(Un)Equal Employment Opportunity: How State Employees can Overcome the Sovereign Immunity Doctrine

The Eleventh Amendment of the U.S. Constitution states that:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.¹

Le Roy Torres was a U.S. Army veteran and former Texas state trooper who sought reemployment from the Texas Department of Public Safety. During his deployment to Iraq in 2007, Torres suffered severe lung damage due to exposure from burn pits. This damage eventually left Torres with long-term health complications, ultimately leaving him unfit for duty as a state trooper upon his discharge from the Army. As a result, Torres requested the Texas Department of Public Safety to reemploy him in an occupation that could accommodate his disabilities. The department rejected his request, prompting Torres to sue the department in Texas state court under the Uniformed Services Employment and Reemployment Rights Act. However, the department argued that as a state agency, it was immune from suit, a claim that was backed by both the Texas Court of Appeals and the Texas Supreme Court.²

However, in March of 2021, the Supreme Court of the United States granted certiorari and agreed to hear oral arguments for Torres’s case. Months later, on June 29, 2022, the Court narrowly decided 5-4 that “Congress properly exercised its power to raise and support the Armed Forces when it authorized private damages suits against nonconsenting States.”³ Through this interpretation, the USERRA statute that Congress passed in 1994 mandates “returning veterans [from deployment have] the right to reclaim their prior jobs with state employers and authorizes suit if those employers refuse to accommodate them.”⁴ Although this case, Torres v. Texas Department of Public Safety, addresses a seemingly niche issue surrounding the legal purview of veterans’ employment rights under state employers, with respect to the historical context of this case, it sheds light on a ubiquitous problem in need of a remedy. Alongside cases like Alden v. Maine (1999) and Kimel v. Florida Board of Regents (2000), Torres v. Texas Department of Public Safety attempts to clarify the Supreme Court’s obscure understanding on the scope of states’ rights under the Eleventh Amendment when faced with suits filed by state employees.

In order to understand the crux of this constitutional matter, it is imperative to scrutinize the “state sovereign immunity” doctrine under the Eleventh Amendment. The state sovereign immunity doctrine postulates that a state cannot be sued in federal and state court without its consent.⁵ However, a “state's sovereign immunity may be abrogated if an individual is suing under a federal law that was enacted pursuant to Congress' power under Section 5 of the Fourteenth Amendment.”⁶ In spite of this, as seen in Torres v. Texas Department of Public Safety, it is an arduous and time-consuming process for state employees to file suit against states, yet alone abrogate state sovereign immunity. Even more, such attempts have often shown to be unsuccessful. In the 2000 Supreme Court decision Kimel v. Florida Board of Regents, the Age Discrimination in Employment Act — a socially significant federal equal employment protection statute — was deemed to have not abrogated states’ immunity. As an implication of this ruling, Wellington Dickson, a Florida Department of Corrections officer who filed suit against his state employer on the pretext of age discrimination, had his suit voided.⁷

As shown by the examples above, state sovereign immunity has historically deterred state employees like Torres and Dickson from pursuing legal action against state governments even if accused of violating federal statutes. Although Congress has enacted various labor laws to protect and uphold fair employment practices for Americans of all diverse backgrounds, the sovereign immunity doctrine insulates states from private suits in federal and state courts, rendering state employees vulnerable and defenseless to employment discrimination. With this being the case, in order to significantly reduce incidents of employment discrimination against state employees, the federal government can directly bring suit against states that do not afford effective legal protection from employment discrimination relative to current federal labor laws. If that option is not viable, the federal government can also amend current employment discrimination laws, enabling private citizens (including state employees) to bring suit in the name of the federal government.

