State of Alaska v. Eeoc

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

STATE OF ALASKA, Office of the 

Governor,

Petitioner,

v. No. 07-70174

EEOC; UNITED STATES OF 

AMERICA, OPINION

Respondents,

MARGARET G. WARD,

Intervenor.



Petition for Review of an Order of the

United States Equal Employment Opportunity Commission

Argued and Submitted

August 7, 2007—Anchorage, Alaska

Filed November 8, 2007

Before: J. Clifford Wallace, John T. Noonan, and

Richard A. Paez, Circuit Judges.

Opinion by Judge Noonan;

Concurrence by Judge Wallace;

Dissent by Judge Paez

14707

STATE OF ALASKA v. EEOC 14709

COUNSEL

Richard W. Postma, Jr., Anchorage, Alaska, for the petitioner.

Stephanie Marcus, Washington, D.C., for the respondents.

OPINION

NOONAN, Circuit Judge:

The State of Alaska, Office of the Governor (the Gover-

nor’s Office) appeals the remand order of the United States

14710 STATE OF ALASKA v. EEOC

Equal Employment Opportunity Commission (the EEOC) in

a suit against the State of Alaska brought by two discharged

members of the Governor’s Office. We hold that the suit is

barred by the Eleventh Amendment and direct its dismissal.

FACTS AND PROCEEDINGS

In the election of November 1990, Governor Walter Hickel

ran for reelection with Jack Coghill as his running mate for

Lieutenant-Governor. Hickel and Coghill were elected. In a

gesture to his ideologically-different running mate, Hickel

appointed Margaret Ward (Ward) to be Director of the Office

of the Governor in Anchorage and appointed Lydia Jones

(Jones) to be one of his Special Staff Assistants in the same

office. Both positions were exempt from civil service. Ward’s

responsibilities as set out by her included supervision of “all

operations of Governor’s Anchorage Regional Office, includ-

ing personnel. Promote the goals and agenda of Governor

Hickel and his administration.” Jones’ responsibilities, as set

out in a staff description of the position, included response to

the voluminous correspondence addressed to the governor and

the handling of 350 to 450 telephone calls per day. The Spe-

cial Assistants were expected to give “a friendly ear or help-

ing hand for a constituent” and to be advocates of the

governor’s programs in the legislature or with the public. The

job description concluded: “It is a position of political sensi-

tivity demanding ever-changing priorities and the flexibility

to handle almost any type of problem.”

During his term of office, Lieutenant-Governor Coghill

took steps to be able to run for governor in the 1994 election.

By midsummer 1993, Ward was believed to be assisting his

forthcoming campaign. The Governor’s Office suspected that

Jones was assisting her. As a consequence of these suspicions,

the Chief of Staff of the Governor’s Office directed the Direc-

tor of Administrative Services to issue a memorandum to all

senior staff in the Governor’s Office. Issued on September 23,

1993, the memo advised the senior staff of the legal limits on

STATE OF ALASKA v. EEOC 14711

any campaign activities by them. On February 10, 1994, Ward

received a warning against continuing her rumored campaign

conduct. The next day, February 11, 1994, Ward reported to

the Governor’s Office that Jones was complaining about sex-

ual harassment. On February 15, 1994, the Governor’s Office

ordered an investigation. On March 11, 1994, Ward and Jones

held a press conference in which they criticized Governor

Hickel. They were at once placed on administrative leave. On

April 22, 1994, when the Governor’s Office investigation was

completed, their employment was terminated because of their

alleged election activities.

On April 25, 1994, the Governor’s Office was served with

complaints to the EEOC by Jones and Ward. Jones’ complaint

alleged that she had suffered sexual harassment by a male

Special Staff Assistant and that she had been paid less than

her male counterparts because of her gender and her race

(black). Ward alleged that she had suffered sex discrimination

and retaliatory discrimination. Filed as charges under Title

VII of the Civil Rights Act, the charges were classified by the

EEOC as falling under the Government Employee Rights Act

(GERA). The case lay dormant until January 15, 2003.

