Labor and Employment

SUPREME COURT CONTINUES ITS MARCH FOR FEDERALISM: ADEA NOT "APPROPRIATE" LEGISLATION.

Author: Lynn G. Franklin, Esq./ Franklin & Willard/ Orlando, Florida

Add yet another to the recent series of rebuffs the Supreme Court has dealt Congress in matters where congressional legislation has overextended its constitutional foundation. In a decision handed down this January, the Court ruled, by another all-to-familiar 5-4 split, that the Age Discrimination in Employment Act, 29 U.S.C. 621, et seq., was not proper legislation under Congress’ Fourteenth Amendment authority, and accordingly, the States’ Eleventh Amendment immunity was not abrogated by the Act. Although the decision was not wholly anticipated by proponents of the view espoused, the ruling was a natural extension of the Court’s 1996 decision in Seminole Tribe v. Florida, 116 S. Ct. 1114 (1996), which limited Congress’ ability to abrogate the States’ Eleventh Amendment immunity to suit in federal court, and its 1997 decision in City of Boerne v. Flores, 117 S. Ct. 2157 (1997), which struck down the Religious Freedom Restoration Act as an invalid exercise of congressional authority under the Fourteenth Amendment.

The recent ruling in Kimel v. Bd. of Regents, ___ S. Ct. ____, 2000 WL 14165 (January 11, 2000) differs from its predecessors in several respects, however. It was perhaps the first time the Court has extended its recent efforts to reinforce the mandate of federalism to employment related civil rights legislation. It is also, by far, the most expansive effort. As such, it carries profound implications for similar legislation, such as the Americans with Disabilities Act (ADA), the Family Medical Leave Act (FMLA), and even the Individuals with Disabilities Education Act (IDEA), to name a few. It was also a more stringent, if not hardened, statement from both the majority and the dissent, of the grounds which have polarized the Court in recent years. All told, the Kimel decision, coupled with other recent decisions of the Court which follow similar lines with regard to limitations to congressional legislative authority, could spell trouble for the future enforceability of such legislation not only with regard to the States, but potentially to private employers as well.

THE AGE DISCRIMINATION IN EMPLOYMENT ACT

The Age Discrimination in Employment Act of 1967 (ADEA), as amended in 1974, makes it unlawful for any employer, including a State or local government, "to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual . . . because of such individual’s age." 29 U.S.C. 623(a)(1). There are several exceptions to the Act’s broad proscriptions. An employer may rely on age in making employment determinations where it can be shown to be a "bona fide occupational qualification reasonably necessary to the normal operation of the particular business." 29 U.S.C. 623(f)(1). An employer may also engage in conduct otherwise prohibited by the Act if the employer’s conduct is premised upon facts other than age. 29 U.S.C. 623(f)(1). An employer may also discharge or discipline an employee under the Act, despite the employee’s age, where such action is based on "good cause." 29 U.S.C. 623(f)(3). Further, recent amendments to the Act permit mandatory age limits for law enforcement officers and firefighters, at the federal, state and local levels. 29 U.S.C. 623(j) (1994 ed., Supp. III).

When originally passed, the ADEA applied only to private employers, 29 U.S.C. 630(b) (1964 ed., Supp. III), however, in 1974, Congress passed amendments to the FLSA which included a provision purportedly extending the ADEA’s substantive requirements to the States. Fair Labor Standards Amendments of 1974 (1974 Act), 28, 88 Stat. 74. To expand the Act through the 1974 amendments to the Fair Labor Standards Act, Congress merely amended the definition of "employer" under the Act 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. . . . " 29 U.S.C. 630(b). Congress also amended the Act’s definition of "employee" by redefining the term as "an individual employed by an employer," with specific exceptions regarding elected officials and appointed policy makers. 29 U.S.C. 630(f). Through the same legislation, Congress amended the enforcement provisions of the Fair Labor Standards Act (and incorporated such amendments by reference in the ADEA) to permit an individual to bring a civil action "against any employer (including a public agency) in any Federal or State court of competent jurisdiction." Another section of the FLSA defines "public agency" to include "the Government of a State or political subdivision thereof," and "any agency of . . . a State, or a political subdivision of a State." 29 U.S.C. 203(x).

