Legal Issues Affecting the Right of State Employees to Bring Suit Under the Age Discrimination in Employment Act and Other Federal Labor Laws

Legal Issues Affecting the Right of State Employees to Bring Suit Under the Age Discrimination in Employment Act and Other Federal Labor Laws

Order Code RL30364
CRS Report for Congress
Received through the CRS Web
Legal Issues Affecting the Right of State
Employees to Bring Suit Under the Age
Discrimination in Employment Act and Other
Federal Labor Laws
Updated March 1, 2000
(name redacted)
Legislative Attorney
American Law Division
Congressional Research Service ˜ The Library of Congress

ABSTRACT
This report discusses recent legal developments regarding the right of state employees to bring
suit under federal law. The report focuses on labor and employment laws. On January 11,
2000, the United States Supreme Court held in Kimel v. Florida Board of Regents that state
employees could not bring suit against a state under the Age Discrimination in Employment
Act (ADEA) because of sovereign immunity. This issue has a direct impact on Congress’
ability to enact legislation, particularly labor laws, that apply to state employees. This report
also discusses Seminole Tribe of Florida v. Florida, Alden v. Maine, City of Boerne v.
Flores, Ex Parte Young, and Florida Prepaid Postsecondary Ed. Expense Bd. v. College
Savings Bank. This report will be updated as developments warrant. For information on
related topics see CRS Report RS20472, The Americans with Disabilities Act: Eleventh
Amendment Issues, by Nancy Jones (February 16, 2000) and CRS Report RL30315,
Federalism and the Constitution: Limits on Congressional Power, by (name redacted)
(Sept. 21, 1999).

Legal Issues Affecting the Right of State Employees to Bring
Suit Under the Age Discrimination in Employment Act and
Other Federal Labor Laws
Summary
This report discusses recent legal developments regarding the right of state
employees to bring suit under federal law. On January 11, 2000, the United States
Supreme Court decided Kimel v. Florida Board of Regents. The case addressed the
right of state employees to bring suit under the Age Discrimination in Employment
Act (ADEA). The ADEA prohibits discrimination in employment based on age. The
Court held that state employees cannot bring suit against the state to enforce the
ADEA because of sovereign immunity. A related case brought by a state employee
under the Americans with Disabilities Act (ADA) is awaiting response from the
Supreme Court. Under the 11th Amendment of the U.S. Constitution, states are
immune from suit unless the state consents or an exception applies. This is not the
first time the Court has addressed the scope of states’ rights. The Kimel case reflects
a growing jurisprudence governing the interaction between the federal government
and states. This issue has a direct impact on Congress’ ability to enact legislation,
particularly labor laws, that apply to state employees. This report also discusses
Seminole Tribe of Florida v. Florida, Alden v. Maine, City of Boerne v. Flores, Ex
Parte Young, and Florida Prepaid Postsecondary Ed. Expense Bd. v. College
Savings Bank.

