The last third of the twentieth century saw several important legislative victories for employees. Many civil rights laws were enacted to prohibit employers from discriminating on the basis of race, color, national origin, religion, sex, age, and disability. Although not all of these statutes protected state employees at first, over the years they came to do so, providing uniformity of protection for most workers in the United States. But, after several years of one uniform set of substantive rights for all workers, the United States Supreme Court has begun paring away the rights of state employees to sue their employers for damages under these statutes by finding that the states are immune from suit. This article describes the Court’s actions, and predicts that there is more to come.
Scholars disagree on whether state immunity from suit in federal court (or even in state court) was part of the constitutional design. The constitution itself is silent on the issue, and some argue that the states ceded any immunity they might have had when they ratified the constitution. Others argue that the constitution’s silence should be interpreted to mean that in the federal courts, the states would retain the immunity they were presumed to have had in their own courts. Indeed, even the framers and their contemporaries disagreed during the states’ ratification debates over whether states would be immune from suit in federal court.
The issue became moot in 1996 when the United States Supreme Court decided Seminole Tribe v. Florida.1 In that case, using historical analysis, the Court found that state immunity from suit in federal court was part of the constitutional design.2 It was unnecessary for the constitution to mention immunity because immunity was part of the background.3 It was a "given," and the constitution’s silence on the subject meant that immunity would not disappear after ratification, rather than that it would cease to exist.
Thus the Court held that a state could not be sued for damages by an individual in federal court unless the state had waived its immunity or Congress had abrogated that immunity. The Court then took the opportunity to overrule prior precedent on abrogation and held that Congress could abrogate the states’ immunity only under the enforcement section of the Fourteenth Amendment and not under any other constitutional provision. Following Seminole Tribe, the Court decided Alden v. Maine,4 in which it applied the same rules to suits under federal laws in state courts. The end result was that states could not be sued for money damages in any court unless the states consented or unless Congress validly abrogated the states’ immunity under the Fourteenth Amendment.
Naturally, then, after Seminole Tribe and Alden, the focus shifted from whether Congress intended to abrogate states’ sovereign immunity to whether it had validly done so under the Fourteenth Amendment. This change might have been relatively minor if in the meantime the Court had not also decided City of Boerne v. Flores, narrowing the scope of permissible Fourteenth Amendment legislation.5
In City of Boerne, the Court considered whether the Religious Freedom Restoration Act (RFRA) was validly enacted under the Fourteenth Amendment. RFRA was a reaction to the Court’s decision in Employment Division v. Smith.6 In Smith, the Court had ruled that statutes of general applicability that were neutral on religion could be applied to religious practices even when not supported by a compelling governmental interest.7 Public reaction to this change in the law was strong, and RFRA was passed in direct response. RFRA provided that any substantial burden on religious freedom even in a neutral law would be suspect, and legislators would have to show that the statute was the least restrictive means to advance a compelling governmental interest.8 Thus, not only was RFRA an attempt to restore the prior law on the Free Exercise clause of the First Amendment, it was also a slap in the face at the Court, directly challenging its interpretation of the Constitution.
Predictably, RFRA did not receive a warm welcome when challenged. In City of Boerne, the Court found that to the extent a federal law outlawed conduct that was not unconstitutional, it could only do so in order to remedy some other constitutional violation, and there must be "a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end."9 The Court focused on the legislative history of RFRA and discovered that Congress had made no findings that governmental bodies were using neutral laws to discriminate against religions.10 Because there was no constitutional evil to remedy, the legislation was out of proportion to any existing harm and was not a proper way to "enforce" the Fourteenth Amendment.11 This test was a new and restrictive way to examine Congress’ powers under the Fourteenth Amendment, and it had immediate effects when combined with Seminole Tribe.
