Kimel v. Fla. Bd. of Regents: Sovereign Immunity and the Age Discrimination in Employment Act

In Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 120 S. Ct. 631 (2000), the Supreme Court held that although the Age Discrimination in Employment Act contains a clear statement of Congress’ intent to abrogate the States’ sovereign immunity, that abrogation exceeded Congress’ authority under § 5 of the Fourteenth Amendment. Consequently, under Kimel, State employees are generally not able to sue their State employers for money damages arising from violations of the ADEA. State employees may have age discrimination damages claims, however, under State laws that abrogate sovereign immunity. 

Statutory Background

The Age Discrimination in Employment Act of 1967 (ADEA)  makes it unlawful for an employer, including a State, “to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual … because of such individual’s age.” 29 U.S.C. § 623(a)(1)

Generally, States have sovereign immunity from suits for money damages unless that immunity has been validly abrogated, either by the State in question or by Congress. 

Facts

Kimel and other plaintiffs filed suit under the ADEA against their State employers. The plaintiffs’ suits sought money damages for the State employers’ alleged discrimination on the basis of age. The State employers moved to dismiss the suits on the basis of sovereign immunity under the Eleventh Amendment. 

The trial court in one case granted the motion to dismiss, while in each of the remaining cases the trial court denied the motion. All three decisions were appealed and consolidated before the Eleventh Circuit. In a divided panel opinion, the Eleventh Circuit held that the ADEA does not abrogate the States’ Eleventh Amendment immunity.

The Court’s Decision

The Court affirmed. It held that although the ADEA does contain a clear statement of Congress’ intent to abrogate the States’ immunity, that abrogation exceeded Congress’ authority under § 5 of the Fourteenth Amendment.

First, the Court observed that the ADEA satisfies the test to determine whether a federal statute properly subjects States to suits by individuals: Congress made its intention to abrogate the States’ immunity unmistakably clear in the language of the statute. The ADEA states that its provisions “shall be enforced in accordance with the powers, remedies, and procedures provided in sections 211(b), 216 (except for subsection (a) thereof), and 217 of this title, and subsection (c) of this section.” 29 U.S.C. § 626(b). Section 216(b), in turn, authorizes employees to maintain actions for backpay “against any employer (including a public agency) in any Federal or State court of competent jurisdiction ….” And Section 203(x) defines “public agency” to include “the government of a State or political subdivision thereof,” and “any agency of … a State, or a political subdivision of a State.” 

With these provisions in mind, the Court determined that the text of § 626(b) foreclosed the State employers’ argument that the existence of an enforcement provision in the ADEA itself rendered Congress’ intent to incorporate § 216(b)‘s clear statement of abrogation ambiguous. Similarly, the Court determined that Congress’ use of the phrase “court of competent jurisdiction” in § 216(b) also does not render its intent to abrogate less than clear. Finally, the Court found that because the clear statement inquiry focuses on what Congress enacted, not when it did so, the Court would not infer ambiguity from the sequence in which a clear textual statement is added to a statute. 120 S. Ct. at 640–642.

Second, the Court acknowledged that it previously held, in EEOC v. Wyoming, 460 U.S. 226, 243 (1983), that the ADEA constitutes a valid exercise of Congress’ Article I Commerce Clause power. The Court observed, however, that as it held in Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 72–73 (1996), Congress’ powers under Article I do not include the power to subject States to suit at the hands of private individuals. But Section 5 of the Fourteenth Amendment does grant Congress the authority to abrogate the States’ sovereign immunity. 120 S. Ct. at 642–644, citing Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976).

The Court then discussed how Section 5 of the Fourteenth Amendment is an affirmative grant of power to Congress. That power includes the authority both to remedy and to deter the violation of rights guaranteed thereunder by prohibiting a somewhat broader swath of conduct, including conduct which is not itself forbidden by the text of the Amendment. But as the Court held in City of Boerne v. Flores, 521 U.S. 507, 517, 519 (1997), Congress cannot decree the substance of the Fourteenth Amendment’s restrictions on the States. The Court held that the ultimate interpretation and determination of the Fourteenth Amendment’s substantive meaning is the province of the Judicial Branch. And in City of Boerne, 521 U.S. at 520, the Court held that for remedial legislation to be appropriate under § 5, “[t]here must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.” 120 S. Ct. at 644–645.

