Kimel v. State of FL Bd. of Regents

PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_____________________________________
No. 96-2788
_____________________________________
D. C. Docket No. 95-40194-MP
J. DANIEL KIMEL, JR., RALPH C. DOUGHERTY,
BURTON H. ALTMAN, ROBERT W. BEARD, VALDALL K.
BROCK, et al.,
Plaintiffs-Appellees,
DORIS C. BAKER, et al.,
Plaintiffs,
versus
STATE OF FLORIDA BOARD OF REGENTS,
Defendant-Appellant.
_____________________________________
No. 96-3773
_____________________________________
D. C. Docket No. 5:96-CV-207-RH
WELLINGTON N. DICKSON, a.k.a. Duke,
Plaintiff-Appellee,
versus
FLORIDA DEPARTMENT OF CORRECTIONS, Jackson
County,
Defendant-Appellant,
JACKSON CORRECTIONAL INSTITUTION, JIM FOLSOM,
and JAMES EDWARD CHILDS, a.k.a. J. E. CHILDS,
Major,
Defendants.
______________________________________
Appeals from the United States District Court
for the Northern District of Florida
_______________________________________
*********************************************************
_____________________________________
2
No. 96-6947
_____________________________________
D. C. Docket No. CV-94-AR-2962-S
RODERICK MACPHERSON, MARVIN NARZ,
Plaintiffs-Appellants,
versus
UNIVERSITY OF MONTEVALLO,
Defendant-Appellee,
NATIONAL EMPLOYMENT LAWYERS ASSOCIATION,
Amicus,
UNITED STATES OF AMERICA,
Intervenor-Appellant.
______________________________________
Appeal from the United States District Court
for the Northern District of Alabama
_______________________________________
(April 30, 1998)
Before HATCHETT, Chief Judge, EDMONDSON and COX, Circuit Judges.
1
EDMONDSON, Circuit Judge:
1
Judge Edmondson announces the judgment for the Court in this
3
Three cases presenting the same or
similar issues of Eleventh Amendment
immunity were consolidated and are
addressed in this appeal. In all three cases,
the States, or their agencies, submitted
motions to dismiss based on Eleventh
Amendment immunity. The issues in this
appeal are whether Congress abrogated
States’ Eleventh Amendment immunity
case. Judge Cox concurs in the result in Part I of Judge
Edmondson’s opinion but decides the issue on a different basis.
Chief Judge Hatchett dissents in Part I. Chief Judge Hatchett
concurs in the result in Part II of Judge Edmondson’s opinion but
also writes separately on the issue. Judge Cox dissents in Part II of
the opinion.
4
for suits under the Age Discrimination in
Employment Act (“ADEA”) and under the
2
Americans with Disabilities Act (“ADA”).
Two district courts, the Northern
District of Florida, Tallahassee Division, in
State of Florida, Board of Regents v. Kimel
(“Kimel”) and the Northern District of
Florida, Panama City Division, in Florida
Department of Corrections v. Dickson
(“Dickson”), held that Congress effectively
2
Only case number 96-3773, Florida Dep’t of Corrections v.
Dickson, presents the Eleventh Amendment issue for the ADA.
5
abrogated States’ sovereign immunity
with its enactment of the ADEA (and for
Dickson the ADA) and denied the motions to
dismiss. But, the Northern District of
Alabama in MacPherson and Narz v.
University of Montevallo (“MacPherson”)
granted the State’s motion to dismiss on
Eleventh Amendment grounds. We agree
with the Northern District of Alabama
that suits by private parties against
States in federal court for ADEA
6
violations are prohibited by the Eleventh
Amendment.
The cases were appealed for us to decide
whether Congress abrogated sovereign
immunity when it enacted the relevant
3
statutes. Because this appeal presents
only questions of law, not dependent upon
3
Plaintiff Wellington Dickson claims we lacked jurisdiction to
hear the State of Florida’s appeal of the denial of its motion to
dismiss. This appeal is properly before this Court under the
collateral order doctrine. Like qualified immunity, a decision on
this issue after trial would defeat the State’s right to be immune
from trial. The Eleventh Amendment provides the States with
immunity from suit, not just immunity from damages. See
Puerto Rico Aqueduct and Sewer Auth. v. Metcalf & Eddy, Inc.,
113 S.Ct. 684, 688 (1993).
7
factual determinations, the facts of each
Plaintiff’s claim will not be discussed.
Discussion
A district court’s order denying or
granting a motion to dismiss a
complaint against a State based on the
Eleventh Amendment’s grant of
sovereign immunity is reviewed by this
court de novo. See Seminole Tribe of
8
Florida v. Florida, 11 F.3d 1016, 1021 (11th Cir.
1994), aff’d, 116 S.Ct. 1114 (1996).
The Eleventh Amendment states:
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.
U.S. Const. amend. XI. This provision not
only prohibits suits against States in
federal court by citizens of other States,
but also prohibits suits brought against a
9
State in federal court by its own citizens.
4
Hans v. Louisiana, 134 U.S. 1 (1890).
In Seminole Tribe of Florida v. Florida,
116 S.Ct. 1114 (1996), the Supreme Court recently
considered the issue of when Congress can
properly abrogate States’ Eleventh
Amendment immunity. The Court’s
decision in Seminole overruled
Pennsylvania v. Union Gas Co., 109 S.Ct.
2273 (1989), which held that acts taken by
4
The Eleventh Amendment only prohibits suits by private
parties against unconsenting States in federal court. See Maine
v. Thiboutot, 100 S.Ct. 2502, 2507 n.7 (1980) (Eleventh
Amendment principles are not applicable to suits in state
court.).
10
Congress pursuant to the Commerce Clause
could, if sufficiently clear, abrogate
Eleventh Amendment immunity. In
Seminole, the Court specifically held that
Congress had no authority to abrogate
State sovereign immunity under the
Eleventh Amendment when Congress acted
pursuant to the Commerce Clause; the power
to abrogate only exists under Section 5 of
5
the Fourteenth Amendment. In addition,
5
The enforcement provision of the Fourteenth Amendment
provides:
Section 5. The Congress shall have power to enforce,
by appropriate legislation, the provisions of this
article.
U.S. Const. amend. XIV, § 5.
11
the Court set out precisely what Congress
must do to abrogate the States’ immunity.
Two requirements must be satisfied
before Eleventh Amendment immunity
can be successfully abrogated by Congress.
Seminole, 116 S.Ct. at 1123. First, Congress
must have intended to abrogate that
immunity by providing “a clear legislative
statement” of its intent -- “making its
intention unmistakably clear in the
6
language of the statute.” Id. (citing
6
For me, “unmistakably” strongly
intensifies the implications of “clear;” and
I take that message to heart.
12
Blatchford v. Native Village of Noatak and
Circle Village, 111 S.Ct. 2578, 2584 [1991], and
Dellmuth v. Muth, 109 S.Ct. 2397, 2399-2400
[1989]). Second, Congress must have
attempted to abrogate this immunity
under proper constitutional authority. In
other words, Congress must have enacted
the statute at issue using its Fourteenth
Amendment, Section 5, enforcement
7
powers. See Seminole, 116 S.Ct. at 1127-28.
7
The Eleventh Amendment can also be abrogated by a State’s
waiver -- actual consent -- but no one claims that a waiver
occurred in these cases.
13
I. Age Discrimination in Employment
Act of 1967
Although I believe good reason exists to
doubt that the ADEA was (or could have
been properly) enacted pursuant to the
Fourteenth Amendment, I will not decide
8
that question today; questions of
8
This doubt is suggested by a variety of considerations, to
state briefly a few: (1) where the Supreme Court has held that
Congress enacted a statute pursuant to its Commerce Clause
powers, we must be cautious about deciding that Congress
could have acted pursuant to a different power. See League of
United Latin Amer. Citizens, Council No. 4434 v. Clements, 986
F.2d 728, 758-59 (5th Cir. 1993) (“Although there was some
argument that Congress acted pursuant to its enforcement
powers under the Fourteenth Amendment in passing the ADEA,
the [Supreme] Court in Gregory[ v. Ashcroft] ultimately
concluded that Congress had acted only pursuant to its
Commerce Clause powers.”) (emphasis added); (2) where two
statutes are enacted together in the same bill, like the ADEA
14
constitutional power should be decided only
as a last resort. Instead, I focus on the
ADEA’s words and rest my decision on the
lack of unmistakably clear legislative
intent.
In searching the ADEA for an
unequivocal statement of intent to
and the Fair Labor Standards Act (“FLSA”), it seems reasonable
that Congress enacted the bill -- all portions of it -- pursuant to
the same authority. See 120 Cong. Rec. 7337 (1974) (FLSA
enacted only pursuant to Congress’s Commerce Clause power,
especially considering that the FLSA [like the ADEA] initially
only applied to private employers, who are not the proper
subjects of Fourteenth Amendment enforcement); (3) when
addressing a characteristic, such as age, that is not the kind of
immutable characteristic as race, gender, or national origin, it
is questionable that Congress could lawfully be acting to
enforce the Fourteenth Amendment. See Massachusetts Bd. of
Retirement v. Murgia, 96 S.Ct. 2562, 2566 (1976) (Age does not
rise to the level of a suspect or quasi-suspect class: it is a
stage of life through which all persons go.).
15
abrogate, courts look only to the language of
the statute itself. Dellmuth, 109 S.Ct. at 2401(“[E]vidence of congressional intent must
be both unequivocal and textual . . .
[l]egislative history generally will be
irrelevant” because if the intent is clear
in the language of the statute, “recourse to
legislative history will be unnecessary.”)
(emphasis added). A court’s guess about
Congress’s political will and subjective
intentions -- past, present, or future -- is
without consequence; only the statute and
its language are to be considered. As
16
directed by the Supreme Court, I do not go
beyond the text of the ADEA in deciding
whether it contains the requisite,
unmistakably clear statement of intent
to abrogate. Id.This requirement -- that the intent to
abrogate be found in an unmistakably
clear statement in the language of the
statute -- necessitates a high level of
clarity by Congress. But, as the Supreme
Court has observed, such a requirement of
Congress is not too high when considering
the important interests protected by the
17
Eleventh Amendment. The Eleventh
Amendment recognizes that States, as a
matter of constitutional law, are special
entities -- still possessing attributes of
sovereignty. The Amendment strikes a
balance between the federal government
and the States. To alter that balance,
Congress must be unmistakably clear in its
intent. See Dellmuth v. Muth, 109 S.Ct. at
2400.
No unequivocal expression of an
intent to abrogate immunity is
unmistakably clear in the ADEA. No
18
reference to the Eleventh Amendment or
to States’ sovereign immunity is included.
Nor is there, in one place, a plain,
declaratory statement that States can be
sued by individuals in federal court. To me,
an intent on the part of Congress to
abrogate the States’ constitutional right to
immunity is not sufficiently clear to be
effective under Eleventh Amendment
9
jurisprudence.
