to override the Eleventh Amendment. In 1989, in Pennsylvania v. Union Gas Co., the Court held that Congress could abrogate the Eleventh Amendment under any of its powers, so long as the law's text clearly authorizes suits against the states.(4)

In 1996, however, in Seminole Tribe v. Florida,(5) the Supreme Court overruled Union Gas and held that Congress may only authorize suits when it acts under [sections] 5 of the Fourteenth Amendment. Therefore, whenever an attorney uses a federal law to sue a state government, the crucial question is whether the statute was adopted under [sections] 5, in which case the suit is allowed, or whether the law was adopted under any other congressional power, in which case the suit is barred.

Until 1997, it was thought that Congress had broad authority under [sections] 5 to adopt laws advancing civil liberties and civil rights. But in City of Boerne v. Flores, the Court sharply limited Congress's powers under this provision.(6) The Court declared the Religious Freedom Restoration Act unconstitutional and held that Congress, under [sections] 5, may not expand the scope of rights or create new rights; Congress only may provide remedies for rights already recognized by the courts.

On June 23, 1999, in Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, the Court held that it was unconstitutional for Congress to authorize suits against state governments for patent infringement.(7) The Supreme Court explained that the federal law permitting patent litigation against state governments was unconstitutional because there was not sufficient evidence demonstrating widespread patent violations to justify the broad remedy.

The Kimel holding

None of the Supreme Court decisions over the past decade advancing federalism has involved claims of discrimination. Although it might seem a stretch to justify protecting patents under [sections] 5 of the Fourteenth Amendment, advancing civil rights and preventing discrimination are thought to be the central purposes of the provision. Nonetheless, the Supreme Court held that the ADEA is not a constitutional exercise of Congress's authority under [sections] 5.

By a 7-2 margin, with Justices Anthony Kennedy and Clarence Thomas dissenting, the Court concluded that the ADEA is an express authorization of suit against the states. The Court then ruled 5-4 that the act is not a valid exercise of Congress's power under [sections] 5 and cannot be used to sue state governments.

Justice Sandra Day O'Connor wrote the majority opinion and was joined by Chief Justice William Rehnquist and Justices Antonin Scalia, Kennedy, and Thomas. The Court concluded that the burdens the ADEA imposes on state and local governments are disproportionate to any unconstitutional behavior that might exist. The Court emphasized that under prior decisions only rational basis review is used for age discrimination claims.(8)

The Court explained that there is not a "history of purposeful unequal treatment" based on age and that "age also does not define a discrete and insular minority because all persons, if they live out their normal life spans, will experience it."(9) Indeed, the justices said that states "may discriminate on the basis of age without offending the Fourteenth Amendment if the age classification in question is rationally related to a legitimate state interest."(10) The Court said that age often is a relevant criterion for employers.

Therefore, the Supreme Court concluded that the broad prohibition of age discrimination in the ADEA exceeded the scope of Congress's power. The majority declared, "Judged against the backdrop of our equal protection jurisprudence, it is clear that the ADEA is `so out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior.'"(11)

The Court stressed that the ADEA prohibits a great deal of conduct that is otherwise constitutional and emphasized that there were no congressional "findings" of substantial age discrimination committed by state governments. Because of "the lack of evidence of widespread and unconstitutional age discrimination by the states," O'Connor wrote, "we hold that the ADEA is not a valid exercise of Congress's power under [sections] 5 of the Fourteenth Amendment."(12)

Where does this leave state employees who are victims of age discrimination? O'Connor wrote that their recourse is under state law in state courts:

   Our decision today does not signal the end of the line for employees who
   find themselves subject to age discrimination at the hands of their state
   employers.... State employees are protected by state age discrimination
   statutes, and may recover money damages from their state employers, in
   almost every state of the Union. Those avenues of relief remain available
   today, just as they were before this decision.(13)

Implications

The Kimel decision has wide-reaching implications. State governments employ a significant percentage of the workforce, and Kimel bars all these employees from using federal law to sue for age discrimination in federal court. But the case is likely to have an even broader impact.