The foregoing language, utilized by Congress to extend the mandates of the ADEA to State and local governmental employers, is the starting point for the challenges to the Act in the consolidated Kimel appeal. It bears emphasis at this point that, in the ADEA, unlike similar legislative acts which establish national standards with regard to societal classifications, Congress did not expressly invoke its remedial authority to legislate under Section 5 of the Fourteenth Amendment. In fact, neither the legislative record nor the Act itself contain any mention of Section 5.

THE CASES BELOW

The Court’s decision in Kimel flows from the joining of three separate cases, two originating in Florida, and one originating in Alabama, which were consolidated on appeal before the Eleventh Circuit. The first of the three matters was brought before the United States District Court for the Northern District of Alabama in 1994, upon allegations by two associate professors against their State employer, the University of Montevallo. The professors claimed the University had denied them certain benefits of employment due to their age, and that the University maintained a salary and evaluation system that has had a disparate impact on older faculty members. The plaintiffs sought both monetary and injunctive relief. The State of Alabama filed, and the District Court granted, a motion to dismiss on Eleventh Amendment grounds. Notably, the District Court’s decision was premised on the notion that the ADEA was not a proper exercise of Congress’ authority under Section 5 of the Fourteenth Amendment. MacPherson v. University of Montevallo, 938 F. Supp. 785 (N.D. Ala. 1996).

In April, 1995, 36 professors and librarians employed by Florida State University (FSU) and Florida International University (FIU), brought disparate impact claims against the Florida Board of Regents under the ADEA and the Florida Civil Rights Act. The plaintiffs’ claims emanated from a 1991 collective bargaining agreement which purportedly required the State to make specified market adjustments to faculty salaries to reflect the value of the employee’s experience as compared to more recently hired employees. The decision as to whether or not certain moneys allocated by the legislature for the purpose of the agreement was left to the discretion of each State university. Both FSU and FIU chose not to allocate the funds for faculty raises. The plaintiff’s sued, alleging, inter alia, the action had a disproportionate impact on them. The Board of Regents moved to dismiss on Eleventh Amendment immunity grounds. In denying the Board’s motion, the United States District Court for the Northern

District of Florida, Tallahassee Division, held that the ADEA contained a clear abrogation of State immunity and was an appropriate exercise of Congress’ power under Section 5. Kimel v. Florida Bd. of Regents, et al., Case No. TCA 95-40194-MMP (N.D. Fla. May 17, 1996).

In May of 1996, Wellington Dickson, a correctional officer employed by Florida’s Department of Corrections (DOC) at Jackson Correctional Institution brought an action against the DOC, and other individuals and entities, alleging, among other things, that the State and its officials violated the ADEA by failing to promote him to the position of sergeant. Dickson also asserted violations of the Americans with Disabilities Act. Dickson sought both monetary and injunctive relief. The DOC filed a motion to dismiss asserting Eleventh Amendment immunity grounds as to Dickson’s claims under both the ADEA and ADA. The United States District Court for the Northern District of Florida, Pensacola Division, denied the motion, stating that Congress had expressed its intent to abrogate the State’s Eleventh Amendment immunity in the ADEA, and that both the ADEA and the ADA were appropriate legislation under Section 5. Dickson v. Florida Dept. of Corrections, Case No. 5:96cv207RH (N.D. Fla. November 5, 1996).