9
The ADEA presents a different situation from the one in
Seminole, where the Court held that Congress clearly
expressed its intent to abrogate immunity when Congress said,
among other things, that jurisdiction was vested in “[t]he
United States district courts . . . over any cause of action . . .
arising from the failure of a State to enter into negotiations . . .
or to conduct such negotiations in good faith . . . .” Indian
19
In one section, 29 U.S.C. § 630, the ADEA
defines employers to include States. In a
different section, 29 U.S.C. § 626(b), which
never mentions employers much less
mentions States as defendants, the ADEA
Gaming Regulatory Act, 25 U.S.C. § 2710(d)(7)(A)(I) (emphasis
added). This section, along with the remedial scheme available
to a tribe that files suit under section 2710, leaves no doubt “as
to the identity of the defendant in an action under [this
section].” Seminole, 116 S.Ct. at 1124.
Unlike the ADEA, the Indian Gaming Regulatory Act at
issue in Seminole creates a scheme of federal regulation of
Indian-tribe gambling. Other than the suits authorized against
States for their lack of good faith negotiations for Tribal-State
compacts, the only enforcement provision of the Act is a civil
fine that can be imposed by the Commission created by the Act.
Thus, the only suits available to an entity other than the
Commission are available to Indian tribes. And the only entities
that the tribes can sue under the Act are States: no other
means of enforcement are established.
The single-mindedness of the Act adds much clarity to its
words. The ADEA, on the other hand, is more complicated. As
a general proposition, it doubtlessly permits suits against a
wide range of employers (public and private) and for various
remedies (legal and equitable) and in different forums (state
and federal courts). But this fact sheds little light on the narrow
question of suits by individuals against States in federal court.
20
separately provides for enforcement by
means of suits for legal or equitable relief
in courts of competent jurisdiction. This
statutory structure does not provide the
clarity needed to abrogate States’
constitutional right to sovereign
immunity. For abrogation to be
unmistakably clear, it should not first be
necessary to fit together various sections
of the statute to create an expression
from which one might infer an intent to
abrogate. Although we make no definite
rule about it, the need to construe one
21
section with another, by its very nature,
hints that no unmistakable or unequivocal
declaration is present. More important,
when we do construe the various ADEA
sections together, abrogation never
10
becomes “as clear as is the summer’s sun.”
“A general authorization for suit in
federal court is not the kind of unequivocal
statutory language sufficient to abrogate
the Eleventh Amendment.” See Seminole,
116 S.Ct. at 1123 (citing Atascadero State
10
For background, see William Shakespeare, King Henry the
Fifth act 1, sc. 2 (speech of Canterbury outlining Henry’s claim
to the French throne).
22
Hosp. v. Scanlon, 105 S.Ct. 3142, 3149 (1985)).
“[T]hat Congress grants jurisdiction to hear
a claim does not suffice to show Congress
has abrogated all defenses to that claim.”
Blatchford, 111 S.Ct. at 2585 n.4.
Still, Plaintiffs argue, and all three
district courts seemed to agree, that
Congress’s amendments to the ADEA in
1974 -- adding States, their agencies, and
political subdivisions to the definition of
“employer” (along with the original
portions of the ADEA providing that the
statute may be enforced in courts of
23
competent jurisdiction) -- represents the
unmistakably clear legislative statement
required to abrogate the Eleventh
Amendment. This view (which is opposed by
the State in Dickson) seems to clash with
the Supreme Court’s precedents.
In Employees of the Dep’t of Public
Health and Welfare v. Missouri, 93 S.Ct. 1614(1973), the Supreme Court held that the Fair
Labor Standards Act (“FLSA”) did not
provide a sufficiently clear statement of
intent to abrogate the Eleventh
Amendment. As initially enacted, the FLSA
24
(like the ADEA) did not apply at all to
States. In 1966, the FLSA was amended to
include certain State agencies in the
definition of employer. This amendment,
the Court held, did not provide the clear
statement of intent to abrogate
immunity, despite the provisions allowing
suits in courts of “competent jurisdiction”
against employers who violated the FLSA.
Id. at 1617. “The history and tradition of
the Eleventh Amendment indicate that by
reason of that barrier a federal court is
not competent to render judgment
25
against a nonconsenting State.” Id. Like
the ADEA, there was no dispute that the
FLSA applied to the State agencies set out
in the FLSA; the dispute was only about what
kinds of enforcement were available when
dealing with States as defendant-
11
employers.
11
The ADEA’s 29 U.S.C. § 626(b) refers to sections of a
different Act, the FLSA, particularly to some of the FLSA
enforcement provisions at issue in Employees. This statutory
structure is hardly straightforward. In 1974, after Employees,
Congress amended the FLSA. Those amendments changed the
FLSA’s enforcement provision to provide that suits could be
brought against “employers (including a public agency)” in
“any Federal or State court of competent jurisdiction.” 29
U.S.C. § 216. (The FLSA as amended is similar to 29 U.S.C. §
626[c][1] in the ADEA itself.) Still, a federal court lacks
“competent jurisdiction” if the Eleventh Amendment prohibits
the suits against the State. Employees, 93 S.Ct. at 1617. So,
making it specific that suits can be brought in federal court
does not make it more clear that suits against States by private
parties in federal court are in order. Other, private employers
could be the intended defendants in such suits. And equitable
26
In a later decision, Dellmuth v. Muth, the
Supreme Court held that the Education of
the Handicapped Act (EHA) did not abrogate
Eleventh Amendment immunity despite
provisions allowing suit in federal district
court and many provisions referring to
the States as parties in suits of
enforcement. See Dellmuth, 109 S.Ct. at
2400-02. That the pertinent statute (like
the ADEA) never mentioned either “the
Eleventh Amendment or the States’
relief might be available against state officials in federal courts.
See Edelman v. Jordan, 94 S.Ct. 1347, 1356-57 (1974).
27
sovereign immunity” was given weight.
Id. at 2402. Abrogation was not
sufficiently clear. Id.
To include the States as employers under
the ADEA, as in the FLSA, does not show an
intent that the States be sued by private
citizens in federal court -- the kind of suit
prohibited under the Eleventh
12
Amendment. The ADEA is enforceable
against the States, despite sovereign
12
Plaintiffs’ argument in this appeal mistakenly frames this
issue as one of the constitutionality of the relevant statutes.
The statutes’ basic constitutionality is not in jeopardy. This
appeal only addresses whether the ADEA and ADA can be
enforced through suits by private parties in federal court
against offending States.
28
immunity, through forms of relief other
than direct suits by citizens in federal
13
court. Congress may have had these other
forms of enforcement in mind when it
amended the statute to include States as
employers. Thus, the general application of
the law to the States does not make the
requisite clear statement that Congress
also intended the ADEA to abrogate the
Eleventh Amendment specifically.
13
For examples of other methods of ensuring the States’
compliance with federal law, see Seminole, 116 S.Ct. at 1131
n.14.
29
I do not dispute that some provisions
of the ADEA make States look like possible
defendants in suits alleging violations of
the ADEA. I accept that these provisions
could support an “inference that the States
were intended to be subject to damages
actions for violations of the [ADEA].”
Dellmuth, 109 S.Ct. at 2402. But, as the
Supreme Court stressed in Dellmuth, a
permissible inference is not “the
unequivocal declaration” that is required to
30
show Congress’s intent to exercise its
14
powers of abrogation. Id.I conclude that nothing in the ADEA
indicates a truly clear intent by Congress
14
Some circuits have held that Congress did clearly express
its intent to abrogate States’ immunity in the ADEA. See, e.g.,
Hurd v. Pittsburg State Univ., 109 F.3d 1540 (10th Cir. 1997);
Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690 (3d Cir. 1996);
Davidson v. Board of Governors of State Colleges and Univs.,
920 F.2d 441 (7th Cir. 1990); Ramirez v. Puerto Rico Fire Serv.,
715 F.2d 694 (1st Cir. 1983). I respect their views. These courts
determined that the amendments adding States to the definition
of “employer,” read in connection with enforcement provisions
permitting suits against violators of the ADEA, made it
sufficiently clear that Congress intended to abrogate Eleventh
Amendment immunity: Compare 29 U.S.C. § 623 (describing
what conduct is unlawful) with 626 (b), ( c) (permitting civil suits
“in any court of competent jurisdiction” for legal or equitable
relief as may be appropriate to effectuate the purposes of the
Act) and 630 (including States in the definition of “employer”).
Although, to me, these courts are drawing a permissible
inference from the statute, I cannot agree that the ADEA’s
language includes an unequivocal declaration of abrogation of
States’ immunity as required by the Constitution and the
Supreme Court. It is just not “unmistakably clear” to me. See
generally Humenansky v. Board of Regents of the Univ. of
Minnesota, 958 F. Supp. 439 (D. Minn. 1997) (also concluding
the ADEA lacks the necessary “unequivocal declaration” of
intent to abrogate).
31
to abrogate Eleventh Amendment
immunity and, thus, States are entitled to
immunity from suits by private citizens
in federal court under the ADEA.
II. Americans With Disabilities Act
In sharp contrast to the ADEA, the ADA
does include a clear statement of intent to
abrogate Eleventh Amendment immunity:
“A State shall not be immune under the
32
eleventh amendment . . .” 42 U.S.C. §
1512202.
Thus, the only argument that Eleventh
Amendment immunity still exists is that
the ADA was not enacted pursuant to the
Fourteenth Amendment. We are not
persuaded by this argument.
15
I do not say that certain magic words must be used to
abrogate immunity. I accept that Congress could unmistakably
signal abrogation of immunity in a variety of ways, and we write
no general rules today. See 42 U.S.C. § 2000e-5(f)(1) (where
Title VII speaks of suits by aggrieved persons against “a
government, governmental agency, or political subdivision”
while discussing suits in federal district courts) and Fitzpatrick
v. Bitzer, 96 S.Ct. 2666, 2670 (1976) (concluding that Title VII
abrogates Eleventh Amendment immunity). But when
considering abrogation in both the ADEA and the ADA, I cannot
help but see the clarity with which Congress addressed
sovereign immunity in the ADA. Comparing the language of
these two statutes further spotlights the ambiguous nature of
the ADEA’s treatment of Eleventh Amendment immunity.
33
Unlike the ADEA, it is plain that
Congress was invoking its Fourteenth
Amendment enforcement powers when it
enacted the ADA. See 42 U.S.C. § 12101(b) (“It
is the purpose of this chapter . . . (4) to
invoke the sweep of congressional
authority, including the power to enforce
the fourteenth amendment . . . .”). Congress
specifically found that “individuals with
disabilities are a discrete and insular
minority who have been faced with
restrictions and limitations, subjected to
a history of purposeful unequal treatment.”
34
16
42 U.S.C. § 12101(a)(7). We accept Congress’s
analysis of the situation addressed by the
ADA and agree with the courts that have
addressed the issue: the ADA was properly
enacted under Congress’s Fourteenth
Amendment enforcement powers. See, e.g.,
Amos v. Maryland Dep’t of Pub. Safety and
By the way, an express invocation of
16
Fourteenth Amendment powers is not
present in the ADEA. Nor did Congress
make findings in the ADEA that persons
of a particular age constitute a discrete
and insular minority.
35
Correctional Servs., 126 F.3d 589, 603 (4th
17
Cir. 1997).
