The Journal of The DuPage County Bar Association

Back Issues > Vol. 13 (2000-01)

Suing States Under Federal Employment Discrimination Laws
Sharmila Roy

In Erickson v. Board of Governors,1 and Stevens v. Illinois Department of Transportation,2 two panels of the Seventh Circuit Court of Appeals held that the 11th Amendment to the United States Constitution immunizes states against suits filed by private parties in federal court under the Americans with Disabilities Act ("ADA"). These decisions came close on the heels of the Supreme Court's decision in Kimel v. Florida Board of Regents,3 where the Court held that private parties were precluded by the 11th Amendment from filing suits in federal court against states and state agencies for violations of the Age Discrimination in Employment Act ("ADEA").4 The Supreme Court will soon address the issue of the states' 11th Amendment immunity from ADA suits. A petition for certiorari was granted on April 17, 2000, in the case of Garrett v. University of Alabama Board of Trustees,5 and the Court was scheduled to hear oral argument in October.

This article attempts to explain the recent 11th Amendment decisions of the United States Supreme Court and to predict the outcome in Garrett. A short history of the Amendment and the cases decided under it prior to 1996 has been added to clarify the issues and to show the change in 11th Amendment jurisprudence that has occurred starting with the Court's decision in Seminole Tribe of Florida v. Florida.6 Finally, this article explores whether individuals can bring suit in Illinois state courts under federal employment discrimination laws, such as the ADA and the ADEA.

Origins of the Eleventh Amendment

The 11th Amendment states:

The Judicial power of the United States shall not be construed to extend to any suit, in law and equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

The Amendment was enacted as a reaction to the Supreme Court's decision in Chisholm v. Georgia.7 In that case, the executor of a South Carolina merchant brought suit in federal court to recover for supplies furnished to the state of Georgia pursuant to a contract. Jurisdiction of the federal court was based upon the so-called diversity clause in Article III, section 2, of the Constitution. That clause states, in pertinent part, as follows:

SECTION 2. The judicial power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States . . . ; to Controversies between a State and Citizens of another State . . . and between a State or the Citizens thereof, and foreign States, Citizens, or Subjects.

The controversy in Chisholm was between a South Carolina citizen and the State of Georgia, and fell, therefore, within the grant of jurisdiction as to "Controversies between a State and Citizens of another State." The Court held that suit could be filed against Georgia despite its claim of sovereign immunity.

Within days, constitutional amendments were proposed in the House of Representatives, and soon afterwards, the 11th Amendment was adopted and ratified.

The decision in Hans v. Louisiana

For almost a hundred years after the Chisholm decision, the 11th Amendment was of little consequence. Then came the decision in Hans v. Louisiana,8 where a Louisiana citizen sued to recover unpaid interest on bonds issued by Louisiana. A few years after issuing the bonds, Louisiana amended its Constitution to repudiate the obligation to pay the interest due. Hans alleged that, by enacting the amendment, Louisiana had violated art. 1, § 10 of the United States Constitution, which prohibited "Laws impairing the Obligation of Contracts."

At first blush, the 11th Amendment was not implicated in Hans' lawsuit. After all, the Amendment did not prohibit suits against states by their own citizens. Further, the language of the Amendment seemed to suggest that the immunity extended only to those suits where jurisdiction was based upon the diversity of the parties, and not to cases arising under the federal laws or the federal Constitution.

The Court paid scant attention to the latter point, saying merely that the immunity extended to both the federal question and the diversity fonts of jurisdiction.9 As far as the question whether the Amendment applied to Hans, who was a citizen of the state that he was suing, the Court found it "anomalous" and "almost an absurdity on its face" that the Amendment left the federal courts open to suit against a state by its own citizens while precluding similar suits by citizens of other states. The Court held, therefore, that 11th Amendment immunity of the state extended to the action brought by Hans.

To reach the conclusion that the 11th Amendment meant more than what it said, the Hans Court conflated the states' immunity under the Amendment with their so-called "sovereign immunity," a term usually applied to the immunity of kings against suits in their own courts. As you can probably guess, clothing the states with the immunity of kings would become problematic with those who believe that federalism is synonymous with the sovereignty of the people, or at a minimum, with dual sovereignty of the states and the nation, each in its own sphere. As Justice Breyer would put it in a later case, constitutionalizing the immunity of states against private remedies for violations of federal law is "more akin to the thought of James I than of James Madison."10

Eleventh Amendment decisions from 1890 to 1996

The Court has been bedeviled by the problem of how to accommodate the decision in Hans with the need to enforce civil rights against states. And it has chosen to solve the problem by resorting to several fictions that have stripped the Amendment of any limiting textual meaning.