The plaintiffs in the MacPherson case, and both State defendants in the Kimel and Dickson cases, appealed to the Eleventh Circuit, and the three cases were consolidated on appeal. In 1998, a divided panel of the Eleventh Circuit held that the ADEA does not abrogate the State’s Eleventh Amendment immunity. See Kimel v. Bd. of Regents, 139 F. 3d 1426 (11th Cir. 1998). Judge Edmondson rested his opinion on the absence in the language of the ADEA of an unmistakably clear statement of congressional intent to abrogate the States’ sovereign immunity. Judge Edmondson also noted, however, his belief that good reason exists to doubt that the ADEA was, or could have been enacted, under the Fourteenth Amendment. Id. at 1430-31. Judge Cox, concurring in Judge Edmondson’s ultimate conclusion of State sovereign immunity under the ADEA, premised his conclusion on the absence of congressional power under Section 5 of the Fourteenth Amendment to abrogate the State’s Eleventh Amendment immunity under the ADEA. Judge Cox concluded that the ADEA confers far more extensive rights than the Fourteenth Amendment provides, and was not enacted as a proportional response to any widespread violation of the elderly’s constitutional rights. Id. at 1447. Chief Judge Hatchett dissented on both grounds. Id. at 1434.

In January of 1999, the Supreme Court granted certiorari, 119 S. Ct. 901 (1999), to resolve the conflict among the Federal Courts of Appeals on the question of whether the ADEA validly abrogates the State’s Eleventh Amendment immunity.

THE ELEVENTH AMENDMENT

Under the Eleventh Amendment,

"[t]he 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."

While the text of the Eleventh Amendment does not so indicate, the Supreme Court has interpreted the Amendment "‘to stand not so much for what it says, but for the presupposition . . . which it confirms.’" Seminole Tribe of Fla. v. Florida, 116 S. Ct. 1114 (1996)(quoting Blatchford v. native Village of Naotak, 111 S. Ct. 2578 (1991)). Accordingly, since 1890, the Eleventh Amendment has also been upheld as a jurisdictional bar to suits brought in federal courts against non-consenting States by the State’s own citizens. See Hans v. Louisiana, 10 S. Ct. 504 (1890).

The immunity to suit afforded by the Eleventh Amendment is not without limitation. Such immunity may be waived by the States, through legislative enactments consenting to suit, or by Congress, under certain circumstances. In order for Congress to abrogate the Eleventh Amendment’s bar to suit in federal court, it must first unequivocally express its intent to abrogate that immunity; and secondly, it must have acted pursuant to a valid grant of constitutional authority. Seminole Tribe, 116 S. Ct. at 1123-1124.

THE KIMEL RULING

After an in-depth analysis of both the language and the legislative history of the ADEA, a majority of the Justices concluded that the Act did, in fact, include an "unmistakably clear" indication of Congress’ intent to abrogate the States’ Eleventh Amendment immunity. Interestingly, those Justices reached this conclusion in the absence of any language within the Act specifically referring to or regarding the Fourteenth Amendment, or specifically regarding abrogation of sovereign immunity. Rather, the decision is premised on various references, included in the 1974 Amendments, which expand the definitions of an employer and public agency to include the States and subdivisions thereof, and permits suits in any court of competent jurisdiction. The decision also contravenes established precedent with regard to the analysis of legislation for the purpose of determining congressional abrogation of sovereign immunity. However, the decision of the majority as to this issue, did not resolve the matter. Rather, the Court was left facing the delicate issue of the constitutional authority supporting the congressional abrogation of immunity.

To fully understand the analysis undertaken for the ultimate holding, a certain amount of basic constitutional law is required. It is axiomatic, that Congress can only legislate under the authority provided to the federal legislative branch by the Constitution. Our Constitution creates a federal government with specific enumerated powers from the 13 original States. See U.S. Const. art. I, 8. See also United States v. Lopez, 115 S. Ct. 1624, 1626 (1995). Certain powers held by the State governments were delegated to the federal government through the Constitution. Id. Those powers, however, were limited and defined. Id. All remaining powers of governance remained with the States. Id.

Two of the relevant sources of congressional authority, are the Commerce Clause, found in Article I, 8 of the Constitution, and the Enforcement Clause, set forth in Section 5 of the Fourteenth Amendment. The Commerce Clause specifically delegates to Congress the power "[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." U.S. Const. art. I, 8, cl. 3 Under Section 5 of the Fourteenth Amendment, Congress is granted the power ". . .to enforce, by appropriate legislation, the provisions of this article." Section 5, in other words, grants Congress the authority to enforce the provisions of the Fourteenth Amendment, including the mandate of Section 1, that "[n]o State shall . . . deny to any person with its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, 1.