Conclusion
The Eleventh Amendment is an
important part of the Constitution. It
17
In Kimel, the State presents one
further issue: That should we determine the
ADEA suit cannot be maintained against
the State, we should remand with
instructions to the district court to
dismiss the supplemental state claim under
the Florida Human Rights Act. That is the
proper decision, and that claim is
remanded to the district court with
instructions that it be dismissed. See
Eubanks v. Gerwen, 40 F.3d 1157, 1161-62 (11th
Cir. 1994).
36
stands for the constitutional principle
that State sovereign immunity limits the
federal courts’ jurisdiction under Article
III. As such, Congress must make an
unmistakably clear statement of its
intent before a federal court can accept
that States have been stripped of their
constitutionally granted sovereign
immunity. For me, the ADEA contains no
unequivocally clear statement of such
intent. The ADA does. And the ADA was
enacted under the authority of the
Fourteenth Amendment.
37
For the reasons stated in our combined
opinions, we hold that the ADEA does not
abrogate States’ Eleventh Amendment
immunity but that the ADA does do so.
Therefore, in Kimel, we REVERSE and
REMAND for dismissal. In Dickson, we
AFFIRM in part and REVERSE in part and
REMAND for further proceedings. In
MacPherson, we AFFIRM the district court’s
decision.
HATCHETT, Chief Judge, concurring in judgment in part,
dissenting in part:
I would hold that Congress effectively abrogated the states’
sovereign immunity under the Eleventh Amendment of the United
States Constitution in both the Age Discrimination in Employment
Act (ADEA), 29 U.S.C. §§ 621-634, and the Americans with
Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213. I therefore
respectfully dissent from Part I of the Discussion in Judge
Edmondson’s opinion, holding that because states are entitled to
sovereign immunity under the Eleventh Amendment, private
citizens are precluded from bringing lawsuits against such
entities in federal court under the ADEA.1 I concur, however, in
the result of Part II of Judge Edmondson’s Discussion,
concluding that the states are not entitled to Eleventh
Amendment immunity from federal lawsuits under the ADA. I
disagree with Judge Cox’s analysis in its entirety and feel
compelled to address, in particular, his assertion that the ADEA
and the ADA are not “valid enforcement” legislation pursuant to
1
For the sake of brevity, I will use the term “states” to refer to states and
their agencies and instrumentalities.
39
Congress’s power under Section 5 of the Fourteenth
Amendment.2
Congress may exercise its power to abrogate the states’
Eleventh Amendment immunity if (1) it “has ‘unequivocally
expresse[d] its intent to abrogate the immunity’”; and (2) it “has
acted ‘pursuant to a valid exercise of power.’” Seminole Tribe of
Florida v. Florida, 134 L. Ed. 2d 252, 266 (1996) (quoting Green
v. Mansour, 474 U.S. 64, 68 (1985)) (alteration in original).
Congress must make its intent “unmistakably clear in the
language of the statute.” Seminole Tribe, 134 L. Ed. 2d at 266(quoting Dellmuth v. Muth, 491 U.S. 223, 228 (1989)). If the
court finds that Congress clearly expressed its intent to abrogate
the states’ immunity, the next inquiry is whether Congress
enacted the legislation in question “pursuant to a constitutional
provision granting [it] the power to abrogate[.]” Seminole Tribe,
2
Because Judge Cox provides the determining vote that states are entitled
to sovereign immunity under the ADEA -- albeit for a reason different from that
of Judge Edmondson -- my opinion with respect to the court’s ADEA analysis
is a dissent. With regard to the ADA, however, I merely write separately to
uphold the applicability of that statute to the states, as did Judge Edmondson.
40
134 L. Ed. 2d at 268.3 A statute is “appropriate legislation” to
enforce the Equal Protection Clause of the Fourteenth
Amendment if it “may be regarded as an enactment to enforce
the Equal Protection Clause, [if] it is ‘plainly adapted to that end’
and [if] it is not prohibited by but is consistent with ‘the letter and
spirit of the constitution.’” Clark v. California, 123 F.3d 1267,
1270 (9th Cir.) (quoting Katzenbach v. Morgan, 384 U.S. 641,
651 (1966)) (alterations in original), petition for cert. filed, 66
U.S.L.W. 3308 (U.S. Oct. 20, 1997) (No. 97-686).
I. Congress’s Intent to Abrogate the States’ Immunity
A. The ADEA
The 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 [or her]
compensation, terms, conditions, or privileges of employment,
because of such individual’s age[.]” 29 U.S.C. § 623(a)(1)
3
In Seminole Tribe, the Supreme Court overruled Pennsylvania v. Union
Gas Co., 491 U.S. 1 (1989), and held that Congress has no authority to
abrogate the states’ sovereign immunity when acting pursuant to the
Commerce Clause, but can abrogate their immunity under Section 5 of the
Fourteenth Amendment. 134 L. Ed. 2d at 268, 273.
41
(1994). In 1974, Congress amended the definition of “employer”
to include “a State or political subdivision of a State and any
agency or instrumentality of a State or a political subdivision of
a State,” and deleted text explicitly excluding such entities from
that definition. 29 U.S.C. § 630(b)(2) & note (1994).4 The ADEA
explicitly provides that employers who violate the statute are
subject to liability for legal and equitable relief. See 29 U.S.C. §
626(b) (1994) (“In any action brought to enforce this chapter the
court shall have jurisdiction to grant such legal or equitable relief
as may be appropriate to effectuate the purposes of this chapter
. . . .”); 29 U.S.C. § 626(c)(1) (1994).
I agree with the parties in Kimel -- including the Florida
Board of Regents -- and with virtually every other court that has
addressed the question, including all three district courts in the
underlying cases, that Congress made an “unmistakably clear”
statement of its intent to abrogate the states’ sovereign immunity
4
As a result, “employee” under the ADEA includes those persons who
work for states and their agencies. See 29 U.S.C. § 630(f) (1994) (with some
exceptions, “[t]he term ‘employee’ means an individual employed by any
employer . . . .”).
42
in the ADEA. See Hurd v. Pittsburg State Univ., 109 F.3d 1540,
1544 (10th Cir. 1997); Blanciak v. Allegheny Ludlum Corp., 77
F.3d 690, 695 (3d Cir. 1996); Davidson v. Board of Governors of
State Colleges & Univs. for W. Ill. Univ., 920 F.2d 441, 443 (7th
Cir. 1990). “Unless Congress had said in so many words that it
was abrogating the states’ sovereign immunity in age
discrimination cases -- and that degree of explicitness is not
required -- it could not have made its desire to override the
states’ sovereign immunity clearer.” Davidson, 920 F.2d at 443(internal citations omitted); see also Edmondson, J., at 21 n.15
(“I do not say that certain magic words must be used to abrogate
immunity. I accept that Congress could unmistakably signal
abrogation of immunity in a variety of ways, and we write no
general rules today.”). As the Third Circuit persuasively pointed
out, “[t]he statute simply leaves no room to dispute whether
states and state agencies are included among the class of
potential defendants when sued under the ADEA for their actions
as ‘employers.’” Blanciak, 77 F.3d at 695; see also Seminole
43
Tribe, 134 L. Ed. 2d at 266-67 (relying on the references to the
“State” in the text of the statute in question to conclude that such
references “[made] it indubitable that Congress intended through
the Act to abrogate the States’ sovereign immunity from suit”).5
I take issue with my colleague’s reliance on the facts that
“[n]o reference to the Eleventh Amendment or to States’
sovereign immunity is included [in the ADEA,]” “[n]or is there, in
5
I disagree that Employees of the Dep’t of Public Health & Welfare v.
Department of Public Health & Welfare, 411 U.S. 279 (1973), concluding that
Congress did not clearly express its intent to abrogate the states’ immunity in
enacting the 1966 amendments to the Fair Labor Standards Act (FLSA), calls
into question Congress’s intent to abrogate the states’ immunity under the
ADEA. In 1974, Congress specifically amended the FLSA to address the
concerns of the Employees Court and to authorize lawsuits against the states
in federal court. See Mills v. Maine, 118 F.3d 37, 42 (1st Cir. 1997) (stating that
“we agree with the other courts of appeals that have examined the FLSA’s
provisions and have concluded that the Act contains the necessary clear
statement of congressional intent to abrogate state sovereign immunity”);
Hurd, 109 F.3d at 1544 n.3; Reich v. New York, 3 F.3d 581, 590, 591 (2d Cir.
1993) (stating that “Congress amended [the FLSA] with the intent that states
and their political subdivisions would thereafter be subject to suit in federal
court for violations of the FLSA[,]” and finding that “Congress has made its
intent to abrogate the states’ sovereign immunity abundantly clear in the
language of the FLSA, as amended in 1974 and 1985”), cert. denied, 510 U.S.
1163 (1994), overruled on other grounds, Close v. New York, 125 F.3d 31, 38
(2d Cir. 1997) (“[W]e can no longer justify congressional abrogation under the
Interstate Commerce Clause, and to the extent that Reich permits such
abrogation, we hold Reich is no longer good law.”); Hale v. Arizona, 993 F.2d
1387, 1391 (9th Cir.) (en banc) (stating that Congress clearly intended to
abrogate the states’ sovereign immunity in the 1974 amendments to the FLSA),
cert. denied, 510 U.S. 946 (1993).
44
one place, a plain, declaratory statement that States can be sued
by individuals in federal court.” Edmondson, J., at 12. Although
Judge Edmondson states that we do not require Congress to use
any “magic words” to abrogate effectively the states’ sovereign
immunity, and that Congress may “unmistakably signal
abrogation of immunity in a variety of ways,” I believe that his
opinion, in essence, is requiring exactly that. Edmondson, J., at
21 n.15. If Congress has not sufficiently expressed its intent to
abrogate the states’ immunity through including “States” in the
definition of “employer” in the ADEA, after this decision, I cannot
imagine in what other “variety of ways” Congress can signal the
abrogation of the states’ immunity, other than through the use of
“magic words.” The Court in Seminole Tribe did not require that
Congress use any talismanic language to express its intent to
abrogate, and could easily have done so. As I do not believe
that Seminole Tribe requires Congress to use any particular
words to express effectively its intent to abrogate the states’
immunity, and because I believe that Congress’s intent is clear
45
in the language of the ADEA, I conclude that the first criterion of
Seminole Tribe is satisfied. See EEOC v. Wyoming, 460 U.S.
226, 243 n.18 (1983) (“[T]here is no doubt what the intent of
Congress was: to extend the application of the ADEA to the
States.”); Gregory v. Ashcroft, 501 U.S. 452, 467 (1991) (“[The]
ADEA plainly covers all state employees except those excluded
by one of the exceptions.”); Fitzpatrick v. Bitzer, 427 U.S. 445,
452 (1976) (concluding that Congress’s designation of states as
parties in Title VII was sufficient to abrogate the states’
immunity).
B. The ADA
The ADA presents an easier case under Seminole Tribe’s
“clear statement” standard, as both Judges Edmondson and Cox
agree. See Edmondson, J., at 21 n.15; Cox, J., at 2-3. Within
the statute’s text, Congress explicitly provided:
A State shall not be immune under the eleventh
amendment to the Constitution of the United States
from an action in [a] Federal or State court of
competent jurisdiction for a violation of this chapter. In
any action against a State for a violation of the
requirements of this chapter, remedies (including
46
remedies both at law and in equity) are available for
such a violation to the same extent as such remedies
are available for such a violation in an action against
any public or private entity other than a State.