Contents
11th Amendment and Recent U.S. Supreme Court Decisions . . . . . . . . . . . 1
Suit under Section 5 of the Fourteenth Amendment . . . . . . . . . . . . . . . . . . 4
Kimel v. Florida Board of Regents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Impact of the Kimel Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Legal Issues Affecting the Right of State
Employees to Bring Suit Under the Age
Discrimination in Employment Act and Other
Federal Labor Laws
On January 11, 2000, the United States Supreme Court held in Kimel v. Florida
Board of Regents that state employees could not bring suit against a state under the
Age Discrimination in Employment Act (ADEA) because of sovereign immunity.1
The ADEA prohibits discrimination in employment based on age.2 Under the 11th
Amendment of the U.S. Constitution, states are immune from suit unless the state
consents or an exception applies. This is not the first time the Court has addressed the
scope of states’ rights. The Kimel case reflects a growing jurisprudence governing the
interaction between the federal government and states. This issue has a direct impact
on Congress’ ability to enact legislation, particularly labor laws, that apply to state
employees. This report discusses the cases that have preceded Kimel and then
provides a discussion of the Kimel decision.
11th Amendment and Recent U.S. Supreme Court Decisions
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.3
The U.S. Supreme Court has interpreted this constitutional provision in a number of
decisions. A long history precedes the present series of cases.4 The most significant
of recent cases includes Seminole Tribe of Florida v. Florida in which the Court held
that the “Eleventh Amendment prevents congressional authorization of suits by
1139 F.3d 1426 (11th Cir. 1998), reh’g denied, 157 F.3d 908 (11th Cir. 1998), cert. granted,
67 U.S.L.W. 3464 (U.S. Jan. 25, 1999)(No. 98-791)(No. 98-796), aff’d, No. 98-791, No. 98-
796, slip op. (U.S. Jan. 11, 2000).
2For a detailed discussion of the Age Discrimination in Employment Act, see CRS Report 97-
479, The Age Discrimination in Employment Act (ADEA): Overview and Current Legal
Developments, by (name redacted).
3U.S. Const. amend. XI.
4For a detailed discussion of the evolution of the 11th Amendment, see CRS Report RL30315,
Federalism and the Constitution: Limits on Congressional Power, by (name redacted)
(Sept. 21, 1999).

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private parties against unconsenting States.”5 The Court used a two-part test to
determine whether Congress had properly “abrogated the State's immunity from
suit.”6 The first part of the test was whether Congress explicitly expressed its intent
to unilaterally abrogate state immunity, and the second was whether Congress had
exercised proper authority in doing so. According to the Seminole Tribe Court,
“Congress' intent to abrogate the States' immunity from suit must be obvious from a
'clear legislative statement.'”7 The Court stated that authorizing suit in federal court
is not enough to show Congress intended to abrogate state immunity.8 Further, the
Court noted that “mere receipt of federal funds cannot establish that a State has
consented to suit in federal court.”9 After finding express intent to abrogate state
immunity in the text of the statute in question, the Court turned its attention to
whether Congress had exercised valid authority. Chief Justice Rehnquist, writing for
the majority, “held that through the Fourteenth Amendment, federal power extended
to intrude upon the province of the Eleventh Amendment and therefore that § 5 of the
Fourteenth Amendment allowed Congress to abrogate the immunity from suit
guaranteed by that Amendment.”10 Section 5 of the Fourteenth Amendment gives
Congress the power to enforce the provisions of the Fourteenth Amendment.11
However, the statute in question was enacted pursuant to Congress' power under the
Indian Commerce Clause of the Constitution.12 The Court held that neither the Indian
Commerce Clause nor the Interstate Commerce Clause provided Congress authority
to abrogate a state's sovereign immunity under the 11th Amendment.13
In its most recent term, the Court revisited the scope of the 11th Amendment in
a series of cases. In Alden v. Maine, a group of state employees filed suit against the
state to recover under the Fair Labor Standards Act (FLSA).14 The federal district
court dismissed the action based on the Court's decision in Seminole Tribe. The
employees re-filed the case in state court which also dismissed the case on grounds
of sovereign immunity. However, the Maine Supreme Court's decision conflicted
with a decision by the Arkansas Supreme Court. The U.S. Supreme Court took the
5517 U.S. 44, 72 (1996). According to the Court, “The Eleventh Amendment prohibits
Congress from making the State of Florida capable of being sued in federal court.” Id. at 76.
6517 U.S. at 55.
7517 U.S. at 55 (quoting Green v. Mansour, 474 U.S. 64, 68 (1985)).
8517 U.S. at 56.
9517 U.S. at 59 (quoting Atascadero State Hospital v. Scanlon, 473 U.S. 234, 238-239
(1985)).
10517 U.S. at 59. See Fitzpatrick v. Bitzer, 427 U.S. 445, 452-456 (1976).
11Section 1 of the Fourteenth Amendment states in part that: “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.” U.S. Const. amend.
XIV, § 1.
12U.S. Const. art. 1, § 8, cl. 3.
13517 U.S. at 72-73.
14527 U.S. ____, No. 98-436 (U.S. June 23, 1999).