The first fiction indulged in by the Court was the holding, in Ex Parte Young,11 that individuals could sue state officers in federal courts for injunctive relief against continuing constitutional violations, on the ground that state officers acting in violation of the Constitution should be "stripped of [their] official or representative character and [be] subjected . . . to the consequences of [their] individual conduct."12 Though that decision ensured that the 11th Amendment did not provide carte blanche to states to violate the Constitution, it continued the tradition begun in Hans of paying scant attention to the language of the Amendment, clothing it, instead, with the theory of federalism espoused by particular Justices who comprised the majority at any given time.

Second, while treating 11th Amendment immunity as a jurisdictional matter that could be brought up for the first time on appeal or certiorari, the Court held that states could waive their immunity and consent to suit, even though jurisdiction cannot normally be waived by the parties.13

Finally, the Court stated, in Parden v. Terminal Railway Co., that the states "had surrendered a portion of their sovereignty when they granted Congress the power to regulate commerce," and, therefore, an action could be maintained against a state-owned railway under the Federal Employers' Liability Act, which had been enacted by Congress under its interstate commerce power.14 However, Parden also set forth the doctrine of constructive waiver, whereby states were construed to have waived their immunity by agreeing to participate in federal programs, and the case appears to have been decided solely on that basis.

Twenty-five years later, the Court expressly held, in Pennsylvania v. Union Gas Co.,15 that Congress had the power to authorize damages actions against states in federal court pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, a statute enacted by Congress under its commerce clause powers.

The Effect of the Fourteenth Amendment

In Fitzpatrick v. Bitzer,16 the Court held that the 14th Amendment represented a "shift in the federal-state balance,"and that as a result, Congress could abrogate state sovereign immunity when it acts pursuant to its power under section 5 of the 14th Amendment. Justice Rehnquist, writing for the Court, stated:

[We] think that the 11th Amendment, and the principle of state sovereignty which it embodies, are necessarily limited by the enforcement provisions of § 5 of the 14th Amendment. In that section Congress is expressly granted authority to enforce 'by appropriate legislation' the substantive provisions of the 14th Amendment, which themselves embody significant limitations on state authority. . . . We think that Congress may, in determining what is 'appropriate legislation' for the purpose of enforcing the provisions of the 14th Amendment, provide for private suits against states or state officials which are constitutionally impermissible in other contexts.17

In general, of course, later constitutional amendments do not necessarily override the previous ones, but once again, the Court had no choice but to resort to that rationale because there seemed to be no other doctrinal way that Congress could have the power to abrogate the states' 11th Amendment immunity in civil rights legislation.

Seminole Tribe of Florida v. Florida

In 1996, the Court was faced with the question whether Congress could abrogate the states' 11th Amendment immunity when it legislated under the Indian commerce clause, which gives Congress the power to regulate commerce with the Indian tribes. The Indian Gaming Regulatory Act (the "Gaming Act"), passed by Congress under that clause, required Indian tribes to conduct gaming activities only in accordance with a compact between the tribe and the state where the activities were to be pursued, and imposed a duty upon the states to negotiate in good faith with tribes to form such a compact. The Gaming Act also allowed tribes to bring suit in federal court against states that violated the statutory duty, and the Seminole Tribe filed suit against the state of Florida, alleging that the state had failed to enter into good-faith negotiations with the tribe.

In a 5-4 decision, the Court overruled Union Gas, reaffirmed the rationale of Fitzpatrick, and held that Congress may abrogate the states' 11th Amendment immunity only when it satisfies two conditions: (1) it must "unequivocally [express] its intent to abrogate the immunity," and (2) it must act pursuant to a valid exercise of power under section 5 of the 14th Amendment.18 Because the Act had been passed under the Indian commerce clause, the Court held that it could not be used by Congress to abrogate state immunity.