42 U.S.C. § 12202 (1994). Accordingly, I find that Congress
“unequivocally expressed” its intent to abrogate the states’
sovereign immunity in section 12202 of the ADA. See Autio v.
AFSCME, Local 3139, No. 97-3145 (8th Cir. Apr. 9, 1998);
Coolbaugh v. Louisiana, 136 F.3d 430, 433 (5th Cir. 1998)
(finding Congress’s intent to abrogate the states’ immunity under
the ADA “patently clear”); Clark, 123 F.3d at 1269-70.6
II. Congress’s Power to Abrogate the States’ Immunity
In addition to clearly expressing its intent, Congress also
must have acted pursuant to its authority under Section 5 of the
Fourteenth Amendment to abrogate successfully the states’
Eleventh Amendment immunity. See Seminole Tribe, 134 L. Ed.
2d at 268. Judge Cox asserts that, regardless of whether
6
I must emphasize, however, that I do not conclude, or imply, that
Congress is required to use any “magic words” to express effectively its intent
to abrogate the states’ immunity. I conclude only that Congress’s intent under
the ADA is clear.
47
Congress clearly expressed its intent to abrogate the states’
immunity from lawsuits in federal court under both the ADEA and
the ADA, Congress lacks the constitutional authority to do so
under these statutes, relying on the Supreme Court’s recent
decision in City of Boerne v. Flores, 138 L. Ed. 2d 624 (1997).
In Boerne, the Supreme Court held that Congress exceeded its
Section 5 authority in enacting the Religious Freedom
Restoration Act (RFRA), 42 U.S.C. §§ 2000bb to 2000bb-4,
through which Congress sought to reinstate a previous, more
stringent standard of review for free exercise of religion claims.7
The Court found that Congress was not enforcing rights under
7
In Employment Division, Dep’t of Human Resources v. Smith, 494 U.S. 872,
883-87 (1990), the Supreme Court declined to apply the balancing test for
analyzing free exercise claims set forth in Sherbert v. Verner, 374 U.S. 398(1963), and held that “neutral, generally applicable laws may be applied to
religious practices even when not supported by a compelling governmental
interest.” Boerne, 138 L. Ed. 2d at 635. Congress then enacted the RFRA,
seeking “to restore the compelling interest test as set forth in Sherbert[,] . . .
and to guarantee its application in all cases where free exercise of religion is
substantially burdened . . . .” 42 U.S.C. § 2000bb(b)(1) (1994). Thus, “[the]
RFRA prohibit[ed] ‘[g]overnment’ from ‘substantially burden[ing]’ a person’s
exercise of religion even if the burden result[ed] from a rule of general
applicability unless the government [could] demonstrate the burden ‘(1) [was]
in furtherance of a compelling governmental interest; and (2) [was] the least
restrictive means of furthering that compelling governmental interest.’”
Boerne, 138 L. Ed. 2d at 636 (quoting 42 U.S.C. § 2000bb-1).
48
the Fourteenth Amendment, which it undeniably has the power
to do, but was attempting to create rights that the Constitution did
not guarantee. See Boerne, 138 L. Ed. 2d at 646. In other
words, Congress had impermissibly enacted “substantive”
legislation. Judge Cox states that “Boerne and the Voting Rights
Act cases teach us [that] [o]nly by respecting Supreme Court
interpretations of the Fourteenth Amendment can Congress
avoid impermissibly interpreting the Amendment itself.” Cox, J.,
at 7. I interpret his analysis to limit, in an unallowable manner,
the power of Congress and thus, disagree.
A. The ADEA
Judge Cox asserts that the ADEA was not a proper exercise
of Congress’s Section 5 power under the Boerne analysis for two
main reasons. First, he alleges that the statute confers more
extensive rights to individuals than does the Equal Protection
Clause of the Fourteenth Amendment. In essence, Judge Cox
alleges that the ADEA puts “mandatory retirement ages” and
“mandatory age limits” to a much more rigorous test than the
49
Equal Protection Clause requires. Cox, J., at 11-12. In addition,
Judge Cox asserts that “Congress did not enact the ADEA as a
proportional response to any widespread violation of the elderly’s
constitutional rights[,]” because, among other reasons, the
legislative history accompanying the 1974 amendment to the
ADEA did not mention the Constitution or constitutional
violations. Cox, J., at 8, 13-14.
To the contrary, like many other circuit courts, I conclude
that the ADEA falls squarely within the enforcement power that
Section 5 of the Fourteenth Amendment confers on Congress.
See Hurd, 109 F.3d at 1545-46; Ramirez v. Puerto Rico Fire
Serv., 715 F.2d 694, 699-700 (1st Cir. 1983); EEOC v. Elrod, 674
F.2d 601, 608-09 (7th Cir. 1982); Arritt v. Grisell, 567 F.2d 1267,
1270-71 (4th Cir. 1977). Congress enacted the ADEA to remedy
and prevent what it found to be a pervasive problem of arbitrary
discrimination against older workers. Such protection is at the
core of the Fourteenth Amendment’s guarantee of equal
protection under the law. Even though Congress arguably has
50
gone further in proscribing government employment practices
that discriminate on the basis of age than have the courts in
adjudicating claims under the Fourteenth Amendment, this
merely reflects the differing roles of Congress and the courts.
1. Congress enacted the ADEA to “enforce” rights under the
Equal Protection Clause of the Fourteenth Amendment.
In Boerne, Congress legislated a constitutional standard of
review for the judiciary. Contrary to Judge Cox’s assertions, I do
not find this to be the case under the ADEA. In general, the
Equal Protection Clause proscribes states from treating similarly
situated persons within their jurisdictions differently and assures
that governments will differentiate between their citizens only
upon reasonable grounds that have a relationship to the desired
goals. See, e.g., Romer v. Evans, 134 L. Ed. 2d 855, 865-67
(1996); Nordlinger v. Hahn, 505 U.S. 1, 10 (1992); City of
Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 446 (1985)
(“The State may not rely on a classification whose relationship to
an asserted goal is so attenuated as to render the distinction
arbitrary or irrational.”). Although age is not a “suspect” or quasi-
51
suspect classification deserving of close judicial scrutiny under
the Equal Protection Clause, the Fourteenth Amendment’s equal
protection guarantees are not limited solely to members of a few
protected groups.8 See, e.g., Cleburne, 473 U.S. at 447 (“[T]he
[disabled], like others, have and retain their substantive
constitutional rights in addition to the right to be treated equally
by the law.”). Every person has a right to be free from
government classifications based on arbitrary or irrational criteria,
and Congress’s power is not limited to “the protection of those
classes found by the Court to deserve ‘special protection’ under
the Constitution.’” Clark, 123 F.3d at 1270-71. But cf. Wilson-
Jones v. Caviness, 99 F.3d 203, 210 (6th Cir. 1996) (stating that
the court will not “regard” a legislation that does not affect a
judicially-recognized “specially protected” class, as an enactment
“to enforce the Equal Protection Clause” unless Congress
8
Under the Equal Protection Clause, arbitrary state action can burden the
rights of older individuals on the basis of age if the action passes the rational
basis test, i.e., it is rationally related to a legitimate government interest. See
Gregory, 501 U.S. at 470-71.
52
explicitly stated that it is enforcing that clause), amended on
other grounds, 107 F.3d 358 (1997).
Additionally, Congress has not exceeded its authority to
enforce the Equal Protection Clause simply because the ADEA
may impose liability involving distinctions based on age that a
court would not find to be “irrational” under that clause. It is
undisputed that Congress’s power to enforce the rights to equal
protection of the law under Section 5 is not unlimited. Congress
cannot “decree the substance of the Fourteenth Amendment’s
restrictions on the States[,]” or alter “what the right[s] [are].”
Boerne, 138 L. Ed. 2d at 638. It has long been established,
however, that “[l]egislation which deters and remedies
constitutional violations can fall within the sweep of Congress’
enforcement power even if in the process it prohibits conduct
which is not itself unconstitutional and intrudes into ‘legislative
spheres of autonomy previously reserved to the States.’”
Boerne, 138 L. Ed. 2d at 637 (quoting Fitzpatrick, 427 U.S. at
455) (emphasis added). The Boerne Court cited, as an example,
53
its upholding the suspension of various voting requirements,
such as literacy tests, under Congress’s parallel power to enforce
the Fifteenth Amendment to combat racial discrimination in
voting “despite the facial constitutionality of the tests under
Lassiter v. Northampton County Bd. of Elections, 360 U.S. 45(1959).” Boerne, 138 L. Ed. 2d at 637; see also Scott v. City of
Anniston, 597 F.2d 897, 899, 900 (5th Cir. 1979) (“The fourteenth
amendment empowers Congress to enact appropriate legislation
establishing more exacting requirements than those minimum
safeguards provided in the amendment[,]” as long as Congress
does so “to carry out the purpose of [the] amendment[].”), cert.
denied, 446 U.S. 917 (1980) . Courts must accord Congress
“wide latitude” in determining where to draw the line between
measures that prevent or remedy unconstitutional actions and
those that make substantive changes in the governing law.
Boerne, 138 L. Ed. 2d at 638.
Thus, it is clear that Congress does not merely have to
“rubber stamp” the constitutional violations that the Supreme
54
Court has already found to exist; nor does it have to legislate to
remedy only that conduct that the Court would find
unconstitutional, even though the Court has not yet so ruled.
See Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307,
314 (1976) (stating in dicta that the rational-basis inquiry
“reflect[s] the Court’s awareness that the drawing of lines that
create distinctions is peculiarly a legislative task and an
unavoidable one”).9 Such an interpretation would essentially
render meaningless Congress’s power to enforce the Fourteenth
Amendment, which is separate and distinct from the power of the
judiciary to interpret the Constitution. See Katzenbach, 384 U.S.
at 648-49.
In Katzenbach v. Morgan, the Supreme Court rejected the
state’s argument that section 4(e) of the Voting Rights Act could
not be sustained as appropriate legislation to enforce the Equal
Protection Clause unless the courts decided that the clause
9
At issue in Murgia was the constitutionality under the Equal Protection
Clause of a state statute mandating a retirement age for state police officers.
See 427 U.S. at 308.
55
forbade that section’s English literacy requirement. 384 U.S. at
648-50. The Court stated:
A construction of § 5 that would require a judicial
determination that the enforcement of the state law
precluded by Congress violated the [Fourteenth]
Amendment, as a condition of sustaining the
congressional enactment, would depreciate both
congressional resourcefulness and congressional
responsibility for implementing the Amendment. It
would confine the legislative power in this context to
the insignificant role of abrogating only those state
laws that the judicial branch was prepared to adjudge
unconstitutional, or of merely informing the judgment of
the judiciary by particularizing the ‘majestic
generalities’ of § 1 of the Amendment.
Katzenbach, 384 U.S. at 648-49 (footnote omitted). I decline to
read such a limitation of Congress’s power into the Boerne
decision, and find any assertion that the ADEA may not reach
practices that are not themselves unconstitutional simply to be
wrong.
2. The ADEA is an appropriate, proportional remedial
measure to address age discrimination.
In order for the courts to consider legislation to be
“remedial,” and not substantive, in nature, “a congruence and
proportionality between the injury to be prevented or remedied
56
and the means adopted to that end” must exist. Boerne, 138 L.