With these principles in mind, the Court held that the ADEA was not “appropriate legislation” under § 5 of the Fourteenth Amendment. The ADEA’s purported abrogation of the States’ sovereign immunity was therefore invalid. 120 S. Ct. at 645–650.

The Court’s rationale was two-fold. First, it found that the substantive requirements the ADEA imposes on state and local governments were disproportionate to any unconstitutional conduct that conceivably could be targeted by the ADEA. For instance, age is not a suspect classification under the Equal Protection Clause. States therefore may discriminate on the basis of age without offending the Fourteenth Amendment if the age classification in question is rationally related to a legitimate state interest. 

This is a lenient standard. The Court observed that the rationality required by the Equal Protection Clause does not require States to match age distinctions and the legitimate interests they serve with extreme precision. Rather, the Court found that a State may rely on age as a proxy for other qualities, abilities, or characteristics that are relevant to the State’s legitimate interests. The fact that age may turn out to be an inaccurate proxy in some cases was, to the Court, irrelevant. 120 S. Ct. at 645-648.

For these reasons, given the backdrop of the Court’s equal protection jurisprudence, the Court, citing City of Boerne at 532, found that the ADEA is “so out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior[.]” The Court reasoned that the ADEA, through its broad restriction on the use of age as a discriminating factor, prohibits substantially more state employment decisions and practices than would likely be held unconstitutional under the applicable equal protection, rational basis standard. 120 S. Ct. at 645-648.

The Court then rejected the employees’ reliance on the “bona fide occupational qualification” defense of § 623(f)(1). The Court observed that its decision in Western Air Lines, Inc. v. Criswell, 472 U.S. 400 (1985), demonstrated that the BFOQ defense is very different from the rational basis standard the Court applies to age discrimination under the Equal Protection Clause. The Court pointed out that although the existence of the defense makes the ADEA’s prohibition of age discrimination less than absolute, the ADEA’s substantive requirements still remained at a level akin to the Court’s heightened scrutiny cases under the Equal Protection Clause. The Court found that the exception in § 623(f)(1) that permits employers to engage in conduct otherwise prohibited by the ADEA “where the differentiation is based on reasonable factors other than age” confirms, rather than disproves, the conclusion that the ADEA extends beyond the requirements of the Equal Protection Clause. That RFOTA exception makes clear that the employer cannot rely on age as a proxy for an employee’s characteristics, Hazen Paper Co. v. Biggins, 507 U.S. 604, 611 (1993), whereas the Constitution allows such reliance. 120 S. Ct. at 645-648.

Second, the Court observed that the fact that the ADEA prohibits little conduct likely to be held unconstitutional, while important, does not alone provide the answer to the § 5 inquiry. The Court observed that difficult and intractable problems often require powerful remedies, and the Court had never held that § 5 precludes Congress from enacting reasonably prophylactic legislation. 

One way the Court, in City of Boerne, at 530-531, had determined the difference between a statute that constitutes an appropriate remedy and one that attempts to substantively redefine the States’ legal obligations was by examining the legislative record containing Congress’s rationale. The Court found that a review of the ADEA’s legislative record as a whole revealed that Congress had virtually no reason to believe that state and local governments were unconstitutionally discriminating against their employees on the basis of age. In the legislative record, Congress never identified any pattern of age discrimination by the States, much less any discrimination that rose to the level of constitutional violation. The Court reasoned that that failure confirmed that Congress had no reason to believe that broad prophylactic legislation was necessary in this field. 120 S. Ct. at 648–650.

Therefore, the Court found that the ADEA did not validly abrogate the States’ sovereign immunity. But the Court cautioned that its decision did not mean the end of the line for employees subjected to age discrimination at the hands of their state employers. The Court found that some employees are protected by state age discrimination statutes, and may recover money damages from their state employers under those state laws.  120 S. Ct. at 650.

Analysis

In sum, Kimel held that although the ADEA contains a clear statement of Congress’ intent to abrogate the States’ sovereign immunity, that abrogation exceeded Congress’ authority under § 5 of the Fourteenth Amendment. Consequently, State employees are generally not able to sue their State employers for money damages arising from violations of the ADEA. State employees may have age discrimination damages claims, however, under state laws that abrogate sovereign immunity. 

This article was also published on TimCoffieldAttorney.net.

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