Turning to the question of the constitutional validity of the ADEA’s extension to state and local governments, the Court noted that it had previously upheld the Act against a Tenth Amendment challenge to its validity under the Commerce Clause. Kimel, 2000 WL 14165, at *11. Accepting, without addressing, the Court’s previous finding in EEOC v. Wyoming, 103 S. Ct. 1054 (1983), the Court turned to the question of whether the ADEA was also a valid enactment through Congress’ Fourteenth Amendment Section 5 enforcement authority, given the intervening decision in Seminole Tribe.

In Seminole Tribe, the Court established that Congress may only abrogate the States’ Eleventh Amendment immunity pursuant to its authority under Section 5 of the Fourteenth Amendment to ". . . enforce, by appropriate legislation, the provisions of this article." 116 S. Ct. at 1125. Indeed, as the Court noted, Section 5 of the Fourteenth Amendment, has long been recognized as providing such authority. See Fitzpatrick v. Bitzer, 96 S. Ct. 2666 (1976). If the ADEA is, in fact, a valid enactment within Congress’ Section 5 authority, then the States’ Eleventh Amendment immunity would be thereby abrogated, and the State would be subject to suit under the Act. If not, the federal courts would have no jurisdiction over the States under the ADEA.

Recently, in City of Boerne v. Flores, 117 S. Ct. 2157 (1997), the Court again recognized Section 5 as an affirmative grant of power to Congress. Specifically, the Court opined that "[i]t 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 conclusions are entitled to much deference." City of Boerne, 117 S. Ct. at 2172. The Court also recognized, through analysis of long standing precedent, that legislation passed pursuant to Section 5 authority need not merely parrot the language of the Fourteenth Amendment, but may include within its scope limitations which are designed to prohibit a somewhat broader swath of conduct, including conduct which is not itself forbidden by the Amendment’s text. Id. at 2163.

Having so noted, however, the City of Boerne Court went on to hold that the same language which provides such authority to Congress, also serves to limit that authority. Specifically, the Court in City of Boerne held that Congress cannot "decree the substance of the Fourteenth Amendment’s restrictions on the States," and further noted that Congress " . . . has been given the power ‘to enforce,’ not the power to determine what constitutes a constitutional violation." Id. at 2164. In City of Boerne, the Court reiterated what its brethren held almost two centuries ago in Marbury v. Madison, 5 U.S. 137, 177 (1803) -- that the ultimate interpretation and determination of the Fourteenth Amendment's substantive meaning remains the province of the Judicial Branch. Id. at 2172. Accordingly, legislation which alters the meaning of the Fourteenth Amendment, as interpreted by the Judicial Branch, cannot be said to be enforcing it. See id. at 2164.

To ensure that Congress does not tread upon the Court’s role in determining the substantive boundaries of the Fourteenth Amendment, the Court required there to be a "congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end." City of Boerne, 117 S. Ct. at 2164. In determining whether there existed an appropriate "congruence and proportionality" between the harm purportedly addressed through the legislation in question in City of Boerne, the Religious Freedom Restoration Act of 1993 (RFRA), and the means by which the Act redressed that harm, the Court first conducted exhaustive review of the text of the Act, with special emphasis on the stated purposes of the Act, and the legislative history of the Act. This review was designed to flesh out the precise "wrong" addressed by Congress, and the actual unconstitutional conduct which supported legislation redressing the purported "wrong." Id. at 2169-2171. Next, the Court examined the means by which the legislation addresses the wrong . The Court noted that only "anecdotal evidence" of the identified "wrong," standing alone, would not support a sweeping legislation proscription of conduct. Id.