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appeal to decide whether such claims could proceed in state court, even though the
11th Amendment applies only to federal courts. Ultimately, the Court held that “the
powers delegated to Congress under Article I [Interstate Commerce Clause] of the
United States Constitution do not include the power to subject nonconsenting States
to private suits for damages in state courts.”15
In conclusion, the Court noted that states can be sued under limited
circumstances: states may be sued if they consent;16 the United States may bring suit
against a state; and a state may be sued to enforce legislation enacted pursuant to §
5 of the Fourteenth Amendment. The Court also noted that the 11th Amendment only
concerns suits against states, but it did not “extend to suits prosecuted against a
municipal corporation or other governmental entity which is not an arm of the
State.”17 Nor does the 11th Amendment “bar all suits against state officers.”18 The
Court stated:
The rule, however, does not bar certain actions against state officers for injunctive
or declaratory relief. . . . Even a suit for money damages may be prosecuted
against a state officer in his individual capacity for unconstitutional or wrongful
conduct fairly attributable to the officer himself, so long as the relief is sought not
from the state treasury but from the officer personally.19
The rule established under Ex Parte Young allows an individual to bring suit for
prospective or injunctive relief against a state officer to prevent the officer from
continued violations of the statute.20 Such an injunction preventing future violation
by a state official could be enforced in federal or state court and would effectively
prevent the state, through its officers, from continuing to violate federal law.
In Alden, the Court noted that the federal government retains the right to sue a
state to enforce federal law. A logical extension of this could be the United States
bringing suit under federal law against a state on behalf of affected citizens. But, it
15No. 98-436, slip op. at 2.
16 The Court has made it clear in numerous decisions that a “State's consent to suit must be
'unequivocally expressed.'” No. 98-149, slip op. at 8 (quoting Pennhurst State School and
Hospital v. Halderman, 465 U.S. 89, 99 (1984). See also Atascadero State Hospital v.
Scanlon, 473 U.S. 234, 241(1985). See also College Savings Bank v. Florida Prepaid
Postsecondary Education Expense Board, 527 U.S.____, No. 98-149 (U.S. June 23)
(rejecting argument that Florida voluntarily or impliedly waived its sovereign immunity by
participating in interstate commerce activities regulated by federal law.). In Seminole Tribe,
the Court stated that “mere receipt of federal funds cannot establish that a State has consented
to suit in federal court.” 517 U.S. at 59 (quoting Atascadero State Hospital v. Scanlon, 473
U.S. 234, 238-239 (1985). Consent may be shown where “the State voluntarily invokes
[federal court] jurisdiction or else if the State makes a 'clear declaration' that it intends to
submit itself to [federal court] jurisdiction.” No. 98-149, slip op. at 8 (citations omitted).
17No. 98-436, slip op. at 47.
18No. 98-436, slip op. at 48. See Ex parte Young, 209 U.S. 123 (1908).
19No. 98-436, slip op. at 48.
20209 U.S. 123 (1908)