In vigorous dissents, to be repeated over the next few years, Justices Souter, Stevens, Ginsburg, and Breyer challenged the majority's understanding of state immunity. According to the dissenters, Hans had been wrongly decided, because "[t]he history and structure of the 11th Amendment convincingly show that it reaches only to suits subject to federal jurisdiction exclusively under the citizen-state diversity clauses."19 Further, argued the dissent, Hans did not involve the question whether Congress could abrogate the states' immunity.

What is appropriate legislation under section 5 of the Fourteenth Amendment?

Because it is relatively simple for Congress to state with clarity that it intends to abrogate state immunity, the principal question to be decided in each abrogation case is whether Congress was legislating appropriately under its 14th Amendment powers. Section 5 of that Amendment gives Congress the "power to enforce, by appropriate legislation, the provisions of this Article."20 To understand the contours of that power, one needs to look at the decision in City of Boerne v. Flores.21 In that case, the Court was faced with the constitutionality of the Religious Freedom Restoration Act ("RFRA"), which forbade state governments from substantially burdening a person's exercise of religion unless the state action could be justified by a compelling state interest and shown to be the least restrictive alternative for furthering that compelling governmental interest. Congress enacted that statute, in part, to overcome the effect of the Court's decision in Employment Division v. Smith,22 where the Court held that the Constitution does not forbid states from enacting neutral laws of general applicability notwithstanding the burden on some people's religious rights. Thus, Native Americans could be denied unemployment benefits when they lost their jobs for ingesting peyote, an illegal drug, as part of their religious ceremonies.

In City of Boerne, the Court held that the RFRA was an unconstitutional exercise of Congress' section 5 power. First, whereas Congress could lawfully prevent or remedy constitutional violations, it could not redefine the substantive limits of constitutional rights.23 Further, even though Congress could legislate prophylactically, targeting some state actions that did not rise to the level of unconstitutionality, it was required to identify practices that had a significant likelihood of being unconstitutional before it could make attempts to prevent or remedy those practices. And, in order to prevent attempts at remediation from swallowing up the distinction between remedies and redefinitions of substantive rights, "[t]here must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end."24

Using that standard, the Court held that Congress had exceeded its powers when it subjected all state actions burdening religious rights to the rigorous compelling interest test, without investigating whether the states were indeed violating 1st Amendment rights by their actions.25 According to the Court, because no pattern or practice of constitutional violations had been identified, the remedies enacted by Congress were neither congruent nor proportional to the injury. Accordingly, the RFRA was not appropriate legislation under section 5 of the 14th Amendment.

The "congruence and proportionality" test of City of Boerne has been utilized by the Court in several cases involving congressional abrogation. In Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank,26 the Court held that states could not be sued in federal courts for patent infringements despite explicit congressional abrogation of the states' immunity in the Patent and Plant Variety Protection Remedy Clarification Act (the "Patent Remedy Act"). The Court acknowledged that patents were a form of property protected by the due process clause of the Fourteenth Amendment, and that Congress could lawfully abrogate the states' 11th Amendment immunity if the Patent Remedy Act constituted "appropriate" section 5 legislation. According to the Court, the question to be answered was whether "the Patent Remedy Act [could] be viewed as remedial or preventive legislation aimed at securing the protections of the 14th Amendment for patent owners."27

The answer was a resounding "No." The Court first noted that the states would be violating the procedural due process rights of injured patent owners only if they provided no remedy, or inadequate remedies, to patent owners for infringement of their patents. The Court found, however, that Congress did not sufficiently consider the availability of state remedies:

The legislative record thus suggests that the patent Remedy Act does not respond to a history of widespread and persisting deprivation of constitutional rights of the sort Congress has faced in enacting proper prophylactic § 5 legislation. Instead, Congress appears to have enacted this legislation in response to a handful of instances of state patent infringement that do not necessarily violate the Constitution. Though the lack of support in the legislative record is not determinative, identifying the targeted constitutional wrong or evil is still a critical part of our § 5 calculus because strong measures appropriate to address one harm may be an unwarranted response to another, lesser one. . . Because of this lack, the provisions of the Patent Remedy Act are so out of proportion to a supposed remedial or preventive object that [they] cannot be understood as responsive to, or designed to prevent, unconstitutional behavior.28

Once again, Justices Stevens, Souter, Ginsburg, and Breyer dissented from the "Court's aggressive sovereign immunity jurisprudence."29 The dissenters also argued that there was precise congruence between the means used (abrogation of the state's immunity), and the ends to be achieved (ensuring that all patent holders receive due process).