Ed. 2d at 638. After reviewing the text and legislative history of
the ADEA and its amendments, I conclude that Congress, in
addressing arbitrary age discrimination in employment, satisfied
this requirement. See generally Wyoming, 460 U.S. at 229-33(discussing the ADEA’s legislative history); Elrod, 674 F. 2d at
604-07 (same).
The preamble to the ADEA provides Congress’s findings
regarding, among other things, “arbitrary age limits regardless of
potential for job performance [that] has become a common
practice,” and “arbitrary discrimination in employment because
of age,” and states that one of the Act’s purposes is to prohibit
such discrimination. 29 U.S.C. § 621 (1994). In the 1950s,
Congress began its endeavors to prohibit arbitrary age
discrimination. See Wyoming, 460 U.S. at 229. During floor
debates concerning the enactment of Title VII of the Civil Rights
Act of 1964, amendments to include age along with Title VII’s
protected classes were rejected “in part on the basis that
57
Congress did not yet have enough information to make a
considered judgment about the nature of age discrimination[.]”
Wyoming, 460 U.S. at 229 (citing 110 Cong. Rec. 2596-99, 9911-
13, 13490-92 (1964)). Congress thus directed the Secretary of
Labor (Secretary) to conduct a “full and complete” study on age
discrimination in employment. Wyoming, 460 U.S. at 230. The
Secretary issued the report about a year later, finding, among
other things, that (1) employment age discrimination was
generally based on unsupported stereotypes and was often
defended on pretextual grounds; and (2) the empirical evidence
showed that arbitrary age limits were unfounded overall, as older
workers, on average, performed as well as younger workers.
Wyoming, 460 U.S. at 230-31. Thereafter, committees in the
Senate and the House of Representatives conducted extensive
hearings on proposed legislation prohibiting such discrimination,
and the Secretary’s findings “were confirmed throughout the
extensive factfinding undertaken by the Executive Branch and
Congress.” Wyoming, 460 U.S. at 230-31.
58
In March 1972, around the same time that Congress
considered and passed amendments under Section 5 extending
Title VII’s application to state and local government employees,
Senator Bentsen first introduced legislation to extend the ADEA
to government employees. Elrod, 674 F. 2d at 604 (citing 118
Cong. Rec. 7745 (1972), and Equal Employment Opportunity Act
of 1972, Pub. L. No. 92-261, 86 Stat. 103). After Senator
Bentsen again presented the proposed amendment in May 1972,
arguing that Title VII’s underlying principles were “directly
applicable” to the ADEA, the Senate voted unanimously in favor
of the ADEA amendment. Elrod, 674 F.2d at 604-05 (citing 118
Cong. Rec. 15894, 15895 (1972)). The amendment, however,
initially failed to pass House-Senate conference committees.
Elrod, 674 F. 2d at 605. Although little legislative history exists
concerning the 1974 amendment to the ADEA, and Congress
made no mention of a specific constitutional provision, both the
House and the Senate cited President Nixon’s remarks in 1972
to indicate the congressional purpose of the amendment:
59
Discrimination based on age -- what some people call
“age-ism” -- can be as great an evil in our society as
discrimination based on race or religion or any other
characteristic which ignores a person’s unique status
as an individual and treats him or her as a member of
some arbitrarily-defined group. Especially in the
employment field, discrimination based on age is cruel
and self-defeating; it destroys the spirit of those who
want to work and it denies the Nation[] the contribution
they could make if they were working.
Elrod, 674 F. 2d at 605 (quoting S. Rep. No. 93-690, 93d Cong.,
2d Sess. 55 (1974), and H.R. Rep. No. 93-913, 93d Cong., 2d
Sess., reprinted in [1974] U.S.C.C.A.N. 2811, 2849).10 In
addition, Senator Bentsen commented that “[t]he passage of [the
10
The amendments to the FLSA that, among other things, extended that
statute to federal, state and local government employees -- and with which
Congress passed the 1974 ADEA amendment -- overshadowed the ADEA. The
House and Senate considered the ADEA amendment to be “a logical extension
of the Committee’s decision to extend FLSA coverage to Federal, State, and
local government employees.” Elrod, 674 F.2d at 605 (internal quotation marks
omitted). Even in light of this and the Supreme Court’s concluding that
Congress passed the ADEA pursuant to its power under the Commerce
Clause, my determination that Congress also was exercising its power under
Section 5 of the Fourteenth Amendment in enacting the ADEA is not
precluded. See Wyoming, 460 U.S. at 243 (“The extension of the ADEA to
cover state and local governments, both on its face and as applied in this case,
was a valid exercise of Congress’ powers under the Commerce Clause. We
need not decide whether it could also be upheld as an exercise of Congress’
powers under § 5 of the Fourteenth Amendment.”) (emphasis added); Hurd,
109 F.3d at 1546 (concluding, after Wyoming, that “Congress acted pursuant
to its powers under the Fourteenth Amendment when it applied the ADEA to
the states”); Ramirez, 715 F.2d at 700 (holding post-Wyoming that Congress
adopted the 1974 ADEA amendment pursuant to its Section 5 power).
60
ADEA amendment] insures that Government employees will be
subject to the same protections against arbitrary employment
[discrimination] based on age as are employees in the private
sector.” Elrod, 674 F. 2d at 605 (quoting 120 Cong. Rec. 8768
(1974)).11
In light of the above, I conclude that the ADEA qualifies as
a valid enforcement provision under Congress’s Section 5 power.
The text and history of the ADEA demonstrate a congressional
focus, including extensive factfinding on arbitrary age
discrimination, and its resulting harm, in the employment
practices of private and public employers -- discrimination that
had become a “common practice” and was often unrelated to
legitimate employment goals. See 29 U.S.C. § 621 (1994). “[I]t
is clear that the purpose of the [1974 amendment to the ADEA]
11
In addition, included in the legislative history of the 1978 ADEA
amendments is a statement from Representative Paul Findley further
supporting the view that Congress’s legislation in the ADEA was part of its
general policy to ensure equal employment opportunities. Representative
Findley stated that “depriving older and still capable Americans of jobs [does
not] make any more sense than discriminating in employment against blacks,
women, or religious or ethnic minorities.” Elrod, 674 F.2d at 606 (quoting H.R.
Rep. No. 95-527, Part I, 95th Cong., 1st Sess., reprinted in [1978] 753 Gov’t
Empl. Rel. Rep. (BNA) 101, 103).
61
was to prohibit arbitrary, discriminatory government conduct that
is the very essence of the guarantee of ‘equal protection of the
laws’ of the Fourteenth Amendment.” Elrod, 674 F.2d at 604;
see also Ramirez, 715 F.2d at 699 (stating that Congress
extended ADEA coverage “to shield public employees from the
invidious effects of age-based discrimination. The 1974
amendment, like the ADEA itself, ‘is aimed at irrational,
unjustified employment decisions based upon assumptions about
the relationship between age and ability which classify older
workers as incapable of effective job performance.’”) (quoting
Elrod, 674 F.2d at 605).12
B. The ADA
12
The fact that employers can defend their age-based classifications on the
grounds that such classifications are related to a “bona fide occupational
qualification reasonably necessary to the normal operation of the particular
business” or are “based on reasonable factors other than age,” supports the
proposition that the ADEA only targets arbitrary age discrimination, rather
than every employment decision that is based on or related to age. 29 U.S.C.
§ 623(f)(1) (1994). Even age-based employment distinctions under disparate
impact claims generally do not violate the ADEA if the distinctions serve the
“legitimate employment goals of the employer.” MacPherson v. University of
Montevallo, 922 F.2d 766, 771 (11th Cir. 1991) (quoting Wards Cove Packing
Co. v. Atonio, 490 U.S. 642, 659 (1989)).
62
With respect to the ADA, Judge Cox states that the statute
is not valid enforcement legislation for the same reasons that he
rejected the ADEA. First, he asserts that because the disabled
are not a suspect or quasi-suspect class, and thus enjoy no
special rights under the Equal Protection Clause, the ADA
provides them with greater protection than does the Equal
Protection Clause. His second reason is that the ADA “was
unaccompanied by any finding that widespread violation of the
disabled’s constitutional rights required the creation of
prophylactic remedies[,]” and states that “[a]ltruistic and
economic concerns motivated [the ADA] -- not defense of the
Constitution.” Cox, J., at 16-17. For reasons similar to my
analysis of the ADEA, I disagree.
As an initial matter, I acknowledge that, unlike in the ADEA,
Congress explicitly invoked its enforcement power under the
Fourteenth Amendment in the ADA. See 42 U.S.C. §
12101(b)(4) (1994) (“It is the purpose of [the ADA] . . . to invoke
the sweep of congressional authority, including the power to
63
enforce the fourteenth amendment and to regulate commerce, in
order to address the major areas of discrimination faced day-to-
day by people with disabilities.”). I emphasize, however, that,
similar to Congress’s expression of its intent, Congress is not
required to use any magic words to invoke its authority to enforce
the Fourteenth Amendment under Section 5 before abrogating
the states’ immunity. See supra pp. 5-6; see also Clark, 123
F.3d at 1271 (“Although ‘the constitutionality of action taken by
Congress does not depend on recitals of power which it
undertakes to exercise,’ we give great deference to
congressional statements.”) (quoting Woods v. Cloyd W. Miller
Co., 333 U.S. 138, 144 (1948)). In EEOC v. Wyoming, the
Supreme Court rejected that very suggestion, and stated:
It is in the nature of our review of congressional
legislation defended on the basis of Congress’ powers
under § 5 of the Fourteenth Amendment that we be
able to discern some legislative purpose or factual
predicate that supports the exercise of that power.
That does not mean, however, that Congress need
anywhere recite the words “section 5” or “Fourteenth
Amendment” or “equal protection,” see, e.g., Fullilove
v. Klutznick, 448 U.S. 448, 476-78 (1980) (Burger,
C.J.), for “[t]he . . . constitutionality of action taken by
64
Congress does not depend on recitals of the power
which it undertakes to exercise.” Wood v. Cloyd W.
Miller Co., 333 U.S. 138, 144 (1948).
460 U.S. at 243 n.18. The question, therefore, is not whether
Congress explicitly relied on the Fourteenth Amendment when
it enacted the ADA, but whether the statute is within Congress’s
authority under that amendment. See Ramirez, 715 F.2d at 698(“The omission of any ritualistic incantation of powers by the
Congress is not determinative, for there is no requirement that
the statute incorporate buzz words . . .”); Elrod, 674 F.2d at 608(“[T]he test of whether legislation is enacted pursuant to § 5 of
the Fourteenth Amendment requires no talismanic intoning of the
amendment. Rather, the inquiry is whether the objectives of the
legislation are within Congress’ power under the amendment.”)
(internal citation and footnote omitted). That being said, I now
turn to the substantive analysis of the ADA.