Before the EEOC reopened the case, Jones died. Her wid-

ower, Kenneth Miller, alleged that he stepped into her shoes.

The Governor’s Office, pleading immunity under the Elev-

enth Amendment and assorted other defenses, moved for

summary judgment. On January 4, 2005, an Administrative

Law Judge denied summary judgment on the other defenses,

but doubted if he had jurisdiction to rule on immunity under

the Eleventh Amendment and so made no ruling on this

defense, certifying it to the EEOC itself. On December 14,

2006, the EEOC ruled that “an agency will not rule on the

constitutionality of a statute that it is assigned to administer.”

The EEOC remanded the case to the ALJ.

The Governor’s Office appeals.

14712 STATE OF ALASKA v. EEOC

ANALYSIS

Ordinarily we do not have jurisdiction to review an order

that is not final. Such is the EEOC’s order of remand. But

there are exceptions, and this case is one. See Puerto Rico

Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S.

139, 141 (1993) (holding that an order denying a State’s claim

to Eleventh Amendment immunity is an appealable collateral

order). We proceed to examine the merits of the immunity

asserted by the Governor’s Office.

Amendment XI to the Constitution of the United States,

adopted in 1798, reads: “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.” Almost a century later the Supreme

Court of the United States expanded the extent of the immu-

nity conferred on the States by adding citizens of the same

State to the category of potential plaintiffs disabled from pur-

suing a remedy for a wrong alleged to have been committed

by the State. Hans v. Louisiana, 134 U.S. 1 (1890).

[1] The Eleventh Amendment textually poses no barrier to

a suit by the United States or an agency of the United States

against a State. But in 2002, it was held that the immunity of

a State “extends beyond the literal text of the Eleventh

Amendment.” Fed. Mar. Comm’n v. South Carolina State

Ports Auth., 535 U.S. 743, 754 (2002). The Supreme Court

remarked that “we cannot imagine” that the Framers would

have found it acceptable to compel a State to answer the com-

plaints of private parties that were channeled through a fed-

eral agency. Id. at 760. The dignity of a State would be

compromised. Id. The EEOC is in no better position than the

Federal Maritime Commission when it presents the complaint

of two private persons.

[2] Amendment XIV, however, imposes obligations on the

States. Section 5 of the amendment provides: “The Congress

STATE OF ALASKA v. EEOC 14713

shall have the power to enforce, by appropriate legislation, the

provisions of this article.” The Fourteenth thus trumps the

Eleventh if Congress legislates to enforce the Fourteenth and

the legislation is appropriate. The Supreme Court has set

criteria for legislation to meet if the Supreme Court is to judge

the legislation appropriate. The Court requires that Congress

has “unequivocally expressed its intent to abrogate that immu-

nity” and “acted pursuant to a valid grant of constitutional

authority.” Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 73

(2000).

In 1972, Congress held extensive hearings on discrimina-

tion in the treatment of the ten million or more employees of

state and local governments. On the basis of these hearings,

the relevant committees found extensive gender and racial

discrimination by the States. See H.R. Rep. No. 92-238

(1971), reprinted in 1972 U.S.C.C.A.N. 2137, and S. Rep.

No. 92-415 (1971). The reported instances of discrimination

appeared to be across the board. No special mention, one way

or the other, was made of highly-placed employees serving in

posts close to the governor of a State. As enacted in 1972, the

Equal Employment Opportunity Act based on the hearings

excluded from its protection elected officers and “any person

chosen by such officer to be on such officer’s personal staff”

and employees “on the policymaking level” or serving the

official as “an immediate adviser with respect to the exercise

of the constitutional or legal powers of the office.” 42 U.S.C.

§ 2000e(f) (1972). The legislative history shows an acute

awareness in the Senate of the undesirability of sweeping

such key persons under the general prohibitions of discrimina-

tion. See Gregory v. Ashcroft, 501 U.S. 452, 491-92 (1991)

(Blackmun, J., dissenting).

[3] In 1991, the Equal Employment Opportunity Act of

1972 was amended by GERA, 42 U.S.C. §§ 2000e-16a et seq.