Before the aforementioned proposal is unpacked and explained, it is essential to understand the history behind the Eleventh Amendment. The Eleventh Amendment was first ratified on February 7, 1795, in response to a Supreme Court decision that alarmed and enraged many federal lawmakers and state governments. In 1793, the Supreme Court decided 4-1 in Chisholm v. Georgia that Alexander Chisholm reserved the right to sue the state of Georgia over monetary damages. Despite Georgia’s claims that, as a sovereign state, it possessed immunity from suit, the court overruled on the pretext that “Article 3, Section 2, of the Constitution abrogated the states’ sovereign immunity and granted federal courts the affirmative power to hear disputes between private citizens and states.”⁸ Although Georgia failed to realize their claim through the Supreme Court, it was achieved a few years later by federal lawmakers and states who galvanized to propose and ratify the Eleventh Amendment — effectively overturning Chisholm v. Georgia and safeguarding states’ rights to sovereign immunity.

Over 200 years later, in 1999, the sovereign immunity doctrine under the Eleventh Amendment once again found itself at the center of a contentious Supreme Court hearing, Alden v. Maine, but under distinct circumstances. In this case, “probation officers sued their employer, the State of Maine, in 1992 alleging that the state had violated the overtime provisions of the 1938 Fair Labor Standards Act.”⁹ A crucial component of this case is that it posed a vital question to the court, effectively deciding if federal statutes can be enforced for state employees: Can Congress use its powers under Article I of the Constitution to abrogate a state’s sovereign immunity from private suits in its own courts, thereby enabling individuals to sue a state by claiming a federal right? To the dismay of the probation officers, the Supreme Court narrowly decided 5-4 in favor of Maine, reaffirming the lower court’s decision to dismiss the suit as “immunity from suit” — a fundamental aspect of the state’s sovereignty protected by the Eleventh Amendment.¹⁰

A critique of this argument is that it fails to address the insurmountable risk state employees face if subject to employment discrimination. Just like any other employee in America, state employees are also vulnerable to employment rights violations by their employers — in this case, state governments. In the event that a violation occurs, Alden v. Maine virtually nullifes all federal employment rights that are meant to protect state employees. The magnitude of this concern is also evident when examining the transcription of the oral announcement for the opinion on Alden v. Maine. Justice Souter relays a critical insight into the effect of the court’s decision in his dissent. He warns the American people that, as a consequence of Alden v. Maine, state employees “have a right in theory [to sue states] but have no means of enforcing that right when the state refuses to obey the terms of the [Fair Labor Standards] Act and refuses to pay them what the Act requires them to pay…though the national government can sue, the fact remains that as a result [of Alden v. Maine], state employees have federal rights that they themselves cannot enforce.”¹¹

However, in Alden v Maine, the Supreme Court affirmed a vital point that could potentially open a possibility for suit against states. In writing the majority opinion, Justice Kennedy recognized that “states have consented, moreover, to some suits pursuant to the plan of the Convention…in ratifying the constitution, the States consented to suits brought by other States or by the Federal Government'' — a notion previously confirmed in 1934 by the Supreme Court in Principality of Monaco v. State of Mississippi.¹² With this argument in mind, a logical extension would be that the federal government directly brings suit against a state on behalf of citizens affected by federal statutory violations, in this case, state employees.

Although this course of action seems entirely feasible, regrettably, complicated challenges stand in the way. Like any party plaintiffs in judicial proceedings, the United States “must have an interest in the subject matter and a legal right to the remedy sought.”¹³As a consequence of this limitation, when peering back in the history of the Supreme Court, cases involving the United States as a plaintiff are rare. However, when such cases did occur, the federal government primarily sued states over disputes involving land jurisdiction. Furthermore, it was improbable for the United States to foresee success in representing private citizens, particularly state employees, affected by federal statutory violations.

Despite the federal government’s historical disinterest and lack of legal confidence in bringing suit against states on behalf of private citizens, in 2000, an attorney posed a unique and novel question to the Court that ascertained the possibility of a private citizen to bring suit against a state — specifically by filing suit in the name of the federal government. In Vermont Agency of Natural Resources v. United States, Jonathan Stevens, a former attorney for the Vermont Agency of Natural Resources, filed suit against his former employer — the agency — under the False Claim Act (a federal statute).¹⁴ A distinctive feature of the case, however, was that rather than filing suit on the pretext of employment discrimination, Stevens sued in order to hold the agency civilly liable for “submitt[ing] false claims to the Environmental Protection Agency (EPA) in order to induce the EPA to disburse more grant money than it was entitled to receive.”¹⁵ Stevens argued that under the False Claim Act, “a private person (the relator) may bring a qui tam civil action ‘in the name of the [Federal] Government,’ against ‘[a]ny person’ who, ‘knowingly presents… to…the…Government…a false or fraudulent claim for payment[.]’”¹⁶ Although the Court ultimately decided against Stevens’ case, contending that states do not constitute as "persons" who can be sued under the False Claims Act, Justice Stevens dissent stated that there is convincing evidence — historical and textual — to argue otherwise. Therefore, it would be ideal and possible for the federal government to exercise its enumerated power and amend employment statutes in a manner similar to the False Claim Act, while also confirming private citizens’ right to bring suit against states too.

