Legal Watch: The King Is Back? Sovereign Immunity and the Equal Pay Act
By Donna R. Euben
The king is back—and I’m not talking about Elvis Presley. Earlier this year, the U.S. Supreme Court gave new life to the eighteenth-century notion that public servants serve at the whim of a benevolent king. In a 5 to 4 ruling in Kimel v. Florida Board of Regents, the Court severely limited the rights of public employees, including professors and academic professionals who teach at state institutions, to sue their employers for violation of federal age discrimination law. The Supreme Court consolidated three cases in Kimel, two of which involved professors. Thus the Court continued its dramatic resurrection of the sovereign immunity of states: long live the king!
This revival of sovereign immunity under the Eleventh Amendment of the U.S. Constitution threatens the civil rights, including those protected under the Equal Pay Act, of professors and academic professionals at state colleges and universities.
Sovereign Immunity
For the past hundred years or so, the king has not been omnipotent. Courts have enabled individual citizens to sue states in federal court for violations of certain rights; they have done so to balance Congress’s power to legislate, often exercised under the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution, with the rights of states under the Eleventh Amendment. (See "The Sleeper Amendment," on page 95 of the May–June 2000 issue.) The Kimel ruling has upset that balance.
The Court ruled Congress’s enactment of the federal age-discrimination law inappropriate. Even though Congress may enact laws enforcing existing constitutional rights, the Court found that the federal age-discrimination law created "new" rights beyond those afforded by the Constitution. The Court further noted that age is different from race and gender: it is not subject to as stringent a scrutiny by courts, and "older persons . . . have not been subjected to a ‘history of purposeful unequal treatment.’"
After Kimel, professors and academic professionals at state institutions can no longer sue their employers for monetary damages for federal age-discrimination violations.
Life After Kimel: The Equal Pay Act
In light of Kimel, courts are scrutinizing other civil rights, including the Equal Pay Act (EPA), which prohibits wage discrimination at public and private institutions among men and women who perform equal or substantially similar work. This past winter, the Supreme Court returned to lower federal courts for reconsideration under Kimel two EPA cases involving faculty.
In one case, Janice Anderson, a professor of communications at the State University of New York at New Paltz filed suit against her institution, alleging a number of claims, including an EPA violation. She asserts that since 1984 she has been paid less than male faculty members of similar rank at her institution despite her equivalent or superior qualifications, record, and workload. The trial court found, and the federal appellate court affirmed, that the university was not immune from the EPA claim.
In the other case, three women professors in the College of Business sued Illinois State University in federal court, alleging that their salaries were low because of their gender. The suit is now a class action involving 350 tenure-track and tenured women professors. The trial court ruled, and the federal appellate court affirmed, that the university was not immune from the EPA claim.
Meanwhile, other federal courts are addressing whether states are immune from EPA suits under Kimel. In March 2000 the Eleventh Circuit, which issued the Kimel decision the Supreme Court affirmed, ruled in a case involving the Florida Department of Transportation that states are not immune under the Eleventh Amendment from the EPA.
As we await these EPA decisions, we must continue to follow the sovereign immunity issue closely—both in the courts and in the legislative arena—because the immunity defense asserted by some state institutions will impair the ability of academics to protect themselves from violation of their federal civil rights.
Donna Euben is AAUP counsel.
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