GERA wiped out the existing exemption of members of an

elected official’s personal staff, those serving the official on

a policymaking level, and those serving as immediate advis-

14714 STATE OF ALASKA v. EEOC

ers. GERA was enacted with no findings by Congress as to

state practices of discrimination against employees at this

level of government. Without such findings was GERA a pro-

portionate response to an identified evil? If not, GERA failed

to meet the criteria set by the Supreme Court. See City of

Boerne v. Flores, 521 U.S. 507, 520 (1997).

The EEOC argues that the necessary findings had already

been made in the hearings that preceded enactment of the

Equal Employment Opportunity Act of 1972. The existence

of widespread racial and sexual discrimination in state gov-

ernments had been shown; the policymakers were not distin-

guished as different. If the findings were strong enough to

sustain the Equal Employment Opportunity Act of 1972, they

are, says the EEOC, strong enough to sustain GERA.

Does this piggyback work? The Governor’s Office denies

that it does. One substantial difficulty is that separate provi-

sions of the same act may have different effects on Eleventh

Amendment immunity. Compare Tennessee v. Lane, 541 U.S.

509 (2004) (holding that Title II of the Americans with Dis-

abilities Act (ADA) validly abrogated state immunity as to

cases involving the right of access to the courts) with Bd. of

Trs. of the Univ. of Alabama v. Garrett, 531 U.S. 356 (2001)

(holding that Title I of the ADA did not validly abrogate state

immunity as to the disabled alleging employment discrimina-

tion on account of their disability); see also Garrett, 531 U.S.

at 360 n.1 (“We are not disposed to decide the constitutional

issue whether Title II [of the ADA], which has somewhat dif-

ferent remedial provisions from Title I [of the ADA], is

appropriate legislation under § 5 of the Fourteenth Amend-

ment . . .”). What matters is the effect on Eleventh Amend-

ment immunity that a particular provision has, not whether it

amends or is part of another piece of legislation.

The Supreme Court has held that the Family and Medical

Leave Act (FMLA) validly abrogated Eleventh Amendment

immunity in part because, “of particular importance to the

STATE OF ALASKA v. EEOC 14715

States, the FMLA expressly excludes from coverage state

elected officials, their staffs, and appointed policymakers.”

Nevada Dep’t of Human Res. v. Hibbs, 538 U.S. 721, 739

(2003). Hibbs suggests that GERA’s expansion of the class of

covered employees changes the Eleventh Amendment analy-

sis.

In the course of holding that the Age Discrimination in

Employment Act did not disturb the immunity of Missouri’s

age limitation on judicial office, the Supreme Court observed:

“It is obviously essential to the independence of the

States, and to their peace and tranquility, that their

power to prescribe the qualifications of their own

officers . . . should be exclusive, and free from exter-

nal interference, except so far as plainly provided by

the Constitution of the United States.” Taylor v.

Beckman, 178 U.S. 548, 570-571, 44 L. Ed. 1187, 20

S. Ct. 890 (1900). See also Boyd v. Nebraska ex rel.

Thayer, 143 U.S. 135, 161, 36 L. Ed. 103, 12 S. Ct.

375 (1892) (“Each State has the power to prescribe

the qualifications of its officers and the manner in

which they shall be chosen”).

Gregory, 501 U.S. at 460.

[4] In 1972, Congress thought of state policymakers as dif-

ferent from other state employees, and so Congress specifi-

cally excluded them from coverage. The exclusion is at least

an indication that the hearings did not establish an existing

evil in the selection and retention of a governor’s close asso-

ciates. Nothing in the record shows that a pattern of gender

discrimination as to a governor’s staff, advisers, and policy-

makers existed in 1991 when GERA was enacted. The

absence of such evidence is critical. Very few modern gover-

nors, it may fairly be assumed unless the contrary were

shown, would intentionally discriminate on the basis of gen-

der or race in choosing key advisers, and very few modern

14716 STATE OF ALASKA v. EEOC

governors who did discriminate would be likely to keep their

office. It would be guesswork, unsupported by the record, to

suppose that a widespread pattern of intentional discrimina-

tion on account of gender or race existed among the fifty gov-

ernors of the states as they selected staff assisting them in the

exercise of their office.

