Federal Law Against Age and Disability Discrimination Meets the Dignity of the States

• DOI: 10.1177/0734371X13506623
• Date: 01 March 2014
• Author: David H. Rosenbloom
• Published date: 01 March 2014
• Subject Matter: Articles

Review of Public Personnel Administration

2014, Vol. 34(1) 23 –39

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DOI: 10.1177/0734371X13506623

rop.sagepub.com

Article

Federal Law Against Age

and Disability Discrimination

Meets the Dignity of the

States: The Supreme Court,

States’ Sovereign Immunity,

and Judicial Review

David H. Rosenbloom1

Abstract

Building on Norma Riccucci’s Review of Public Personnel Administration article on

“The U.S. Supreme Court’s New Federalism and Its Impact on Antidiscrimination

Legislation,” the present study proceeds by (a) outlining public employees’ federal

statutory rights to equal employment opportunity; (b) analyzing state sovereign

immunity doctrine; (c) explaining how, when coupled with Fourteenth Amendment

equal protection analysis, state sovereign immunity frustrates Congress’ effort to

protect state employees from age and disability discrimination; and (d) considering

whether jurisprudential concern for the role of the federal courts in the constitutional

separation of powers contributes to the Supreme Court’s unwillingness to authorize

state employees to litigate their federal statutorily based age and disability claims in

federal and state courts. The article concludes that, when combined, the Supreme

Court’s state sovereign immunity doctrine and equal protection analysis negate state

employees’ federal statutory rights against age and disability discrimination as well as

Congress’ Fourteenth Amendment authority to protect these public servants from

such disparate treatment.

Keywords

disability discrimination, age discrimination, sovereign immunity, equal protection,

Civil Rights Act (1964)

1American University, Washington, DC, USA

Corresponding Author:

David H. Rosenbloom, Distinguished Professor of Public Administration, School of Public Affairs,

American University, 4400 Massachusetts Avenue, NW, Washington, DC 20016-8070, USA.

Email: rbloom313@hotmail.com

506623ROP34110.1177/0734371X13506623Review of Public Personnel AdministrationRosenbloom

research-article2013

24 Review of Public Personnel Administration 34(1)

In December 2012, the U.S. Senate failed to ratify the United Nation’s Convention on

the Rights of Persons With Disabilities. Senators and interested parties voiced concern

that the Convention might undermine U.S. sovereignty and that being partly modeled

on the U.S. federal Americans With Disabilities Act (ADA) of 1990 joining the

Convention is unnecessary (Cox & Pecquet, 2012). However, state employees are a

major class of persons in the United States who are not protected against disability

discrimination. Their federal statutory rights to equal opportunity are not frustrated by

U.S. sovereignty, but rather by Supreme Court doctrine regarding state sovereign

immunity, which prevents them from suing their state employers for illegal disability

discrimination. In addition, they are not the only unprotected state employees. The

same is true of those who would sue their employers for violation of federal age dis-

crimination regulations. How and why were these exceptions carved out to the appli-

cation of equal employment opportunity (EEO) law beginning with the 1964 Civil

Rights Act (CRA)?

In “The U.S. Supreme Court’s New Federalism and Its Impact on Antidiscrimination

Legislation,” Norma Riccucci (2003) provided a masterful analysis of the Supreme

Court’s decisions regarding state-level public employees’ protection under federal

anti-age and anti-disability legislation. She comprehensively and convincingly shows

how federal law and congressional intent are defeated as part of the Supreme Court’s

project to reestablish “dual sovereignty” federalism by reinforcing the states’ sover-

eign immunity from suits brought by their employees seeking to invoke federal rights

to nondiscrimination. The present article augments Riccucci’s analysis by analyzing

how the doctrinal connection between the Supreme Court’s state sovereign immunity

cases and its interpretation of Fourteenth Amendment equal protection serve to negate

Congress’ clear intent to protect state employees from age and disability discrimina-

tion. It also considers whether the Court’s decisions reflect a jurisprudential concern

for separation of powers limitations on the federal judiciary’s role in public personnel

management. It concludes that the Court’s state sovereign immunity decisions frus-

trate the broad aim of the CRA of 1964, as amended and augmented, to ensure EEO

for all public employees.

The article proceeds by (a) outlining public employees’ federal statutory rights to

EEO; (b) analyzing state sovereign immunity doctrine; (c) explaining how, when cou-

pled with Fourteenth Amendment equal protection analysis, state sovereign immunity

frustrates Congress’ effort to protect state employees from age and disability discrimi-

nation; and (d) considering whether jurisprudential concern for the role of the federal

courts in the constitutional separation of powers contributes to the Supreme Court’s

unwillingness to authorize state employees to litigate their federal statutorily based

age and disability claims in federal and state courts. The article concludes that, when

combined, the Supreme Court’s state sovereign immunity doctrine and equal protec-

tion analysis negate state employees’ federal statutory rights against age and disability

discrimination as well as Congress’ Fourteenth Amendment authority to protect these

public servants from such disparate treatment. This negation is somewhat reinforced

by concerns regarding the separation of powers.