Kimel v. Florida Board of Regents and the ADA Decisions of the Seventh Circuit

In Kimel v. Florida Board of Regents,30 the Court held, in a 5-4 opinion authored by Justice O'Connor, that the ADEA was not appropriate legislation under section 5. The reasoning went as follows: Because the aged do not constitute a suspect class, courts are required to apply the rational basis test in evaluating age discrimination, and most state actions are upheld under that test.31 On the other hand, the ADEA prohibits employers from considering an employee's age unless age is a "bona fide occupational qualification reasonably necessary to the normal operation of the particular business."32 That requirement is considerably more stringent than what the Constitution requires, and, therefore, the ADEA prohibits substantially more state employment decisions than would likely be held irrational and thus unconstitutional. By enacting the ADEA, Congress effectively made heightened scrutiny the standard for analyzing age discrimination, and, therefore, the ADEA was subject to the same defect that had doomed the RFRA in City of Boerne. Further, Congress could not point to patterns of unconstitutional age discrimination by public entities, and, therefore, the ADEA could not be justified as a prophylactic attempt to respond to or to prevent unconstitutional behavior.

In Erickson and Stevens, the Seventh Circuit used the rationale of Kimel to hold that Title I of the ADA33 was not a "congruent and proportional" remedy for discrimination against the disabled by states and state agencies. Under Title I, an employer can discriminate against a disabled employee either by disparate treatment or by failure to make reasonable accommodation.34 An ADA plaintiff "must show (1) that she is disabled; (2) that she is otherwise qualified to perform the essential functions of the job with or without reasonable accommodation; and (3) that the employer took an adverse job action against her because of her disability or failed to make a reasonable accommodation".35

Like the ADEA, the ADA protects a non-suspect class,36 and it will be difficult for a plaintiff alleging disability discrimination to prevail under the rational basis test. More importantly, the ADA places significant affirmative obligations upon employers to make reasonable accommodations that would permit disabled employees to fulfill the essential requirements of the job that they hold or seek, unless the employer can show undue hardship. In so doing, "Title I of the ADA . . . extends beyond the anti-discrimination principle."37 Judge Easterbrook, writing the majority opinion in Erickson, found that the ADEA and the ADA were similar in that both statutes "'prohibit very little conduct likely to be held unconstitutional.'"38 According to Judge Easterbrook:

The ADA's main target is an employer's rational consideration of disabilities. Rational discrimination by definition does not violate a constitutional provision that condemns only irrational distinctions based on disabilities. . . [T]o say that in devising these new rules Congress is just "enforcing a substantive" command present in § 1 of the Fourteenth Amendment since 1868 would be a legal fiction. Boerne, Florida Prepaid, and Kimel hold that fictions do not support legislation under § 5.39

Further, the ADA could not be sustained as reasonable prophylactic legislation, because Congress "did not find that the practices labeled discrimination are irrational (as that term works under the Equal Protection Clause) or that states are major offenders. . ."40

The Stevens court pointed out that not only are state actions against the disabled viewed under a rational basis standard, "it is presumed that distinctions made by the State that are based on disability are rational and legitimate."41 Accordingly, the Constitution requires that the plaintiff bear the burden of demonstrating irrationality, whereas under the ADA, state practices do not get the benefit of the presumption and often the burden shifts to the state to show that it had a legitimate reason for its action. Further, although Congress may lawfully target some conduct that is constitutional, and although disability discrimination was well-documented when Congress enacted the ADA, the ADA sweeps too widely, catching within its net both constitutional conduct supported by a rational basis and unconstitutional, irrational discrimination. According to the Stevens court, the wide sweep shows that the ADA is "out of proportion to correcting the transgressions that do occur."42

Judge Diane P. Wood, dissenting in Erickson, contended vigorously that the legislative history did show widespread unconstitutional discrimination by states against the disabled. She pointed out that there existed specific congressional findings about pervasive discrimination in areas controlled significantly by states, such as education, health services, and transportation.43 Her observations in this regard have been utilized by the Tenth Circuit Court of Appeals to hold that the ADA was proper section 5 legislation, but other federal appellate courts have remained unconvinced.44

Given the decision in Kimel, together with the fact that the ADA places more affirmative obligations on states and state agencies than does the ADEA, it appears that the Supreme Court will hold, in Garrett, that in enacting the ADA, Congress did not have the power to abrogate the states' sovereign immunity. Even though the dissent in Erickson correctly pointed to legislative findings of disability discrimination in areas controlled by states, "there is no indication that any discrimination found by Congress was arbitrary or irrational such that it would constitute a violation of the Fourteenth Amendment."45

It remains to be seen whether the Supreme Court will find that Congress can lawfully abrogate state immunity under other federal anti-discrimination laws, such as Title VII ( at least with respect to disparate impact cases)46 , the Equal Pay Act, and the Family and Medical Leave Act.