In 1999, the Court had another occasion to apply the "congruence and proportionality" test in Florida Prepaid Postsecondary Educ. Expense Bd. v. College Savings Bank, 119 S. Ct. 2199 (1999). The Florida Prepaid case involved review of the validity of abrogation of Eleventh Amendment immunity in a provision of the Patent and Plant Variety Protection Remedy Clarification Act (Patent Remedy Act). The Court found the Patent Remedy Act failed to meet the "congruence and proportionality" test, in light of the failure of Congress to identify a pattern of patent infringement by the States, let alone a pattern of constitutional violations. Id. at 2207. The Court further noted that, as suggested in the legislative record, the Patent Remedy Act was not designed to respond to a history of widespread and persisting deprivation of constitutional rights, but rather, appears to have been premised upon a handful on instances of patent infringement by states, which did not rise to the level of a constitutional violation. Id. at 2210.

The primary importance of the Florida Prepaid decision, with regard to the subsequent decision in Kimel, is the explicit requirement that the Act, and its legislative history, bear some notation that the law is premised on a record of unconstitutional conduct by the States. While there may be sufficient justification to apply legislation to the private sector, through Congress’ Commerce Clause authority, the Court required explicit proof of unconstitutional conduct by the States in order to support invocation of Congress’ authority under Section 5 of the Fourteenth Amendment. It was the application of this requirement, which doomed the ADEA to follow both RFRA and the Patent Remedy Act.

In Kimel, the Court concluded that the ADEA failed application of the "congruence and proportionality" test, as the substantive requirements of the Act impose on state and local governments greater restrictions than are necessary to redress any unconstitutional conduct conceivably targeted by the Act. Kimel, 2000 WL 14165, at *13. The stated purpose of the ADEA is to redress discrimination in employment on the basis of age. As noted above, the ADEA prohibits a broad range of conduct by employers, with few exceptions, and creates a federal cause of action against employers who fall within the purview of the Act.

In Kimel, the Court noted that, historically, they have found age classifications do not violate the Equal Protection Clause where there is a rational basis to support the differentiation. Id. The lower level of scrutiny afforded age classifications was justified, the Court opined, because, "[a]ge classifications, unlike governmental conduct based on race or gender, cannot be characterized as ‘so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy.’" Id.(citing Cleburne v. Cleburne Living Center, Inc., 105 S. Ct. 3249 (1985)(holding disability classifications to require only rational basis scrutiny)). The Court further noted that, "[o]lder persons, again, unlike those who suffer discrimination on the basis of race or gender, have not been subjected to a ‘history of purposeful unequal treatment.’" Id. (citing Massachusetts Bd. of Retirement v. Murgia, 96 S. Ct. 2562 (1976)).

Accordingly, under the Court’s existing precedent, States may make classifications on the basis of age, without violating the Equal Protection Clause if the classification is rationally related to a legitimate state interest. Kimel, 2000 WL 14165, at *14. The Court noted in Kimel that the States need not match age classifications to the interests they serve with "razorlike precision." Id. The Court further noted that, when challenging age distinctions under the Equal Protection Clause, the burden is on the individual, not the State, to prove that the classification is not based on facts which could be reasonably conceived as true by the governmental decisionmaker. Id. However, under the ADEA, classifications based on the age, which would otherwise be permissible for the States, are prohibited. Id. at *15.

Specifically, the Court noted that the ADEA’s exception for age classifications premised on a bona fide occupational qualification (BFOQ) requires such justification to be "reasonably necessary" for the particular business. Id. The Court distinguished this requirement from Equal Protection Clause’s requirement of rationality, finding the former a "far cry" from the rational basis standard, and an impermissible shift of the burden of proof. Id. Indeed, the Court noted that it had previously held the BFOQ standard adopted by the ADEA to be significantly different, and more stringent, than the rational basis test. Id. (citing Western Air Lines, Inc. v. Criswell, 105 S. Ct. 2743 (1985)). Consequently, the Court noted that the proscriptions of the ADEA plainly impose on the States substantially higher burdens than that imposed by the Equal Protection Clause, and specifically, that the ADEA’s substantive requirements are at a level more akin to the heightened scrutiny afforded classifications of race and gender under the Equal Protection Clause. Id.