[5] No modern governor could run his government without

the assistance of the sort provided in Alaska by the Director

of the Governor’s Office in Anchorage and by the Special

Staff Assistants. Being a governor is not a one-person job.

The governor acts by his policymaking assistants. To treat

these assistants as subject to federal legislation is tantamount

to holding that the highest elected official in a state is bound

by GERA. We do not believe that GERA is a proportionate

response to a widespread evil identified as the predicate of

this legislation. Accordingly, we grant the Governor’s

Office’s appeal and remand to the EEOC with directions to

dismiss the suit.

Remanded to the EEOC with directions to dismiss the suit.

WALLACE, Circuit Judge, concurring:

The dissent reads like a law review outline of relevant law

but it makes an assumption I cannot accept. I therefore concur

in Judge Noonan’s opinion.

In 1972, Congress made findings showing widespread dis-

crimination among state employees. The proposed legislation,

however, was amended to exclude certain high level employ-

ees. What can we know based on this fact?

What we know is that there was a record of discrimination

in state employment generally but that Congress voted not to

STATE OF ALASKA v. EEOC 14717

extend the statute’s coverage to certain high level state

employees.

What the dissent assumes is that this was done for purely

political reasons based on only a few representatives’ con-

cerns about state rights. It is true that two senators asserted

this argument in support of the amendment. But that does not

tell us the intent of hundreds of other lawmakers at the time

of their votes.

This is the problem with basing assumptions on legislative

history. As Justice Scalia has persuasively written:

“[T]he use of legislative history . . . . is much

more likely to produce a false or contrived legisla-

tive intent than a genuine one. The first and most

obvious reason for this is that, with respect to 99.99

percent of the issues of construction reaching the

courts, there is no legislative intent, so that any clues

provided by the legislative history are bound to be

false. Those issues almost invariably involve points

of relative detail, compared with the major sweep of

the statute in question. That a majority of both

houses of Congress (never mind the President, if he

signed rather than vetoed the bill) entertained any

view with regard to such issues is utterly beyond

belief. For a virtual certainty, the majority was bliss-

fully unaware of the existence of the issue, much less

had any preference as to how it should be resolved.”

Antonin Scalia, A Matter of Interpretation: Federal Courts

and the Law 31-32 (Amy Gutmann ed., Princeton University

Press 1997)(emphasis in original).

The upshot is that we have an amended statute that

excluded a certain segment of state employees from its cover-

age. There is no reliable history other than the face of the stat-

ute. Assumptions and speculation aside, there is no acceptable

14718 STATE OF ALASKA v. EEOC

way of knowing the reason each member of Congress voted.

We know only that Congress chose to exclude a specific

group despite general findings.

One may well and should applaud the Fourteenth Amend-

ment as a way to attack state discrimination. But it must do

so within constitutional limits. While the Fourteenth Amend-

ment was an important constitutional amendment, it does not

override the basic constitutional doctrine. The founders were

cynical about governmental powers. The Constitution was not

a rights-granting document (other than the right to patent) but

was to limit government — that is, to protect the people from

government. The Fourteenth Amendment does much, but it

does not trump these fundamental safeguards.

Thus, Congress is not free to set aside “Our Federalism”

beyond what adopted amendments permit. Here, Congress

failed to do what the Constitution requires. Parties supporting

GERA must show that there was a proper record justifying

congressional action. Arguing by pointing to isolated state-

ments in the legislative history that the 1972 exclusion was

based on political concerns—and thereby implying that, those

political concerns aside, Congress could have included high

level state employees—will not do. In 1990, Congress could

have made a record justifying the new expansion of the 1972

Act. This it failed to do. There are limitations even on Con-

gress.

We do not know why Congress excluded high level state

employees in 1972, and the 1990 Congress cannot simply

shortcut its action by reference to the 1972 Act. It needed to

take the time for hearings to develop an appropriate record. It

is not that Congress cannot pass a statute such as GERA; it

is that it must do so in a prescribed manner. Its failure to do

so here requires the conclusion that the constitutional protec-

tions on state sovereign immunity have not been met. For this

reason, I join the result advanced by Judge Noonan.