Although the United States Supreme Court recently decided in favor of former veterans like Torres to seek employment from state employers without risk of discrimination, this is a minute step towards progress for state employees fighting for absolute, equal employment protections. As seen by the precedents laid down in Alden v. Maine and Kimel v. Florida Board of Regents, state employees do not have the legal ability to enforce federal employment statutes afforded to them. Yes, certain federal statutes can be enforced by state employers through administrative action and state employees can have recourse under applicable state equal employment laws. However, these options do not provide state employees complete protection from employment discrimination.¹⁷ Whether the federal government or private citizens (by using the federal government’s name) attempt to bring suit against states under federal employment statutes, state employees must also recognize the capability of Congress — legislation is the most dominant means in strengthening suits in court.

References

1. “11th Amendment,” LII / Legal Information Institute, accessed October 30, 2022, https://www.law.cornell.edu/constitution/amendmentxi. ↩

2. “The Court’s Latest Dive into State Sovereign Immunity Pits Military Veterans against State Agencies - SCOTUSblog,” accessed October 30, 2022, https://www.scotusblog.com/2022/03/the-courts-latest-dive-into-state-sovereign-immunity-pits-military-veterans-against-state-agencies/.  ↩

3. “Torres v. Texas Department of Public Safety,” Oyez, accessed October 30, 2022, https://www.oyez.org/cases/2021/20-603. ↩

4. Torres v. Texas Department of Public Safety, U.S. (2022).  ↩

5. Allison Gilmore, “State Sovereign Immunity,” National Association of Attorneys General, November 12, 2017, https://www.naag.org/attorney-general-journal/state-sovereign-immunity/. ↩

6. U.S Congressional Research Service. Legal Issues Affecting the Right of State Employees to Bring Suit Under the Age Discrimination in Employment Act and Other Federal Labor Laws (RL30364; Mar. 1, 2000). Text in: ProQuest^® Congressional Research Digital Collection; Accessed: October 30, 2022.  ↩

7. O’Connor, Kimel v. Florida Bd. of Regents (Opinion of the Court), U.S. (U.S. Supreme Court 2000). ↩

8. “Chisholm v. Georgia,” Oyez, accessed October 30, 2022, https://www.oyez.org/cases/1789-1850/2us419. ↩

9. “Alden v. Maine,” Oyez, accessed October 30, 2022, https://www.oyez.org/cases/1998/98-436. ↩

10. Ibid. ↩

11. Ibid.  ↩

12. Alden v. Maine, 755 U.S. 527 (1999).  ↩

13. “Cases to Which the United States Is a Party,” Justia Law, accessed October 30, 2022, https://law.justia.com/constitution/us/article-3/28-cases-to-which-the-united-states-is-a-party.html. ↩

14. “Vermont Agency of Natural Resources v. United States Ex Rel. Stevens,” Oyez, accessed October 30, 2022, https://www.oyez.org/cases/1999/98-1828. ↩

15. Ibid. ↩

16. Vermont Agency of Natural Resources v. United States ex rel. Stevens, 765 U.S. 529 (2000).  ↩

17. U.S Congressional Research Service. “Legal Issues Affecting the Right of State Employees to Bring Suit Under the Age Discrimination in Employment Act and Other Federal Labor Laws” (RL30364; Mar. 1, 2000). Text in: ProQuest^® Congressional Research Digital Collection; Accessed: October 30, 2022.  ↩