Challenges to the Civil Rights Laws Begin
Most civil rights legislation is premised on Congress’ Commerce Clause power, since this type of legislation primarily regulates private conduct. However, to the extent that the civil rights laws prohibit discrimination by states, they are premised on both the Commerce Clause and the Fourteenth Amendment. After Seminole Tribe and City of Boerne, these civil rights laws were subject to new attack as they applied to the states, since Congress could not abrogate immunity under the Commerce Clause any longer, and since City of Boerne narrowed the scope of permissible Fourteenth Amendment legislation. In those subsequent attacks, the test for valid Fourteenth Amendment legislation has been applied with increasing rigor.
The first civil rights statute to be challenged as it applied to the states12 was the Age Discrimination in Employment Act (ADEA). In Kimel v. Florida Bd. of Regents,13 the Court held that the ADEA was not proper legislation under the Fourteenth Amendment The analysis used by the Court was a further refinement of its City of Boerne analysis. First the Court examined congruence by comparing protection for the aged under the Fourteenth Amendment to the protection afforded by the ADEA.14 The Court noted that under the Fourteenth Amendment, states may discriminate on the basis of age as long as that discrimination is rationally related to a legitimate governmental interest.15 In other words, under the Fourteenth Amendment, classifications based on age are presumptively valid. The ADEA, on the other hand, treats age classifications as presumptively invalid, providing employers a defense to age classifications only when those classifications relate to bona fide occupational qualifications reasonably necessary to the job.16 Thus, the Court found, the ADEA prohibits conduct that is not unconstitutional.
The Court proceeded to examine whether despite this incongruence, the legislation might nonetheless be proportional to some persistent and intractable constitutional evil to be remedied.17 To evaluate proportionality, the Court first examined the legislative record to see Congress’ motivations and the end it wished to serve with the legislation.18 The Court found that the legislative record lacked evidence of a pattern of unconstitutional age discrimination by the states.19 Because there was no constitutional evil to be remedied, the ADEA lacked proportionality and was not properly enacted under the Fourteenth Amendment.20
The next civil rights statute to be addressed was Title I of the Americans with Disabilities Act (ADA), which governs employment. In Board of Trustees v. Garrett,21 the Court held that the ADA was not a valid enactment under the Fourteenth Amendment The analysis in Garrett was similar to that in Kimel, but was even more exacting. The Court first compared the reach of Title I of the ADA to what the Fourteenth Amendment required.22 Based on City of Cleburne v. Cleburne Living Center,23 the Court determined that rational basis was the level of scrutiny applicable to the disabled.24 However, the Court did not consider that the ordinance in City of Cleburne was actually struck down on the ground that the classification in that case was based on fear and negative attitudes towards the disabled, a fact significant to the dissent.25 Additionally, the Court did not closely analyze whether Title I of the ADA really created a presumption that employer actions based on disability were always invalid.26 In its proportionality inquiry, the Court’s examination of the legislative record was even more searching.27 The Court held that Congress had to find that states had an egregious pattern of discriminating in employment; examples of discrimination in employment by private employers, discrimination in employment by local government bodies, and discrimination in public access by states could not support application of the employment title against the states, nor could they support a
Congressional finding that the states had discriminated in employment.28 Not only were the main antidiscrimination provisions of Title I invalid as applied to the states, but so was the disparate impact provision, since a government action is not unconstitutional solely because it disparately impacts a protected group.29 Because the remedy in Title I was not "congruent and proportional" to any constitutional evil, the Court found that it was not a valid enactment under the Fourteenth Amendment.30
Some may think that the effects of Seminole Tribe and City of Boerne on the civil rights laws are mostly finished. After all, the ADA was a relatively recent development, and neither it nor the ADEA are popularly considered to be part of the core civil rights value system. It is easy to think of those two statutes as sort of on the outer periphery of the civil rights movement, not quite as legitimate as the rights protected by Title VII of the Civil Rights Act of 1964, which forbids employment discrimination based on race, color, national origin, religion or sex. So, even if it looks as though Title II of the ADA (governing public access) or, say, the Family Medical Leave Act are in jeopardy, the polity is sure that at least Title VII is safe. Unfortunately, however, state employees’ rights under Title VII may be in serious danger, because it has many of the same characteristics as the statutes invalidated. This is particularly true of the prohibition against sex discrimination.