First, the ruling may bar some local government employees from bringing job-related civil rights claims. Although the Eleventh Amendment does not grant immunity to local governments,(14) courts have found that some local government activities are actually state government functions. For example, in McMillian v. Monroe County, the Supreme Court found that the county sheriff, though elected and paid locally, is a state official.(15) Under this reasoning, other local government entities, such as county coroners and school boards, may also be found to be state offices protected by the Eleventh Amendment.

Second, many other federal laws are vulnerable after Kimel. Suits can still be brought under Title VII against state governments for employment discrimination based on race, gender, or religion because Fitzpatrick has not been overruled. But the ability to sue states under laws preventing other types of discrimination is uncertain.

On January 21, 2000, less than two weeks after Kimel was decided, the Supreme Court granted certiorari in Florida Department of Corrections v. Dickson, which raises the issue of whether states can be sued for violating the Americans with Disabilities Act (ADA).(16)

On the one hand, the ADA, like the ADEA, provides statutory protection from discrimination for a class that receives only rational basis review under the Equal Protection Clause. On the other hand, there is a voluminous congressional record for the ADA that documents government discrimination against the disabled. The plaintiff and the United States government, as amicus, will argue that this record distinguishes the ADA and makes it a permissible exercise of Congress's power under [sections] 5 of the Fourteenth Amendment.

Also, on January 18, 2000, a week after Kimel, the Court granted certiorari and remanded for reconsideration in light of Kimel two cases concerning whether states can be sued for violating the Equal Pay Act.(17) In Kimel, O'Connor's majority opinion indicated that race and gender discrimination are different from other types of discrimination and that Congress has greater authority to provide remedies for such discrimination. On the other hand, in both cases U.S. Courts of Appeal had ruled that states can be sued for violations of the Equal Pay Act and the Supreme Court's choice to remand these cases in light of Kimel suggests that this is still an open question.

The ultimate issue is how to balance the desire for immunity for state governments with the need to hold state governments accountable. Until January 11, 2000, it was widely accepted that Congress had broad authority to prevent discrimination by state governments. Now, though, the Supreme Court has clearly held that state government's immunity prevents accountability even in the area of antidiscrimination law. How far the Court will go in providing states immunity from antidiscrimination suits is unclear, but the Court's ruling later this term concerning the ability to sue states under the ADA will likely provide further clarification.

Changing course

For the first time in a half century, the Supreme Court has declared a federal civil rights statute unconstitutional.

Notes

(1.) 29 U.S.C. [subsections] 623-634 (1994).

(2.) 2000 U.S. LEXIS 498 (U.S. Jan. 11, 2000) (Nos. 98-791, 98-796).

(3.) 427 U.S. 445 (1976).

(4.) 491 U.S. 1 (1989), overruled by Seminole Tribe v. Florida, 517 U.S. 44 (1996).

(5.) 517 U.S. 44.

(6.) 521 U.S. 507 (1997).

(7.) 119 S. Ct. 2199 (1999).

(8.) See, e.g., Vance v. Bradley, 440 U.S. 93 (1979); Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307 (1976).

(9.) Kimel, 2000 U.S. LEXIS 498, at *39.

(10.) Id.

(11.) Id. at *44 (citing City of Boerne, 521 U.S. 507, 532).

(12.) Id. at *53.

(13.) Id. at *53-54.

(14.) See, e.g., Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 275 (1977).

(15.) 520 U.S. 781 (1997).

(16.) 139 F.3d 1426 (11th Cir. 1998), cert. granted, 2000 U.S. LEXIS 991 (U.S. Jan. 21, 2000) (No. 98-829), consolidated with another case: Alsbrook v. City of Mauville, 184 F.3d 999 (8th Cir. 1999), cert. granted sub nom. Alsbrook v. Arkansas, 2000 U.S. LEXIS 996 (U.S. Jan. 25, 2000) (No. 99-423).

(17.) Illinois State Univ. v. Varner, 150 F.3d 706 (7th Cir. 1998), cert. granted and remanded, 68 U.S.L.W. 3458 (U.S. Jan. 18, 2000) (No. 98-1117); Anderson v. State Univ., 169 F.3d 117 (2d Cir. 1999), cert. granted and remanded, 68 U.S.L.W. 3458 (U.S. Jan. 18, 2000) (No. 98-1845).

Erwin Chemerinsky is the Sydney M. Irmas Professor of Public Interest Law, Legal Ethics, and Political Science at the University of Southern California.