Can ADA actions be brought in Illinois state courts?

In Erickson, Judge Easterbrook cautioned the state of Illinois that it remains bound by the ADA, because Congress has the power to bind the states when it legislates pursuant to the commerce clause, and the ADA is good commerce clause legislation.47 Also, the United States may sue the state in federal court, for the 11th Amendment has been held inapplicable to suits by the federal government.48 All that the Amendment prohibits is a private suit for damages against the state in federal court.

The ADA gives state courts concurrent jurisdiction over ADA cases. But are Illinois courts required to assert jurisdiction over ADA cases filed in state court? The answer is far from clear. The Supreme Court held, in Alden v. Maine, that Congress did not have authority under Article I to abrogate a state's immunity from suit in its own courts.49 That case involved the Fair Labor Standards Act ( "FLSA"), a statute enacted by Congress under its commerce clause powers. Under Seminole Tribe, the plaintiffs, probation officers who alleged that the state of Maine had not paid them the overtime wages required by the FLSA, could not sue the state in federal court. The question before the Court was whether the officers could bring suit in state court, despite the fact that Maine courts had dismissed the case on the basis of sovereign immunity.

The Alden Court made crystal clear that the states retained their sovereign immunity independent of and apart from the immunity set forth in the 11th Amendment :

[T]he sovereign immunity of the States neither derives from nor is limited by the terms of the Eleventh Amendment. Rather, as the Constitution's structure, and its history, and the authoritative interpretations by this Court make clear, the States' immunity from suit is a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution, and which they retain today . . . except as altered by the plan of the Convention or certain constitutional amendments.50

Given the status of the states as sovereigns, it would be offensive to give Congress the power to subject nonconsenting states to private suits in their own courts, unless it is acting appropriately under section 5. Clearly, if the ADA is not appropriate section 5 legislation, Congress cannot require the states to entertain ADA suits in their own courts.

There is a line of cases holding that state courts may not discriminate against federal causes of action, so that they may not close their doors to a federal claim if they are willing to entertain analogous state claims.51 In Alden, the Court seems to suggest that state sovereign immunity is somehow exempt from the nondiscrimination requirement. Maine courts did have the power, and, in fact, were obliged, to hear state law claims against the state for wages, and so, by holding that the Maine courts did not have to hear federal wage claims, the Court gave states the freedom to invoke their immunity from suit in a selective manner.52 The Court stated, rather cryptically, that there was no evidence that Maine had systematically manipulated its immunity in order to discriminate against federal claims.53 This was a new standard, and its contours are murky at best.

In Erickson, Judge Easterbrook did not elaborate about the new Alden standard of systematic discrimination. According to him, because Illinois has opened its courts to state law claims of disability discrimination, it may not exclude claims based on the ADA.54 A problem arises, however, because the Illinois Legislature has vested jurisdiction of all claims against the state in the Court of Claims.55 While there does exist an exception from Court of Claims jurisdiction for claims that must be filed with administrative agencies and where final orders of those agencies are to be reviewed by appellate courts,56 the exception only applies to claims that have to be initiated at the administrative level.

In Illinois, claims of employment discrimination are to be handled by the Department of Human Rights and the Human Rights Commission.57 Accordingly, the Illinois circuit courts have no jurisdiction to hear employment discrimination claims based on state law, and Illinois appellate courts may only review the decisions of those agencies for manifest error.58 The administrative agencies, in turn, have no jurisdiction over ADA or ADEA claims, and it would be impossible for a plaintiff to bring such claims before those agencies. Under these facts, it would be difficult to conclude that the state was discriminating against federal claims, systematically or otherwise, if its circuit courts did not hear ADA or ADEA actions against the state.

