Employee Rights and Employment Policy Journal

This article describes the weighty impact of three recent Supreme Court cases on employment discrimination litigation against state employers. The three decisions: Seminole Tribe of Florida v. Florida, Idaho v. Coeur d’Alene Tribe of Idaho, and City of Boerne v. Flores, affect the power of Congress to abrogate the sovereign immunity conferred by the Eleventh Amendment in suits for monetary damages against state defendants. The article summarizes these cases, then examines the abrogation provisions of various federal laws affecting employment relations, including: Title VII, the Fair Labor Standards Act [FLSA], the Age Discrimination in Employment Act [ADEA], the Equal Pay Act [EPA] and the major federal statutes prohibiting discrimination based on disability. The article concludes that the explicit abrogation provisions in many of these statutes may have been rendered ineffective. This conclusion follows from the author’s reading of City of Boerne v. Flores, in which the Court articulated a restrictive test for Congressional power to enforce the guarantees of the Fourteenth Amendment.  

The article concludes that the power of federal courts to award monetary damages against state employers has been sharply limited. Private civil actions for violations of the federal employment discrimination laws depend heavily upon abrogation provisions that enable plaintiffs to pierce a state employer’s sovereign immunity. After Flores and Seminole Tribe, Congress may lack power to abrogate the state’s sovereign immunity, even when it legislates with unmistakable clarity. The author considers the desirability of litigating in state courts to avoid the Eleventh Amendment bar, and points out several limitations on remedies that state law may impose. These state limitations may prove burdensome to plaintiffs, but they cannot ultimately preclude the enforcement of federal rights.