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is not completely clear whether the government could do so. The issue may be
addressed by the Court in its current term when it will decide whether the United
States can authorize citizens to sue states in the name of the United States.21
Suit under Section 5 of the Fourteenth Amendment
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. Section 1 of the Fourteenth Amendment states in part that,
“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.”22 Section 5 of the Fourteenth
Amendment states that, “The Congress shall have power to enforce, by appropriate
legislation, the provisions of this article.”23
In City of Boerne v. Flores, the Court struck down the Religious Freedom
Restoration Act (RFRA) on the grounds that the enactment of RFRA exceeded
Congress’ power.24 RFRA provided that the government could not burden a person’s
exercise of religion, even by a generally applicable law, unless the government showed
that the burden “(1) is in furtherance of a compelling governmental interest; and (2)
is the least restrictive means of furthering that compelling governmental interest.”25
RFRA applied to any federal, state, or local government statute, ordinance or
regulation. RFRA was enacted in response to the Court’s decision in Employment
Div., Dept. Of Human Resources of Oregon v. Smith,26 which “held that neutral,
generally applicable laws may be applied to religious practices even when not
supported by a compelling governmental interest.”27
The issue before the Court was whether RFRA was “a proper exercise of
Congress’ § 5 power ‘to enforce’ by ‘appropriate legislation’ the constitutional
21See Vermont Agency of Natural Resources v. United States ex rel. Stevens, 162 F.3d 195
(2nd Cir. 1998), cert. granted, 67 U.S.L.W. 3717 (U.S. Jun. 24, 1999) (No. 98-1828). This
case was brought under the False Claims Act which imposes liability on a person for filing
a false monetary claim with the United States government. FCA allows an individual to bring
suit under the act in the name of the United States. The United States is notified of the action
and given an opportunity to intervene or to dismiss the suit. The action remains in the name
of the United States, but an individual that is allowed to proceed may recover a portion of the
recovery; the remainder goes to the United States. The lower court held that such suits were
not a violation of the 11th Amendment because the 11th Amendment does not prevent suits
against states by the U.S.
22 U.S. Const. amend. XIV, § 1.
23 U.S. Const. amend. XIV, § 5.
24521 U.S. 507 (1997).
25Id. at 516.
26494 U.S. 872 (1990).
27521 U.S. at 514.

CRS-5
guarantee that no State shall deprive any person of ‘life, liberty, or property, without
due process of law,’ nor deny any person ‘equal protection of the laws.’”28 The Court
looked to the history of Section 5 and found that it granted Congress the power to
enact legislation that would enforce Section 5, but not the power to create new rights
under Section 5.29 RFRA did not apply merely to laws targeting religious
discrimination or bigotry, but to any law that had the effect of burdening the free
exercise of religion. The Court found that the legislative history did not reflect a
recent history of religious persecution or a “widespread pattern of religious
discrimination in this country.”30 Aside from the legislative history, the Court found
that RFRA’s sweeping application was “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.”31 RFRA, according to the Court, was not
remedial legislation to enforce an existing constitutional right, but instead created a
new right and therefore was beyond Congress’ power to enact.32
In Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank,
the Court again addressed the scope of Congress' authority under Section 5 of the
Fourteenth Amendment.33 Reiterating the holding in Boerne, the Court noted that
the term “enforce” used in Section 5 should be taken seriously. Section 5 should not
be used to create a new federal right, but only to enforce a right under the 14th
Amendment. The Court stated, “We thus hold that for Congress to invoke § 5, it
must identify conduct transgressing the Fourteenth Amendment's substantive
provisions, and must tailor its legislative scheme to remedying or preventing such
conduct.”34
To summarize, the Court's recent cases hold that Congress may not authorize an
individual to bring suit against a state in federal or state court to enforce a federal
statute without: (1) the state's consent or (2) express Congressional abrogation of
state sovereign immunity subject to legislation enacted pursuant to an appropriate
exercise of jurisdiction under § 5 of the Fourteenth Amendment. The Court's cases
note that the 11th Amendment does not bar suit against a state by the federal
government. The issue of whether an individual may bring suit against a state in the
name of the federal government will be decided during the Court's current term. The
Court has also held that the 11th Amendment does not bar suits against state officers
for injunctive or declaratory relief or even damages if the damages are sought
individually from the state officer. The Eleventh Amendment does not apply to
28521 U.S. at 517.
29The Court in Boerne stated, “Congress does not enforce a constitutional right by changing
what the right is. It has been given the power ‘to enforce,’ not the power to determine what
constitutes a constitutional violation.” Id. at 519.
30Id. at 531.
31Id. at 532.
32Id. at 532-534.
33527 U.S. ____, No. 98-531 (U.S. June 23, 1999).
34Id.