First, I do not agree with Judge Cox’s equal protection
argument concerning the ADA for the same reasons I declined
to accept this argument with respect to the ADEA. Although, like
65
older individuals, the disabled are not a suspect or quasi-suspect
class -- and therefore are not entitled to the higher level of
judicial scrutiny under the Equal Protection Clause that courts
accord state action affecting such classes -- the disabled are still
entitled to the equal protection of the law against arbitrary
discrimination, as is every person. See Cleburne, 437 U.S. at
446 (“Our refusal to recognize the [disabled] as a quasi-suspect
class does not leave them entirely unprotected from invidious
discrimination.”). Like the Ninth Circuit, I find no authority for the
idea that “the Court’s choice of a level of scrutiny for purposes of
judicial review should be the boundary of the legislative power
under the Fourteenth Amendment[.]” Clark, 123 F.3d at 1271.
I therefore conclude -- especially in light of the congressional
history of the ADA as discussed below -- that Congress did not
exceed its authority in enacting that statute simply because the
ADA may impose liability in situations that the courts would not
find to violate judicial standards under the Equal Protection
Clause. I consider the ADA to be legislation that falls within the
66
sweep of Congress’ enforcement power to “prohibit[] conduct
which is not itself unconstitutional.” Boerne, 138 L. Ed. 2d at
637.
Additionally, I disagree with the assertion that Congress was
not concerned with constitutional violations when it enacted the
ADA, and thus that the statute is not valid enforcement
legislation under its Section 5 power. The ADA is “appropriate
legislation” to enforce the Equal Protection Clause, as it may be
regarded as an enactment to enforce that clause, is plainly
adapted to that end and “is not prohibited by but is consistent
with the letter and spirit of the [C]onstitution.” Clark, 123 F.3d at
1270 (internal quotation marks omitted); see also Autio v.
AFSCME, Local 3139, No. 97-3145 (8th Cir. Apr. 9, 1998)
(concluding that Congress validly enacted the ADA to enforce the
Equal Protection Clause through the exercise of its Section 5
power); Coolbaugh, 136 F.3d at 438 (“[T]he ADA represents
Congress’ considered efforts to remedy and prevent what it
67
perceived as serious, widespread discrimination against the
disabled.”).
Congress considered an abundance of evidence and made
extensive findings in the ADA concerning the extent of the
discrimination against, and resulting harm to, the disabled to
support the statute’s enactment. See Coolbaugh, 136 F.3d at
436-37 (stating that both the House and the Senate cited seven
substantive studies or reports and “a wealth of testimonial and
anecdotal evidence from a spectrum of parties to support the
finding of serious and pervasive discrimination”). In particular, it
found that:
(1) some 43,000,000 Americans have one or more
physical or mental disabilities, and this number is
increasing as the population as a whole is growing
older;
(2) historically, society has tended to isolate and
segregate individuals with disabilities, and, despite
some improvements, such forms of discrimination
against individuals with disabilities continue to be a
serious and pervasive social problem;
(3) discrimination against individuals with disabilities
persists in such critical areas as employment, housing,
public accommodations, education, transportation,
68
communication, recreation, institutionalization, health
services, voting, and access to public services;
(4) unlike individuals who have experienced
discrimination on the basis of race, color, sex, national
origin, religion, or age, individuals who have
experienced discrimination on the basis of disability
have often had no legal recourse to redress such
discrimination;
(5) individuals with disabilities continually encounter
various forms of discrimination, including outright
intentional exclusion, the discriminatory effects of
architectural, transportation, and communication
barriers, overprotective rules and policies, failure to
make modifications to existing facilities and practices,
exclusionary qualification standards and criteria,
segregation, and relegation to lesser services,
programs, activities, benefits, jobs, or other
opportunities; [and]
(6) census data, national polls, and other studies have
documented that people with disabilities, as a group,
occupy an inferior status in our society, and are
severely disadvantaged socially, vocationally,
economically, and educationally[.]
42 U.S.C. § 12101(a) (1994); Coolbaugh, 136 F.3d at 435.
Congress also observed that:
(7) individuals with disabilities are a discrete and
insular minority who have been faced with restrictions
and limitations, subjected to a history of purposeful
unequal treatment, and relegated to a position of
political powerlessness in our society, based on
69
characteristics that are beyond the control of such
individuals and resulting from stereotypic assumptions
not truly indicative of the individual ability of such
individuals to participate in, and contribute to, society;
(8) the Nation’s proper goals regarding individuals with
disabilities are to assure equality of opportunity, full
participation, independent living, and economic
self-sufficiency for such individuals; and
(9) the continuing existence of unfair and unnecessary
discrimination and prejudice denies people with
disabilities the opportunity to compete on an equal
basis and to pursue those opportunities for which our
free society is justifiably famous, and costs the United
States billions of dollars in unnecessary expenses
resulting from dependency and nonproductivity.
42 U.S.C. § 12101(a) (1994); Coolbaugh, 136 F.3d at 435 n.3.13
As the Supreme Court has stated, “It is for Congress in the first
instance to ‘determin[e] whether and what legislation is needed
to secure the guarantees of the Fourteenth Amendment,’ and its
13
Congress’s detailed findings in the ADA are one ground on which to
distinguish the underlying Dickson case from Boerne, in which the Court
noted that Congress made no findings concerning widespread
unconstitutional discrimination against religious persons to support the RFRA.
See Boerne, 138 L. Ed. 2d at 645-46; see also Coolbaugh, 136 F.3d at 438. The
Court, however, went on to state that “[j]udicial deference, in most cases, is
based not on the state of the legislative record Congress compiles but ‘on due
regard for the decision of the body constitutionally appointed to decide.’”
Boerne, 138 L. Ed. 2d at 646 (quoting Oregon v. Mitchell, 400 U.S. 112, 207
(1970) (Harlan, J.)).
70
conclusions are entitled to much deference.” Boerne, 138 L. Ed.
2d at 649 (quoting Katzenbach, 384 U.S. at 651) (alteration in
original); Coolbaugh, 136 F.3d at 436 (“Deference to the
judgment of Congress is particularly appropriate in this case,
because in Cleburne, the Court identified Congress as the ideal
governmental branch to make findings and decisions regarding
the legal treatment of the disabled.”) (citing 473 U.S. at 442-43);
Cleburne, 473 U.S. at 442-43 (“How this large and diversified
group is to be treated under the law is a difficult and often a
technical matter, very much a task for legislators guided by
qualified professionals and not by the perhaps ill-informed
opinions of the judiciary.”). In light of these explicit congressional
findings, I find it abundantly clear that Congress was concerned
about the “defense of the Constitution” in enacting the ADA.
Overall, viewing the remedial measures in light of the evils
presented, both the ADEA and the ADA were valid enactments
of Congress to redress discrimination pursuant to its enforcement
power under Section 5 of the Fourteenth Amendment.
71
Additionally, because the dangers that the Court found inherent
in the RFRA are not present in the ADEA and the ADA, I find
Boerne distinguishable. Boerne, 138 L. Ed. 2d at 647 (stating
that “[t]he reach and scope of [the] RFRA distinguish it from other
measures passed under Congress’ enforcement power . . . .”).
First, the ADEA and the ADA did not pose the same threat as the
RFRA to the separation of powers principles, because “Congress
included no language attempting to upset the balance of powers
and usurp the Court’s function of establishing a standard of
review by establishing a standard different from the one
previously established by the Supreme Court.” Coolbaugh, 136
F.3d at 438.14 Second, unlike the ADEA and the ADA, the RFRA
“prohibit[ed] official actions of almost every description and
regardless of subject matter.” Boerne, 138 L. Ed. 2d at 646.
Neither the ADEA nor the ADA “is so out of proportion to a
supposed remedial or preventive object that it cannot be
understood as responsive to, or designed to prevent,
14
Although the Coolbaugh court was specifically referring to the ADA, I find
the same to be true of the ADEA.
72
unconstitutional behavior.” Boerne, 138 L. Ed. 2d at 646; see
also Coolbaugh, 136 F.3d at 437 (“Congress’ scheme in the ADA
to provide a remedy to the disabled who suffer discrimination and
to prevent such discrimination is not so draconian or overly
sweeping to be considered disproportionate to the serious threat
of discrimination Congress perceived.”); Clark, 123 F.2d at 1270.
Finally, the standard of review set forth in the RFRA was “the
most demanding test known to constitutional law[,]” and imposed
an additional requirement on state action that the previous
judicial standard that Congress attempted to reinstate, i.e., that
the state action be the least restrictive means of fulfilling the
state’s interest, had not imposed. See Boerne, 138 L. Ed. 2d at
648. The same simply cannot be said for analysis of claims
under the ADEA and ADA.
In general,
[t]he extension of the ADEA [and the ADA] to the
states insures uniformity and greater compliance with
[those statutes]. It also eliminates the anomaly that
government is not bound by public policy. As Justice
Brennan remarked in a related context: “How ‘uniquely
amiss’ it would be, therefore, if the government itself --
73
‘the social organ to which all in our society look for the
promotion of liberty, justice, fair and equal treatment,
and the setting of worthy norms and goals for social
conduct’ -- were permitted to disavow liability for the
injury it has begotten.”
Elrod, 674 F.2d at 612 (quoting Owen v. City of Independence,
445 U.S. 622, 651 (1980)).
III. CONCLUSION
For the foregoing reasons, I would hold that Congress
effectively abrogated the states’ sovereign immunity in enacting
the ADEA as well as the ADA. Therefore, I would affirm the
district courts’ decisions in Kimel and Dickson, and would
reverse the district court’s decision in MacPherson. Accordingly,
I concur only in the judgment of Part II of Judge Edmondson’s
opinion and otherwise respectfully dissent.
74
COX, Circuit Judge, concurring in part and dissenting in part:
Congress lacks the constitutional authority to abrogate the
states’ Eleventh Amendment immunity to suit in federal court on
claims under either the Age Discrimination in Employment Act or
the Americans with Disabilities Act. For that reason, I concur in
Judge Edmondson’s conclusion that the states are immune to
ADEA suits. I respectfully dissent, however, from the holding that
the states do not enjoy the same immunity from ADA suits.
I. Background
Each of the plaintiffs in these three consolidated appeals
sued a state instrumentality, asserting claims under the ADEA or
ADA. In each case, the state raised a defense of Eleventh
Amendment immunity to suit on such claims. In MacPherson v.
University of Montevallo, the district court granted the University’s
motion to dismiss, concluding that Congress has not, by enacting
the ADEA, abrogated the states’ Eleventh Amendment immunity.
The district court hearing Kimel v. Florida Board of Regents, on the
other hand, denied a similar motion by the Florida Board of
75
Regents. And the Florida Department of Corrections likewise
unsuccessfully sought dismissal of ADA and ADEA claims
against it in Dickson v. Florida Department of Corrections.
McPherson and the state entities in Dickson and Kimel have
appealed the respective rulings. The appeals present two related
issues: has Congress abrogated the states’ Eleventh Amendment
immunity to suits under (1) the ADEA or (2) the ADA? This
court’s review of such issues of law is de novo. See Seminole
Tribe v. Florida, 11 F.3d 1016, 1021 (11th Cir. 1994), aff’d, 116 S.
Ct. 1114 (1996).
II. Discussion
A. Abrogation
The judicial power of the United States does not extend to
any suit in law or equity commenced or prosecuted against one
of the United States by citizens of that or another state. See U.S.
Const. amend. XI; Hans v. Louisiana, 134 U.S. 1, 14-15, 10 S. Ct.