The Civil Rights Act of 1964 is a broad civil rights statute aimed at ending discrimination on the basis of race, color, national origin, religion, and sex. Title VII of that statute governs discrimination in employment. When it was initially enacted, Title VII exempted state and local governments from its requirements.31 In 1972, however, Title VII was amended to remove this exemption, and the statute currently applies to state and local governments.32
If Title VII is challenged on the basis of state sovereign immunity, as it undoubtedly will, the Court will first compare the scope of protection under the Fourteenth Amendment to the scope of protection under the statute for each of the classes mentioned there. For classifications based on race, color, national origin, and religion, the Fourteenth Amendment requires strict scrutiny: the most narrowly tailored means to reach a compelling state interest.33 Classifications based on these characteristics are presumptively invalid. Likewise, the provision of Title VII that prohibits intentional employment discrimination based on race, color, national origin, and religion makes classifications based on those criteria presumptively invalid. Because this provision is perfectly congruent with the Fourteenth Amendment, the Court would likely find that it is valid under the Fourteenth Amendment.
The problems arise with the disparate impact provisions and the provisions governing sex discrimination. Neutral practices that disparately impact a protected class are not by themselves prohibited by the Fourteenth Amendment.34 Additionally, although classifications based on sex receive heightened scrutiny,35 they are not necessarily presumptively invalid in the way that Title VII provides. Because Title VII prohibits actions that may not violate the Fourteenth Amendment, the Court would review the legislative history of Title VII to determine whether its remedies were proportional to a constitutional evil.
The legislative history of Title VII is somewhat problematic. The legislative history that would matter would be the history of the 1972 amendments that allowed claims to be brought against the states. Congress rested its finding that states should be liable under Title VII on a report conducted by the United States Commission on Civil Rights in 1969.36 That report investigated public sector employment in seven urban areas and found that
widespread discrimination against minorities exists in State and local government employment, and that the existence of this discrimination is perpetuated by the presence of both institutional and overt discriminatory practices. The report cites widespread perpetuation of past discriminatory practices through de facto segregated job ladders, invalid selection techniques, and stereotyped misconceptions by supervisors regarding minority group capabilities. The study also indicates that employment discrimination in State and local governments is more pervasive than in the private sector. The report found that in six of the seven areas studied, Negroes constitute over 70 percent of the common laborers, but that most white-collar jobs were found to be largely inaccessible to minority persons. For example, in Atlanta and Baton Rouge, there were no blacks in city managerial positions.37
Of all of these facts, only an intractable problem of overt discrimination would justify prohibiting disparate impact. For race, these findings may be sufficient. However, sex is not mentioned in this section of the report, nor does the report indicate that states had ever discriminated against women in employment.
An even greater problem is that sex is not mentioned at all in the legislative history of Title VII,38 and the only facts about women in the 1972 amendments is a note that the average woman earns significantly less than the average male and that there are numerous studies showing women are pushed into less desirable jobs.39 Without some sort of evidence to support a finding that states had unconstitutionally discriminated against women in employment, and that this discrimination was a persistent intractable problem, there may not be sufficient findings to support Title VII’s sex discrimination provisions as applied to the states. The only hope is that the Court would take judicial notice of particular studies demonstrating this fact or of anecdotal evidence from that time.
Adding one more level of complication, the House report on the 1972 amendment focuses heavily on the need for uniformity of treatment between the private sector and the public sector as a reason for applying Title VII to the states.40 Uniformity across industry is a Commerce Clause concern, not a Fourteenth Amendment concern. The Court could find that uniformity was the primary goal and thus buttress any holding that Title VII’s disparate impact and sex discrimination provisions were not valid legislation under the Fourteenth Amendment.