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municipal corporations or other governmental entities, i.e., a city or county
government.
Kimel v. Florida Board of Regents
In Kimel v. Florida Board of Regents, plaintiffs in two separate ADEA cases
appealed to the U.S. Supreme Court for a review of the 11th Circuit’s holding that the
state was not subject to suit under the ADEA because of sovereign immunity.35 The
Court considered whether: (1) the ADEA contains a clear abrogation of states’
immunity and (2) whether Congress’ extension of the ADEA to states was a proper
exercise of Congress’ power under Section 5 of the 14th Amendment to abrogate
immunity.36 Ultimately, the U.S. Supreme Court held that Congress did give notice
of its intent to abrogate state immunity, but lacked the constitutional authority under
Section 5 of the 14th Amendment to do so.37
According to the Court, the issue boiled down to two questions: “first, whether
Congress unequivocally expressed its intent to abrogate [a state’s sovereign
immunity]; and second, if it did, whether Congress acted pursuant to a valid grant of
constitutional authority.”38 As to the first question, the Court found that Congress’
amendments to the ADEA that expanded the definition of employer to include states
and that incorporated provisions of the Fair Labor Standards Act (FLSA), which
authorized suits in any Federal or State court of competent jurisdiction, “clearly
demonstrates Congress’ intent to subject the States to suit . . . at the hands of
individual employees.”39 The Court rejected the argument that Congress was in any
way unclear about its intention to subject states to suit under the ADEA.
Turning to the second question, the Court reiterated its holding from Seminole
Tribe and later cases, that “Congress lacks power under Article I to abrogate the
35139 F.3d 1426 (11th Cir. 1998), reh’g denied, 157 F.3d 908 (11th Cir. 1998), cert. granted,
67 U.S.L.W. 3464 (U.S. Jan. 26, 1999) (No. 98-796) (No. 98-791). The district court
opinions in two of the cases, Kimel v. Florida Board of Regents and Dickson v. Florida
Department of Corrections, are unreported. The district court opinion in MacPherson v.
University of Montevallo is reported at 938 F. Supp. 785 (N.D. Ala. 1996). The three-judge
panel that heard the appeal for the 11th Circuit issued a split decision. Judge Edmondson,
writing the decision for the court, held that the ADEA expressly abrogated state immunity but
that Congress did not have authority under Section 5 to do so, and therefore there was no
abrogation. This decision was joined by Judge Cox, but Chief Judge Hatchett dissented
finding both a congressional intent to abrogate and congressional authority under section 5.
3667 U.S.L.W. 3464 (U.S. Jan. 26, 1999) (No. 98-791) (No. 98-796).
37No. 98-791, slip op. at 2. Chief Justice Rehnquist and Justices Scalia, Kennedy, and
Thomas joined in parts I, II, and IV of the decision. Part III was joined by Chief Justice
Rehnquist and Justices Stevens, Scalia, Souter, Ginsburg and Breyer. Justice Stevens wrote
separately, dissenting in part and concurring in part, which was joined by Justices Souter,
Ginsburg, and Breyer. Justice Thomas wrote an opinion concurring and dissenting in part
joined by Justice Kennedy.
38No. 98-791, slip op. at 8.
39No. 98-791, slip op. at 9.