504, 507 (1890). Congress may abrogate the states’ immunity if
first it “unequivocally expresse[s] its intent to abrogate the
76
immunity,” and second it acts “pursuant to a valid exercise of
power.” See Seminole Tribe v. Florida, 116 S. Ct. 1114, 1123
(1996) (quoting Green v. Mansour, 474 U.S. 64, 68, 106 S. Ct.
423, 426 (1985)).
Congress has provided a clear statement of intent to
abrogate in the ADA. The Act provides that “[a] State shall not be
immune under the eleventh amendment . . . .” 42 U.S.C. §
12202. As Judge Edmondson points out, the ADEA presents a
harder question. On one hand, Congress identified state
employees as potential plaintiffs and the states as potential
defendants. On the other hand, Congress never uses the words
“Eleventh Amendment” or “immunity.” See [Judge Edmondson’s
Opinion at ___-___]. Notwithstanding the omission of these
words, the explicit designation of states as potential defendants
has led four circuit courts to conclude that Congress did clearly
intend to abrogate the states’ immunity to ADEA suits. Hurd v.
Pittsburg State Univ., 109 F.3d 1540, 1544 (10th Cir. 1997);
Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 695 (3d Cir.
77
1996) (dictum); Davidson v. Board of Governors of State Colleges &
Univs., 920 F.2d 441, 443 (7th Cir. 1990); Ramirez v. Puerto Rico
Fire Serv., 715 F.2d 694, 698 (1st Cir. 1983). The Supreme Court
has agreed with this reasoning in other contexts. See Seminole
Tribe, 116 S. Ct. at 1124 (Indian Gaming Act’s designation of
states as parties sufficient); Dellmuth v. Muth, 491 U.S. 223, 233,
109 S. Ct. 2397, 2403 (1989) (Scalia, J., concurring) (“I join the
opinion of [four other Justices of] the Court, with the
understanding that its reasoning does not preclude congressional
elimination of sovereign immunity in statutory text that clearly
subjects States to suit for monetary damages, though without
explicit reference to state sovereign immunity or the Eleventh
Amendment.”); Fitzpatrick v. Bitzer, 427 U.S. 445, 452, 96 S. Ct.
2666, 2670 (1976) (Title VII’s designation of states as parties
enough).
Fortunately, the thorny issue of Congress’s intent need not
be resolved here. Whether or not Congress clearly expressed its
intent, it lacks the power to abrogate the states’ immunity to suit
78
in federal court in actions under the ADEA or the ADA. The
Supreme Court has identified only one constitutional grant of
power, § 5 of the Fourteenth Amendment, under which Congress
may defeat the states’ immunity. See Seminole Tribe, 116 S. Ct.
at 1125-28. The Court has recently revisited the limits on that
power.
B. Power to Abrogate: City of Boerne v. Flores
In City of Boerne v. Flores, 117 S. Ct. 2157 (1997), the Court
struck down the Religious Freedom Restoration Act of 1993
(RFRA), 42 U.S.C. § 2000bb to 2000bb-4. The RFRA prohibited
all governmental entities from “substantially burdening” the
exercise of religion unless they had a compelling interest for
doing so and had employed the “least restrictive means” for
furthering that interest. Id. § 2000bb-1(a), (b). With the RFRA’s
stringent rule, Congress sought to resurrect the First and
Fourteenth Amendment rights that Congress believed the
Supreme Court had extinguished in Employment Division v. Smith,
494 U.S. 872, 110 S. Ct. 1595 (1990). A Roman Catholic church
79
in Boerne, Texas, invoked the Act when the town denied the
church a permit to add additional worship space. Boerne, 117 S.
Ct. at 2160. The district court held that the RFRA was beyond
Congress's Fourteenth Amendment powers, and the Supreme
Court agreed.
The Court rested this conclusion on a basic principle: The
Court is the unique, ultimate authority on the scope of Fourteenth
Amendment rights. See id. at 2166. Thus, Congress may not
define or declare these rights. See id. Rather, Congress may
only enforce the Fourteenth Amendment rights the Supreme
Court has recognized. See id. at 2164. Enforcement can include
creating some rights beyond those clearly guaranteed by the
Constitution. See id. at 2163. But, the Court concluded, such
extensions of rights must be proportional to an unconstitutional
injury that Congress is seeking to remedy. See id. at 2164.
The RFRA was not such a proportional response to any
injury to constitutional rights. The Court identified two
circumstances that showed the RFRA to be “substantive”
80
legislation, as the Court called it, rather than enforcement of
Fourteenth Amendment guarantees. First, Congress enacted the
RFRA without findings (or even hearings) on the existence of
widespread violations of any constitutional right that the Supreme
Court has recognized. Id. at 2169. Second, rather than simply
remedying any constitutional violations, the RFRA created rights
that far exceeded any the Supreme Court has read the First
Amendment to provide. See id. at 2170. Under Smith, generally
applicable statutes that incidentally burden religion are
permissible, see 494 U.S. at 878-79, 110 S. Ct. at 1600; the
RFRA could not be enforcing any First and Fourteenth
Amendment right to be free from incidental burdens on religious
practice. See Boerne, 117 S. Ct. at 2171. Therefore, Congress
did not have power under the Fourteenth Amendment to enact
the statute.
Boerne thus sets the RFRA outside § 5’s boundary. Two
earlier cases, both concerning the Voting Rights Act of 1965,
exemplify proper exercise of Congress’s § 5 power. The first
81
case is South Carolina v. Katzenbach, 383 U.S. 301, 86 S. Ct. 803(1966), which rejected a broad attack on most of the
geographically restricted provisions of the Voting Rights Act. The
second is Katzenbach v. Morgan, 384 U.S. 641, 86 S. Ct. 1717(1966), which upheld a provision of the Act that invalidated New
York’s English-literacy voter-qualification rule. Of the two cases,
Morgan appears to attribute the broadest powers to Congress,
arguably recognizing a congressional power not only to effectuate
Supreme Court-identified rights but also to find Fourteenth
Amendment rights not yet identified by the Supreme Court. See
Morgan, 384 U.S. at 650-51, 86 S. Ct. at 1723-24.
The Boerne Court dismissed the language in Morgan that
suggests that Congress has broad powers both to interpret the
Fourteenth Amendment and effectuate Fourteenth Amendment
rights, Boerne, 117 S. Ct. at 2168, but the Court reaffirmed its
holdings in these Voting Rights Act cases. Id. at 2166-68. The
differences between the circumstances underlying the Voting
Rights Act and those leading to the RFRA are, after all, striking.
82
Before passing the Voting Rights Act, Congress thoroughly
documented a history of obvious Fifteenth Amendment violations,
and the legislative history indicates that the Act’s primary purpose
was to vindicate the Fifteenth Amendment rights that Southern
voting laws and practices were defeating. Morgan, 384 U.S. at
648, 86 S. Ct. at 1722; South Carolina, 383 U.S. at 313, 328, 86
S. Ct. at 811, 818-19. Congress took measures tailored to
remedy the constitutional violations: the measures were limited to
prohibiting patently unconstitutional conduct and establishing
policing mechanisms for future violations; they applied only to
states where Congress found constitutional violations were the
most common; and the Act contained “bailout” provisions to
relieve jurisdictions that complied with the Constitution from the
Act’s restraints. See Boerne, 117 S. Ct. at 2170. The Voting
Rights Act effectuated established constitutional guarantees.
Boerne and the Voting Rights Act cases teach us these
lessons: Only by respecting Supreme Court interpretations of the
Fourteenth Amendment can Congress avoid impermissibly
83
interpreting the Amendment itself. See Boerne, 117 S. Ct. at
2166-67. Congress nonetheless may, if circumstances warrant,
tweak procedures, find certain facts to be presumptively true, and
deem certain conduct presumptively unconstitutional in light of
Supreme Court interpretation. See South Carolina, 383 U.S. at
328, 333, 335, 86 S. Ct. at 818, 821-22. Thus, legislation enacted
pursuant to § 5 must hew to the contours of Supreme Court-
defined Fourteenth Amendment rights unless the legislation is a
proportional response to a documented pattern of constitutional
violation.
C. Is the ADEA Enforcement Legislation?
The ADEA does not qualify under Boerne’s rule as a proper
exercise of Congress’s § 5 power.1 First, the ADEA confers rights
far more extensive than those the Fourteenth Amendment
provides. Second, Congress did not enact the ADEA as a
1
There is pre-Boerne law in other circuits finding the exercise to be proper. See
Ramirez v. Puerto Rico Fire Serv., 715 F.2d 694, 699 (1st Cir. 1983); E.E.O.C. v. Elrod, 674
F.2d 601, 605 (7th Cir. 1982); Arritt v. Grisell, 567 F.2d 1267, 1271 (4th Cir. 1977). They share
a similar analysis, which has two flaws. First, it rests on broad language in Katzenbach v.
Morgan, 384 U.S. at 650-51, 86 S. Ct. at 1723-24, that Boerne has since rejected, 117 S. Ct.
at 2168. Second, it treats all “discrimination” as equally impermissible under the Equal
Protection Clause and therefore within Congress’s power to remedy. That is simply not true.
Race and age discrimination, for example, are subject to very different degrees of scrutiny.
84
proportional response to any widespread violation of the elderly’s
constitutional rights.
The Fourteenth Amendment right that the ADEA arguably
guards is that of equal protection. The Equal Protection Clause
generally prohibits states from treating similarly situated citizens
differently. See Romer v. Evans, 116 S. Ct. 1620, 1623 (1996).
But the degree of protection varies according to the class of
person discriminated against or the interest that the classification
compromises. See City of Cleburne, Tex. v. Cleburne Living Ctr.,
473 U.S. 432, 440-42, 105 S. Ct. 3249, 3254-55 (1985). State
action that confers different rights, or imposes different duties, on
persons belonging to nonsuspect classes is permissible if the
action has a rational relation to a legitimate governmental interest.
See Romer, 116 S. Ct. at 1627.
The elderly are not a suspect class, and state action that
disadvantages them is constitutional if it passes this rational basis
test. See Gregory v. Ashcroft, 501 U.S. 452, 470, 111 S. Ct. 2395,
2406 (1991); Massachusetts Bd. of Retirement v. Murgia, 427 U.S.
85307, 313-14, 96 S. Ct. 2562, 2567 (1976). Under this test, the
Supreme Court will not overturn a state measure “unless the
varying treatment of different groups or persons is so unrelated
to the achievement of any combination of legitimate purposes that
we can only conclude that the [people’s] actions were irrational.”
Gregory, 501 U.S. at 471, 111 S. Ct. at 2406 (quoting Vance v.
Bradley, 440 U.S. 93, 97, 99 S. Ct. 939, 942-43 (1979))
(alterations in original). And a state does not violate the Equal
Protection Clause “merely because the classifications made by
the laws are imperfect.” Id. at 473, 111 S. Ct. at 2407 (quoting
Murgia, 427 U.S. at 316, 96 S. Ct. at 2568). Moreover, “those
challenging the legislative judgment must convince the court that
the legislative facts on which the classification is apparently
based could not reasonably be conceived to be true by the
governmental decisionmaker.” Vance, 440 U.S. at 111, 99 S. Ct.
at 949.