STATE OF ALASKA v. EEOC 14719

PAEZ, Circuit Judge, dissenting:

I would hold that Congress validly abrogated the States’

Eleventh Amendment immunity to private claims for damages

under the Government Employee Rights Act (“GERA”), 42

U.S.C. § 2000e-16a to 16c. I therefore respectfully dissent.

Because the majority decides the Eleventh Amendment

inquiry on narrow grounds, and because I disagree with its

holding, I proceed to address the two predicate inquiries of

the immunity analysis: congressional intent and constitutional

authority. I turn first to congressional intent.1

I. Congressional Intent

To abrogate the States’ Eleventh Amendment immunity,

Congress must “unequivocally express[ ] its intent to abrogate

that immunity.” Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 73

(2000). In my view, Congress unequivocally expressed such

an intent in GERA.

As the Supreme Court explained in 1976 in Fitzpatrick v.

Bitzer, Title VII of the Civil Rights Act of 1964 expressly

excluded the States from its purview. 427 U.S. 445, 448-49 &

n.2. The 1972 amendments to Title VII,2 however, “made

clear that [Title VII] was being extended to persons aggrieved

by public employers.” Id. at n.2. With regard to the States, the

1972 amendments extended Title VII’s protections to “em-

ployees subject to the civil service laws of a State govern-

ment, governmental agency or political subdivision.” 42

U.S.C. § 2000e(f). Conversely, the amendments excluded:

any person elected to public office in any State or

1

Because the underlying factual dispute is not at issue in this appeal, I

do not quarrel with the majority’s factual summary. I note, however, that

the EEOC has yet to address the merits of Ward’s and Jones’ claims.

2

Equal Employment Opportunity Act of 1972, Pub. L. 92-261, 86 Stat.

103, 42 U.S.C. § 2000e et seq.

14720 STATE OF ALASKA v. EEOC

political subdivision of any State by the qualified

voters thereof, or any person chosen by such officer

to be on such officer’s personal staff, or an appointee

on the policy making level or an immediate adviser

with respect to the exercise of the constitutional or

legal powers of the office.

Id. The 1972 amendments also changed the definition of “re-

spondent” to include government employers,3 and thereby

expressly subjected the States to private suits for damages by

their employees. See Fitzpatrick, 427 U.S. at 448-49 & n.2;

Okruhlik v. Univ. of Ark., 255 F.3d 615, 623 (8th Cir. 2001).

Fitzpatrick therefore concluded that “congressional authori-

zation to sue the State as employer” and “abrogate the immu-

nity conferred by the Eleventh Amendment” was “clearly

present” in the 1972 amendments. 427 U.S. at 451-52 (cita-

tion and internal quotation marks omitted); see also Cerrato

v. S.F. Cmty. Coll. Dist., 26 F.3d 968, 976 (9th Cir. 1994)

(“The Supreme Court has held that Congress has abrogated

the Eleventh Amendment with respect to Title VII claims.”).

The Court also held that Congress validly exercised its

authority under § 5 of the Fourteenth Amendment in abrogat-

ing the States’ Eleventh Amendment immunity, because Title

VII as amended was “ ‘appropriate legislation’ for the pur-

pose of enforcing the provisions of the Fourteenth Amend-

ment.” Fitzpatrick, 427 U.S. at 456.

Fifteen years after Fitzpatrick, Congress enacted GERA as

part of the Civil Rights Act of 1991 (“1991 Act”), extending

Title VII’s protections to the state employees excluded from

the 1972 amendments. The preamble to the 1991 Act states

3

See 42 U.S.C. § 2000e(a) (defining “person” to include “governments,

governmental agencies, [and] political subdivisions”); id. § 2000e(b)

(defining “employer” to include, subject to certain conditions and excep-

tions, “a person engaged in an industry affecting commerce”); id.

§ 2000e(n) (defining “respondent” to include, inter alia, “an employer”).