The heightened protection to age classifications under the ADEA, according to the Kimel Court, were not counterbalanced by any evil on the part of the States. The Court noted that conspicuously absent from the Act, as well as its legislative history, is any finding or discussion of a pattern of age discrimination by the States, much less evidence of age discrimination that rose to the level of a constitutional violation. Id. at *16. Indeed, the Court concluded, upon review of the ADEA’s legislative history, that the Act, as applied to the States, was an "unwarranted response to a perhaps inconsequential wrong." Id. The Court expressly noted that review of the ADEA’s legislative history, as a whole, revealed virtually no evidence that state and local governments were unconstitutionally discriminating against their employees on the basis of age. Id. at *17. Citing City of Boerne, the Court held that "[a]lthough the lack of support is not determinative of the Section 5 inquiry, . . . Congress’ failure to uncover any significant pattern of unconstitutional discrimination here confirms that Congress had no reason to believe that broad prophylactic legislation was necessary in this field." Id. Absent such evidence to support the Act, the Court found the ADEA as an invalid exercise of Congress’ power under Section 5 of the Fourteenth Amendment, and as a result, an invalid attempt to abrogate the States’ Eleventh Amendment immunity. Id.

THE KIMEL FALLOUT

While the Kimel decision is undoubtedly far-reaching, and a much heralded victory for the States, it does not leave state employees formerly falling within the ambit of the ADEA without recourse. Kimel does remove any basis for a cause of action by State employees under the ADEA in federal court, and recently decided Alden v. Maine, 119 S. Ct. 2240 (1999), will likely prohibit bringing an ADEA claim in state court as well. However, as noted by Justice O’Connor, most states have laws which prohibit age discrimination, Kimel, 2000 WL 14165, at *18, and some state legislation, such as the Florida Civil Rights Act, arguably provide greater protection than that afforded under the ADEA. Aggrieved state employees also have the remedies remaining under 42 U.S.C. 1983 for injunctive relief, in appropriate circumstances. Further, the Kimel decision does not impact the ability of a federal agency, such as the EEOC, to bring an action against a state in federal court, as that right is grounded in Article II, Section 3 of the Constitution.

Although few following the Court’s recent trend in the direction of States’ rights might have anticipated the Court would make such a strong statement in Kimel, the decision is not a complete surprise when considered against the backdrop of Seminole Tribe, City of Boerne, Florida Prepaid, and the similar argument made by dissenting Justices Berger, Powell, Rehnquist and O’Connor in EEOC v. Wyoming. Having taken this step, it now leaves question as to the continuing validity of other similar federal legislation as applied to the States, including the Americans with Disabilities Act, the Equal Pay Act, the Family Medical Leave Act, and the Individuals with Disabilities in Education Act (which is similar legislation premised on Congress’ Fourteenth Amendment authority, that sets employment and education standards with regard to disability). Indeed, challenges to the ADA were presented in the Dickson v. Department of Corrections, consolidated with Kimel on appeal, and that issue will be resolved the Court this Term. Undoubtedly, a strong argument that a similar ruling should follow with regard to the ADA can be made, given the ADA’s prohibition of a wide range of rational employment standards which do not otherwise violate of the Equal Protection Clause. Similar arguments regarding the Equal Pay Act were squarely before the Court this Term, but were recently remanded to the Circuit Courts for re-evaluation after Kimel. Additionally, given the Court’s recent limitations on congressional authority to legislate under the Commerce Clause, it is foreseeable that serious attacks on employment related legislation may follow on behalf of private employers.

Finally, while the Court’s decision in Kimel is founded in stare decisis, it does so at the expense of the same principle it upholds. It is abundantly clear the Court can break from precedent when it so desires, i.e. Seminole Tribe. Further, as the Kimel dissenters argue, the Court had ample authority to reach a different conclusion had it so chosen. As society changes, such contradictions are likely to be seen more and more often, and perhaps necessarily so. Congress has, in recent times, greatly expanded the jurisdiction of the federal courts through legislation more founded in the establishment of social standards than the prevention of constitutional wrongs. At the same time, it has not matched its lofty goals with adequate support for a beleaguered judiciary. It leaves one to speculate as to whether the Court’s recent backlash, in light of its past latitude for congressional intrusion into traditional provinces of State sovereignty, may be as much a matter of finance as a matter of federalism.

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