The Supreme Court has put three mandatory retirement age
policies to this test, and all have passed. Gregory, 501 U.S. at
86
452, 111 S. Ct. at 2395 (policy required judges to retire at 70);
Vance, 440 U.S. at 93, 99 S. Ct. at 939 (policy required foreign
service officers to retire at 60); Murgia, 427 U.S. at 307, 96 S. Ct.
at 2562 (policy required police officers to retire at 50). In each
case, the policymaker’s perception that mental acuity and
physical stamina decline with age was rational basis enough to
support the line between those under the retirement age and
those over it. Gregory, 501 U.S. at 472, 111 S. Ct. at 2407;
Vance, 440 U.S. at 98-109, 99 S. Ct. at 943-49; Murgia, 427 U.S.
at 315-16, 96 S. Ct. at 2567-68. Thus, it is clear that the
Supreme Court does not deem all arbitrary treatment offensive to
the Fourteenth Amendment. To a spry octogenarian, of course,
a mandatory retirement age is arbitrary: it does not permit an
assessment of his or her individual capacities. To violate the
Equal Protection Clause, however, the arbitrary line itself must
have no rational basis. See Gregory, 501 U.S. at 472, 111 S. Ct.
at 2407. In short, the Equal Protection Clause permits state
87
action — if it has a rational basis — that may look like
arbitrariness.
By contrast, the ADEA was enacted to combat all
arbitrariness, unconstitutional or not. Its legislative history shows
that Congress particularly deplored, and wished to ban, arbitrary
age limits that overlooked some individuals’ abilities. See
E.E.O.C. v. Wyoming, 460 U.S. 226, 231, 103 S. Ct. 1054, 1057-
58 (1983); see also 29 U.S.C. § 621(a)(2) (statement of findings
and purpose) (“the setting of arbitrary age limits regardless of
potential for job performance has become a common practice”).
Not surprisingly, the Supreme Court has read the ADEA to
prohibit arbitrary line-drawing — even line-drawing that has a
rational basis. “It is the very essence of age discrimination for an
older employee to be fired because the employer believes that
productivity and competence decline with old age.” Hazen Paper
Co. v. Biggins, 507 U.S. 604, 610, 113 S. Ct. 1701, 1706 (1993).
“Thus the ADEA commands that ‘employers are to evaluate
[older] employees . . . on their merits and not their age.’ . . . The
88
employer cannot rely on age as a proxy for an employee’s
remaining characteristics, such as productivity, but must instead
focus on those factors directly.” Id. at 611, 113 S. Ct. at 1706
(quoting Western Air Lines, Inc. v. Criswell, 472 U.S. 400, 422, 105
S. Ct. 2743, 2756 (1985)).
The ADEA accordingly puts mandatory retirement ages to a
much more rigorous test than the Equal Protection Clause. A
rational basis does not suffice. Criswell, 472 U.S. at 421, 105 S.
Ct. at 2755. Rather, “[u]nless an employer can establish a
substantial basis for believing that all or nearly all employees
above an age lack the qualifications required for the position, the
age selected for mandatory retirement less than 70 must be an
age at which it is highly impractical for the employer to [e]nsure
by individual testing that its employees will have the necessary
qualifications for the job.” Id. at 422-23, 105 S. Ct. at 2756; see
also Arritt v. Grisell, 567 F.2d 1267, 1271 (4th Cir. 1977) (finding
a mandatory maximum hiring age violative of ADEA, but not of
the Equal Protection Clause).
89
Mandatory age limits are not the only illustration of the gulf
between the elderly’s rights under the Equal Protection Clause
and the elderly’s rights under the ADEA. State action that has a
disparate impact on old workers probably does not violate the
Equal Protection Clause, but it can violate the ADEA. Compare
Washington v. Davis, 426 U.S. 229, 239-40, 96 S. Ct. 2040, 2047-
48 (1976) (rejecting a disparate-impact theory of violation of the
Equal Protection Clause even for suspect classifications), with
MacPherson v. University of Montevallo, 922 F.2d 766, 770-73 (11th
Cir. 1991) (recognizing a disparate-impact claim theory under the
ADEA). Some courts have held that the ADEA so far
overshadows equal protection rights that the ADEA has
completely displaced 18 U.S.C. § 1983 as a vehicle for an age
discrimination claim. See LaFleur v. Texas Dep’t of Health, 126
F.3d 758, 760 (5th Cir. 1997); Zombro v. Baltimore City Police
Dep’t, 868 F.2d 1364, 1366-67 (4th Cir. 1989). Even where such
a § 1983 claim is recognized, the Fourteenth Amendment has
been held to permit demotion of a worker for the proffered rational
90
reason that new, young, and attractive faces were needed in her
stead — practically a paradigmatic ADEA violation. See Izquierdo
Prieto v. Mercado Rosa, 894 F.2d 467, 469, 472 (1st Cir. 1990).
And one court has gone so far as to question the existence of any
constitutional right against age-motivated individual employment
actions. See Whitacre v. Davey, 890 F.2d 1168, 1169 n.3 (D.C.
Cir. 1989).
As one might expect after considering these differences,
Congress’s reasons for amending the ADEA to subject states to
its restraints did not lie in concern for the Constitution. The
reports accompanying the 1974 amendments do not mention the
Constitution at all. See H.R. Rep. No. 93-913 (1974), reprinted in
1974 U.S.C.C.A.N. 2811, 2849-50. Congressional debate over
the amendments, which were included in the Fair Labor
Standards Act of 1974, was silent on constitutional violations. See
120 Cong. Rec. 7306-49, 8759-69 (1974). The supporters
simply thought it was a good idea, not that it furthered
enforcement of constitutional rights. See 1974 U.S.C.C.A.N. at
91
2849 (“Discrimination based on age — what some people call
‘age-ism’ — can be as great an evil in our society as
discrimination based on race or religion or any other characteristic
which ignores a person’s unique status as an individual and treats
him or her as a member of some arbitrarily-defined group.”)
(quoting Richard M. Nixon Address (March 23, 1972)).
In sum, the ADEA has created a new class of rights, but not
in response to any threat to constitutional rights. The ADEA thus
fails Boerne’s standard for enforcement legislation. Because the
ADEA is not a valid exercise of Congress’s § 5 authority,
Congress could not have abrogated the states’ Eleventh
Amendment immunity to suit.
D. Is the ADA Enforcement Legislation?
The ADA is not a valid enforcement statute for the same two
reasons the ADEA is not. First, like the aged, the disabled enjoy
no special rights under the Equal Protection Clause.2 The
2
Here I respectfully part company with Chief Judge Hatchett and the Ninth, Eighth, and
Fifth Circuits. I agree in general with those circuits’ analyses of the scope of Congress’s §
5 power. See Autio v. AFSCME, Local 3139, No. 97-3145 (8th Cir. Apr. 9, 1998);
Coolbaugh v. Louisiana, 136 F.3d 430, 432 (5th Cir. 1998); Clark v. California, 123 F.3d
1267, 1270 (9th Cir.), pet. for cert. filed, 66 U.S.L.W. 3308 (1997). The Clark court concludes
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Supreme Court has never found the disabled to be a suspect or
even quasi-suspect class. City of Cleburne, Tex. v. Cleburne Living
Ctr., 473 U.S. 432, 445-46, 105 S. Ct. 3249, 3257 (1985)
(declining to “set out on [the] course” leading to quasi-suspect
status for the disabled and infirm); see also Heller v. Doe by Doe,
509 U.S. 312, 321, 113 S. Ct. 2637, 2643 (1993) (confirming this
position). State action discriminating against the mentally
retarded, a subset of the disabled, is subject to only rational basis
review. City of Cleburne, 473 U.S. at 446, 105 S. Ct. at 3258.
The lower courts have interpreted these holdings to require only
rational basis review for all discrimination against the disabled.
See, e.g., Lussier v. Dugger, 904 F.2d 661, 670-71 (11th Cir.
1990). And this review is not searching: “courts are compelled
under rational-basis review to accept a legislature’s
generalizations even when there is an imperfect fit between
means and ends.” Heller, 509 U.S. at 321, 113 S. Ct. at 2643.
that the ADA lies within Congress’s enforcement power because the Constitution prohibits
discrimination against disabled people. See id. This reasoning does not go far enough; it
matters what kind of discrimination the Constitution prohibits, and whether the ADA was
aimed at that kind of discrimination. The Coolbaugh and Autio courts make essentially the
same mistake. See Coolbaugh, 136 F.3d at 441 (Smith, J., dissenting).
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By contrast, the ADA prohibits distinctions built on
generalizations — even if rational. It prohibits discrimination for
practically any reason that does not reflect a business necessity.
See 42 U.S.C. § 12112(a); see also Pritchard v. Southern Co.
Servs., Inc., 92 F.3d 1130, 1132 (11th Cir.) (listing elements of
prima facie ADA claim), amended on reh’g in other part, 102 F.3d
1118 (11th Cir. 1996), cert. denied, 117 S. Ct. 2453 (1997). It
requires assessment of each employee’s abilities and reasonable
accommodation to the point of undue hardship. See 42 U.S.C. §
12111(8) (defining “qualified individual with a disability” as one
who can perform essential functions of job with reasonable
accommodation); id. § 12112(b)(5)(A) (defining discrimination as
failure to make reasonable accommodations, unless
accommodation would create undue hardship for the employer);
H.R. Rep. No. 101-485, at 58, reprinted in 1990 U.S.C.C.A.N. 303,
340 (“[C]overed entities are required to make employment
decisions based on facts applicable to individual applicants or
employees, and not on the basis of presumptions as to what a
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class of individuals with disabilities can or cannot do.”). Thus, the
ADA provides much greater protection for the disabled than does
the Equal Protection Clause.
The second reason the ADA is not enforcement legislation
is that it was unaccompanied by any finding that widespread
violation of the disabled’s constitutional rights required the
creation of prophylactic remedies. In the legislative history,
Congress did not even mention that the ADA was meant to
remedy Fourteenth Amendment violations. The committee
reports that accompany the Act emphasize the discouraging
effect of employment discrimination on the disabled and the costs
to society of caring for those who could care for themselves,
absent discrimination. See, e.g., H.R. Rep. No. 101-485, at 41-47,
reprinted in 1990 U.S.C.C.A.N. 303, 323-29. Far from implying
that this state of affairs resulted from violations of any
constitutional rights, the legislative history and the Act itself show
that Congress was dismayed by the lack of rights the disabled
enjoyed before the Act’s passage. See 42 U.S.C. § 12101(a)(4)
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(“[I]ndividuals who have experienced discrimination on the basis
of disability have often had no legal recourse to redress such
discrimination[.]”); see, e.g., id. at 47-48, 1990 U.S.C.C.A.N. at
329-30. Altruistic and economic concerns motivated this Act —
not defense of the Constitution. The laudability of Congress’s
goals provides no exception to the limits on Congress’s
Fourteenth Amendment power.
Like the ADEA, the ADA was not enforcement legislation
under Boerne’s rule. Congress therefore could not abrogate the
states’ immunity.
III. Conclusion
For the foregoing reasons, I would: affirm the dismissal in
MacPherson; and reverse the denials of the motions to dismiss
in Kimel and Dickson, and remand with instructions to dismiss
for want of jurisdiction.
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