Employee Rights and Employment Policy Journal
| Volume 2 | 1998 | Number 1 |
By
Laurie A. McCann
The Eleventh Amendment and sovereign immunity have been the subject of recent scrutiny by the U.S. Supreme Court. In Seminole Tribe of Florida v. Florida, 116 S. Ct. 1114 (1996), the Court declared that Congress could no longer rely on its powers under the Commerce Clause to abrogate the States Eleventh Amendment immunity.Seminole, 116 S. Ct. 1114 at 1128. As a result, only the Fourteenth Amendment provides Congress with the authority to abrogate Eleventh Amendment immunity when enacting legislation. Id.In 1997, the Supreme Court revisited the Eleventh Amendment to clarify the test for determining whether a statute is Aappropriate legislation@ under 5 of the Fourteenth Amendment.City of Boerne v. Flores, 117 S. Ct. 2170 (1997).
Since the Supreme Court modified
the analysis for Eleventh Amendment immunity in Seminole and Boerne,
a number of state employers have challenged the constitutionality of the
federal Age Discrimination in Employment Act (ADEA). At the present time,
the circuits are split on the issue. The premise of this article is that
neither Seminole nor Boerne support these efforts. Congress
validly abrogated the states =
Eleventh Amendment immunity when it amended the ADEA in 1974 to reach the
states as employers. First, Congress unequivocally expressed its intent
to abrogate the States=
sovereign immunity in the language of the statute. Second, the objectives
of the 1974 amendment to the ADEA are wholly consistent with the guarantee
of equal protection found in the Fourteenth Amendment.