So, what does it all mean? Well, in the end it might mean a lot, or only a little, in practical terms for state employees and for abolishing discrimination. Just because the states cannot be sued for money damages does not mean that they are not bound by these civil rights laws or that individuals lack redress. The United States can always sue a state employer for violating the law, and individuals can sue government officials for prospective injunctive relief under the doctrine of Ex Parte Young. The states can also waive their immunity through legislation or on a case by case basis. Moreover, states can be sued under any funding statute that imposes civil rights obligations and provides a private right of action. Some of these methods may not be as effective at enforcing the civil rights statutes as individual suits for money damages, and they may not compensate individuals as fully, but they will operate as some incentive for states to comply with the federal civil rights laws. Still, it is a scary prospect that Congress has been so limited in its power to enforce the Constitution, and more limitations may be on the way.
1 517 U.S. 44 (1996).
2 Id. at 65-66. This result was not an inevitable consequence of historical study. The decision was 5 to 4, and the dissent used a historical analysis to demonstrate that immunity was not part of the constitutional design. Id. at 78-93 (Souter, J., dissenting).
3 Id. at 54.
4 527 U.S. 706 (1999).
5 521 U.S. 507 (1997).
6 494 U.S. 872 (1990).
7 Id. at 878-79.
8 City of Boerne, 521 U.S. at 515 (citing 42 U.S.C. § 2000bb(a), (b)).
9 Id. at 520.
10 Id. at 530-32.
11 Id. at 532.
12 The Court had already held that the Patent Remedy Act was not a valid enactment under the Fourteenth Amendment in Florida Prepaid Postsecondary Educ. Expense Bd. v. College Savings Bank, 527 U.S. 627 (1999), but because the focus of this article is on civil rights laws, that case is not discussed in depth. It is consistent with the cases that are discussed, and demonstrates that other areas, such as bankruptcy, will be affected by the Court’s jurisprudence in this area as well.
13 528 U.S. 62 (2000).
14 Id. at 83-84.
16 Id. at 86-88 (citing 28 U.S.C. 623(f)(1) and Western Airlines, Inc. v. Criswell, 472 U.S. 400 (1985)).
17 Id. at 88.
18 Id. at 89.
20 Id. at 91.
21 531 U.S. 356 (2001).
22 Id. at 365-68.
23 473 U.S. 432 (1985).
24 Garrett, 531 U.S. at 365-68.
25 Id. at 381 (Breyer, J., dissenting).
26 See id. at 365-68.
27 Id. at 369-72.
28 Id. at 371-72.
29 Id. at 372-73.
30 Id. at 374.
31 Civil Rights Act of 1964, Pub. L. No. 88-352, § 701, 78 Stat. 240, 253 (1964).
32 Equal Employment Act of 1972, Pub. Law No. 92-261, § 2, 86 Stat. 103, 103 (1972).
33 See, e.g., Loving v. Virginia, 388 U.S. 1, 11 (1967).
34 Washington v. Davis, 426 U.S. 299, 241-42 (1976).
35 Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724 (1982).
36 H.R. Rep. No. 92-238 (1972), reprinted in 1972 U.S.C.C.A.N. 2137, 2152.
38 See S. Rep. No. 88-872 (1964), reprinted in 1964 U.S.C.C.A.N. 2355; H.R. Rep. No. 88-914 (1964), reprinted in 1964 U.S.C.C.A.N. 2391.
39 H.R. Rep. No. 92-238 (1972), reprinted in 1972 U.S.C.C.A.N. at 2140-41.
40 Id. at 2153-54.
Marcia McCormick is a Visiting Assistant Professor at Chicago-Kent College of Law. She graduated with a B.A. from Grinnell College in Iowa and with a J.D. from University of Iowa College of Law. Formerly, she was an Assistant Attorney General in the Civil Appeals Division of the Office of the Illinois Attorney General.