It seems, therefore, that the aged or disabled who are victims of employment discrimination by Illinois state agencies may not have any remedy, in either state or federal court. Their only real remedy may lie in lobbying the legislature to waive the state's immunity from suit. Citizens' groups will be well-advised to make sure that every person running for the state legislature is asked whether he or she will vote in favor of such a waiver.

1. 207 F.3d 945 (7th Cir. 2000).

2. 210 F.3d 732 (7th Cir. 2000), pet. for cert. filed, 69 USLW 3022 (June 30, 2000) (No. 00-7).

3. 120 S. Ct. 631 (2000).

4. 29 U.S.C. § 621-634.

5. 193 F.3d 1214 (11th Cir. 1999), cert. granted, 120 S. Ct. 1669 (2000).

6. 517 U.S. 44 (1996).

7. 2 U.S. (2 Dall.) 419 (1793).

8. 134 U.S. 1 (1890).

9. Id. at 10. The Judiciary Act of 1875 conferred federal question jurisdiction on the lower federal courts.

10. College Savings Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 119 S. Ct. 2219, 2284 (1999) (Breyer, J., dissenting).

11. 209 U.S. 123 (1908).

12. Id. at 127.

13. Clark v. Barnard, 108 U.S. 436, 447-48 (1883).

14. Parden v. Terminal Ry. Co., 377 U.S. 184, 190-91 (1964), overruled by College Savings Bank, 119 S. Ct. at 2241. .

15. 491 U.S. 1 (1989), overruled by Seminole Tribe, 517 U.S. at 72-73.

16. 427 U.S. 445 (1976).

17. Id. at 456.

18. Seminole Tribe, 517 U.S. at 55.

19. Id. at 80 (Souter, J., dissenting). A comparison of the language of the 11th Amendment with the diversity clause of Article III leads logically to the conclusion that the Amendment was meant to apply only to diversity actions. And, of course, Chisholm, the nullification of which was the object of the Amendment, was a diversity action.

20. U.S. Const. amend. XIV, § 5.

21. 521 U.S. 507 (1997).

22. 494 U.S. 872 (1990).

23. City of Boerne, 521 U.S. at 532.

24. Id. at 520.

25. Id. at 532-34.

26. 119 S. Ct. 2199 (1999).

27. Florida Prepaid, 119 S. Ct. at 2207.

28. Id. at 2210 (internal quotations and citations omitted).

29. Id. at 2219.

30. 120 S. Ct. 631 (2000).

31. See, e.g., City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 446 (1985)(holding that classifications based on mental disabilities must satisfy rational basis review under the Equal Protection Clause of the 14th Amendment. Under the rational basis test, the state action need only be related rationally to a legitimate state interest. The test is highly deferential. Laurence H. Tribe, American Constitutional Law, § 16-3, at 1443 (2nd ed. 1988). Thus, rational basis review will uphold classifications based on disability for any reason relevant to the state's legitimate interests, including, at least according to Judge Easterbrook, the costs of providing reasonable accommodation. Erickson, 207 F.3d at 949. The only wrinkle in this analysis comes from the fact that the Cleburne Court, using rational basis review, nevertheless struck down the municipal requirement of a special use permit for operation of a group home for the mentally retarded. 473 U.S. at 455. Similarly, in Romer v. Evans, 116 S. Ct. 1620 (1996), the Court used rational basis review but struck down an amendment to the Colorado Constitution that prohibited any legislative, judicial or executive action to protect homosexuals. If there is indeed, a sub-class of rational basis review that has "bite," and if the Court will use such biting review to evaluate a state employer's failure to accommodate the disabled, the ADA may, in fact be, as Judge Wood said in her dissenting opinion in Erickson, "a statute designed to prohibit irrational discrimination." Erickson, 207 F.3d at 956 (Diane P. Wood, J., dissenting).

32. 29 U.S.C. § 623(f)(1).

33. 42 U.S.C. §§ 12111-17.