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States’ sovereign immunity.”40 The majority opinion states that authority to abrogate
does exist under Section 5 of the Fourteenth Amendment.41 However, this authority
is limited. According to the majority, Congress “has been given the power ‘to
enforce,’ not the power to determine what constitutes a constitutional violation.”42
Noting that it is a difficult line that Congress must follow, the Court “held that
‘[t]here must be a congruence and proportionality between the injury to be prevented
or remedied and the means adopted to that end.’”43
Applying the congruence and proportionality test in this instance, the Court
found that the ADEA was a disproportionate response “to any unconstitutional
conduct that conceivably could be targeted by the Act.”44 The Court noted that in
three previous cases, it had “held that the age classifications at issue did not violate
the Equal Protection Clause.”45 Moreover, the Court stated that age classifications
may be tailored to meet a legitimate state interest, particularly since age, unlike race
or sex, is not a suspect classification.46 It fails to be a suspect classification because
older people “have not been subjected to a ‘history of purposeful unequal treatment’
and old age . . . does not define a discrete and insular minority . . . ”47 Finally, the
majority opinion concluded 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.’”48 The original plaintiffs argued that
the ADEA was enacted to eliminate arbitrary age discrimination which would likely
violate the Equal Protection Clause. The Court disagreed, finding “that the ADEA’s
protection extends beyond the requirements of the Equal Protection Clause.”49
The Court observed that although the behavior targeted by the ADEA is unlikely
to be unconstitutional, the analysis does not end there. Congress may enact
prophylactic legislation. The Court then questioned whether the ADEA is a form of
“enforcement” or an attempt by Congress to redefine the substance of Section 5.
After reviewing the ADEA’s legislative history and finding a dearth of a pattern or
history of age discrimination, the Court concluded that “Congress’ 1974 extension of
the Act to the States was an unwarranted response to a perhaps inconsequential
problem.”50
40No. 98-791, slip op. at 14.
41Id. at 15.
42Id. at 17. (Emphasis in text).
43Id. (quoting City of Boerne v. Flores, 521 U.S. 507, 520 (1998)).
44Id. at 18.
45Id.
46Id. at 19.
47Id. at 19.
48Id. at 22 (quoting City of Boerne v. Flores, 521 U.S. 507, 532)).
49Id. at 24.
50Id. at 25. Justice O’Connor noted, “Congress never identified any pattern of age
(continued...)

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Ultimately, the Court stated, “[We] hold that the ADEA is not a valid exercise
of Congress’ power under § 5 of the Fourteenth Amendment. The ADEA’s purported
abrogation of the States’ sovereign immunity is accordingly invalid.”51 However, the
Court pointed out that state employees are still able to seek recourse under state age
discrimination laws.52
Justice Stevens wrote a separate opinion, dissenting and concurring in part,
joined by Justices Souter, Ginsburg and Breyer. He took issue with the “judge-made
doctrine of sovereign immunity” and argued that if Congress has the authority to
enact legislation that is applicable to the states, it also has the authority to determine
who may bring enforcement proceedings.53
Justice Thomas dissented from the part of the Court’s decision that found clear
congressional intent to abrogate under the ADEA.54 He argued that it is not clear that
Congress understood or was aware that the changes it made to abrogate state
immunity under FLSA would also apply to the ADEA because of the ADEA’s
incorporation of the enforcement provisions of FLSA.55 Justice Thomas concurred
with the remaining parts of the decision that Congress did not have authority under
Section 5 of the 14th Amendment to abrogate state immunity under the ADEA.
50(...continued)
discrimination by the States, much less any discrimination whatsoever that rose to the level
of constitutional violation.” Id.
51Id. at 27.
52Id. at 25.
53No. 98-791, slip op. at 5 (Stevens, J., concurring in part, dissenting in part). Justice Stevens
stated, “There is not a word in the text of the Constitution supporting the Court’s conclusion
that the judge-made doctrine of sovereign immunity limits Congress’ power to authorize
private parties, as well as federal agencies, to enforce federal law against the States.” Id.
54No. 98-791, slip op. at 3 (Thomas, J., concurring in part, dissenting in part ). Justice
Thomas referred to the Court’s decision in Employees of Dept. of Public Health & Welfare
of Mo. v. Department of Public Health & Welfare of Mo., 411 U.S. 279, 285 (1973). He
noted that, “In Employees, we confronted the pre-1974 version of the [FLSA and] . . . held
that this language fell short of a clear statement of Congress’ intent to abrogate.” Id. at 3.
55Justice Thomas wrote:
This sequence of events suggests, in my view, that we should approach with
circumspection any theory of ‘clear statement by incorporation.’ Where Congress
amends an Act whose provisions are incorporated by other Acts, the bill under
consideration does not necessarily mention the incorporating references in those
other Acts, and so fails to inspire confidence that Congress has deliberated on the
consequences of the amendment for the other Acts. That is the case here. The
legislation that amended [the FLSA] . . . did not even acknowledge [the
enforcement provision of the ADEA]. And, given the purpose of the clear
statement rule to ‘assur[e] that the legislature has in fact faced’ the issue of
abrogation, . . . I am unwilling to indulge the fiction that Congress, when it
amended [FLSA], recognized the consequences for a separate Act (the ADEA) that
incorporates the amended provision. Id. at 5.

