Climate Change Project

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Brief - May state employees sue for age discrimination under federal law? - Kimel v. Florida Board of Regents, 120 S.Ct. 631, 145 L.Ed.2d 522 (U.S. 2000)

The Age Discrimination in Employment Act of 1967 (ADEA) makes it unlawful for an employer "to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age."  In a pair of lawsuits consolidated for this appeal, university professors at state universities sued their university as employer for age discrimination.  In the lower courts, the circuits split, one finding that the plaintiffs' claim against the state was proper and the other that the claim was prohibited because congress failed to properly abrogate the state's 11th amendment immunity from suit by individuals.  (While the 11th amendment only refers to immunity from suit by citizens of other states and foreign jurisdictions, long Supreme Court precedent has included a on the federal right to allow states to be sued by their own citizens.)

The 11th amendment ban is not ablsolute, but it requires that congress invoke proper authority from body of the constitution or from the 14th amendment if it wants to give citizens the right to sue states.  The issue in these cases is whether the ADEA properly authorizes such suits.  The first step in the court's analysis is to determine whether Congress even intended to abrogate state immunity.  While there was some bickering over this issue between the judges, the majority opinion found that Congress clearly intended to abrogate state immunity and allow citizens to sue states for age discrimination.  That lead to the second issue, was this a proper exercise of 14th amendment power?

Section 1 of the 14th amendment provides: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."  Section 5 provides the enforcement authority to bar such practices: "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."

Referring to its recent 11th amendment cases, the court delineated its "congruence and proportionality" test, which requires that congress show that it is address a pattern of abuse of rights by the state that rises to constitutional significance.  This requires that congress show both that the states engage in substantial discriminatory behavior and that this behavior be unconstitutional.  The court found that age-based discrimination is not, on its face, unconstitutional because the aged are not a suspect class and because there are many situations where age is an appropriate proxy for permissible exclusions, such as fitness to do a physically demanding job.  The court found that congress did not build a record of impermissible state conduct which it was seeking to alleviate when it applied to AEDA to the states.  Finally, the court found that this same conduct was barred by state law, giving plaintiffs a remedy against the state in the state's own courts.  Based on these findings, the court held that allowing private plaintiffs to sue states under the AEDA was not a congruent and proportional remedy to alleged age discrimination by the states and found the ADEA, as it creates a right for private plaintiffs to sue the state, unconstitutional. (This ruling does not prevent the United States from enforcing the ADEA against the states though enforcement actions by the EEOC or other federal agencies.)

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