34. See 42 U.S.C. § 12112(b)(5)(A) (defining discrimination to include failure to accommodate).

35. Stevens, 210 F.3d at 735.

36. See, e.g., City of Cleburne, 473 U.S. at 439-42; United States v. Harris, 197 F.3d 870, 873-76 (7th Cir. 1999).

37. Erickson, 207 F.3d at 949.

38. Id. (quoting Kimel, 120 S. Ct. at 648).

39. Id. at 949-50.

40. Id. at 951.

41. Stevens, 210 F.3d at 738.

42. Id. at 740.

43. Erickson, 207 F.3d at 957-58 (Diane P. Wood, J., dissenting).

44. See Cisneros v. Wilson, 2000 WL 1336658, *21 (10th Cir. 2000)(stating that the court was persuaded by the dissent of Judge Wood in Erickson). But see Lavia v. Pennsylvania Dep't of Corr., 2000 WL 1121553, *10 (3rd Cir. 2000) (holding that Congress did not validly abrogate state immunity in the ADA and dismissing Judge Wood's views as "forceful and interesting" but not dispositive of the question). See also Popovich v. Cuyahoga County Court of Common Pleas, 2000 WL 1335555 (6th Cir. 2000) (holding that Title II of the ADA was not appropriate section 5 legislation); Alsbrook v. City of Maumelle, 184 F.3d 999 (8th Cir. 1999)(en banc), cert. granted, 120 S. Ct. 1003 (Jan. 25, 2000), cert. dismissed, 2000 WL 230234 ( Mar. 2, 2000) (same). The Seventh Circuit has also held that Congress did not validly abrogate the states' Eleventh Amendment immunity in Title II of the ADA. Walker v. Snyder, 213 F.3d 344 (7th Cir. 2000).

45. Stevens, 210 F.3d at 740 n.5.

46. The 14th Amendment requires purposive discrimination, but the disparate impact features of Title VII do not require a showing of intention or purpose. Thus, there might be a question whether, in applying Title VII to the states, Congress had made a sufficient showing that the states discriminated unconstitutionally in cases of disparate impact. The 11th Circuit has held that § 5 supports the disparate impact rules. In re Employment Discrimination Litig., 198 F.3d 1305 (11th Cir. 1999). In Erickson, Judge Easterbrook said that he would leave for another day the question whether states can be sued in federal court in disparate impact cases. 207 F.3d at 952.

47. Garcia v. San Antonio Metropolitan Transit Auth., 469 U.S. 528 (1985).

48. United States v. Mississippi, 380 U.S. 128, 140-41 (1965).

49. Alden v. Maine, 119 S. Ct. 2240 (1999).

50. Id. at 2264.

51. See, e.g., Hilton v. South Carolina Pub. Rys. Comm'n, 512 U.S. 197, 207 (1991); Testa v. Katt, 330 U.S. 386 (1947).

52. Maine had waived its immunity from suit under the state's wage laws. Alden v. State, 715 A.2d 172, 175 (Me. 1998), aff'd, 119 S. Ct. 2240 (1999). Maine law did not entitle public employees to increased pay for overtime. However, nothing in the Court's opinion in Alden suggests that the ruling is restricted to the overtime provisions of the FLSA.

53. Alden, 119 S. Ct. at 2268. In Testa, 330 U.S. 386 (1947), the Court held that state courts may not discriminate against federal causes of action and must exercise jurisdiction if the same type of claim arising under state law would be enforced by state courts. Now that Alden has curbed Congress' ability to force state courts to administer federal law, it is not clear whether the Supreme Court still retains the power to conscript state courts for federal purposes. If it does, where does that power come from?

54. Erickson, 207 F.3d at 952.

55. 705 ILCS 505/1 et. seq. (1998).

56. 705 ILCS 505/8(a)(ii) (1998).

57. See 775 ILCS 5/7A-102 (1998) (giving Department of Human Rights the jurisdiction to receive charges of employment discrimination, conduct an investigation, and either dismiss the complaint or file a written complaint with the Human Rights Commission); 775 ILCS 5/8A-103 (1998)( authorizing the Human Rights Commission to hold hearings and issue a final order).

58. See 775 ILCS 5/8-111(A)(1) (1998) (authorizing appellate court review of final orders entered under the Illinois Human Rights Act). On appellate review, "the Commission's findings and conclusions of fact are deemed prima facie true and correct. . . and 'shall be sustained unless the court determines that such findings are contrary to the manifest weight of the evidence.'" Szkoda v. Human Rights Comm'n, 302 Ill. App. 3d 532, 706 N.E.2d 962, 968 (1st Dist. 1998) (quoting 775 ILCS 5/8-111(A)(2) (1996)).

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