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Impact of the Kimel Decision
The impact of the Kimel decision is still being debated. While state employees
may continue to bring suit under state law, Kimel does foreclose an avenue of
enforcement that had been available to approximately 5 million employees since 1974.
It also effectively eliminates the ability of state employees to bring suit under other
federal labor laws in which the state has not consented or where Congress does not
have § 5 authority. In a larger sense, Kimel and Alden shift to the federal government
a greater role in ensuring state compliance with federal labor law. The Kimel decision
implies that only suspect classifications such as race or gender would likely meet the
“congruence and proportionality” test. However, that proposition as it applies to
gender has been put into question after the Court requested that lower courts
reevaluate the application of the Equal Pay Act, a federal statute that prohibits
gender-based wage discrimination, to states.56
The Court has ordered two lower courts to reconsider, in light of its decision in
Kimel, their decisions to allow an Equal Pay Act claim to proceed against two state
universities.57 It is not clear if this issue will reach the Court. Also, on January 21,
2000, the Court agreed to hear Dickson v. Florida Department of Corrections to
determine if the 11th Amendment prohibits state employees from bringing suit under the
Americans with Disabilities Act (ADA).58 In Kimel, a three-judge panel of the 11th
Circuit Court of Appeals heard a consolidated appeal of three cases regarding 11th
Amendment immunity. Two of the cases dealt with the ADEA and that issue was
addressed by the U.S. Supreme Court in Kimel. The remaining case, Dickson, dealt
with the ADA. The lower court panel was split with two of the judges finding
abrogation of sovereign immunity under the ADA.
In light of the Court’s recent decisions, state employees are unable to bring suit
under the Fair Labor Standards Act and the Age Discrimination in Employment Act.
However, these statutes may be enforced by administrative action. State employees
may also have recourse under an applicable state law. Whether state employees can
bring suit under the Equal Pay Act or the Americans with Disabilities Act is a question
that the Court is likely to address in the near future
5629 U.S.C.A. § 206(d) (West Supp. 1999).
57Varner v. Illinois State University, 150 F.3d 706 (7th Cir. 1998), cert. granted and judgment
vacated and remanded, 67 U.S.L.W. 3469 (Jan. 18, 2000) (No. 98-1117); Anderson v. State
University of New York at New Paltz, 169 F.3d 117 (2nd Cir. 1999), cert. granted and
judgment remanded, 2000 WL 29247 (Jan. 18, 2000) (No. 98-1845). The Equal Pay Act
prohibits wage discrimination based on sex. 29 U.S.C.A. § 206 (West Supp. 1999). See also
Timmer v. Michigan Department of Commerce, 104 F.3d 833 (6th Cir. 1997)(holding that
Equal Pay Act abrogated state’s immunity pursuant to valid Congressional power);
O’Sullivan v. Minnesota, 191 F.3d 965 (8th Cir. 1999)(holding that Congress properly
abrogated state’s immunity under the Equal Pay Act).
58139 F.3d 1426 (11th Cir. 1998), reh’g denied, 157 F.3d 908 (11th Cir. 1998), cert. granted,
2000 WL 46077 (U.S. Jan. 21, 2000) (No. 98-829). The district court opinion in Dickson v.
Florida Department of Corrections is unreported. For a detailed discussion of the 11th
Amendment and the ADA see CRS Report RS20472, The Americans with Disabilities Act:
Eleventh Amendment Issues, by Nancy Jones (February 16, 2000).

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