STATE OF ALASKA v. EEOC 14721

that it is “[a]n Act to amend” Title VII. Pub. L. No. 102-166,

105 Stat. 1071, 1071 (1991) (emphasis added); see also

Okruhlik, 255 F.3d at 623 (“Although the 1991 Act is a sepa-

rate statutory provision, the preamble makes clear that it was

intended to amend Title VII.”). Likewise, the text of GERA

clarifies that it was intended to amend and extend Title VII.

As originally enacted as Section 321 of the 1991 Act, GERA

was titled “Coverage of previously exempt State employees.”

105 Stat. at 1097 (emphasis added); see also 42 U.S.C.

§ 2000e-16c (GERA statutory provisions, as currently codi-

fied, with same title). GERA’s definition of the covered state

employees is also virtually identical to the text of the 1972

amendments that excluded these employees:

[T]his title shall apply with respect to employment of

any individual chosen or appointed, by a person

elected to public office in any State or political sub-

division of any State by the qualified voters thereof

—

(1) to be a member of the elected official’s

personal staff;

(2) to serve the elected official on the

policymaking level; or

(3) to serve the elected official as an imme-

diate advisor with respect to the exercise of

the constitutional or legal powers of the

office.

42 U.S.C. § 2000e-16c(a). As the Tenth Circuit explained in

Board of County Commissioners, Fremont County, Colorado

v. EEOC (“Fremont County”): “In 1991, Congress enacted

GERA, and extended protections against discrimination to

previously exempt state employees. In so doing, Congress

echoed the exclusionary language of Title VII, specifically

extending protections against discrimination . . . to previously

14722 STATE OF ALASKA v. EEOC

exempt high-level state employees.” 405 F.3d 840, 844 (10th

Cir. 2005); see also Brazoria County, Tex. v. EEOC, 391 F.3d

685, 689-90 (5th Cir. 2004) (explaining that the GERA provi-

sion that prohibits discrimination on the basis of race or sex,

42 U.S.C. § 2000e-16b(a)(1), uses language identical to and

expressly incorporates the meaning of the Title VII section

that protects most federal employees, id. § 2000e-16).

For these reasons, at least one of our sister circuits has

determined that GERA should be understood as amending and

extending Title VII. See Fremont County, 405 F.3d at 849

(“GERA was the last step in the sequence of broadening Title

VII to provide protections to state employees . . . . In passing

the 1972 Title VII amendments and continuing through

GERA as part of the Civil Rights Act of 1991, Congress pro-

vided an expanding class of state employees with what Con-

gress found were necessary protections from

discrimination.”).

In light of these considerations, there can be no serious

doubt that Congress expressed its unequivocal intent in

GERA to abrogate the States’ Eleventh Amendment immu-

nity. Because the 1991 Act and GERA effectively amended

Title VII and extended its protections to certain previously

excluded state employees, Congress, in my view, must have

intended GERA to incorporate the 1972 amendments’ express

inclusion of state employers as possible respondents to private

Title VII claims for damages and the Supreme Court’s 1976

holding that the 1972 amendments therefore validly abrogated

the States’ Eleventh Amendment immunity. Cf. Fremont

County, 405 F.3d at 845 (“We assume that Congress knows

the law and legislates in light of federal court precedent.”).

The Eighth Circuit’s decision in Okruhlik strongly supports

this conclusion. In Okruhlik, the court rejected the defendant

state university’s argument that “claims of disparate treatment

and disparate impact discrimination under Title VII . . . are

barred by the Eleventh Amendment . . . because [Congress]

STATE OF ALASKA v. EEOC 14723

did not make an unmistakably clear expression of its intent to

[abrogate the States’ Eleventh Amendment immunity] in the

1972 Act or in the 1991 Act.” 255 F.3d at 621-22. As the

Eighth Circuit explained: “Subsequent to Fitzpatrick, this

court has consistently held that the 1972 and 1991 Acts abro-

gated the Eleventh Amendment. Other circuits have reached

the same conclusion based on Fitzpatrick.” Id. at 622 (cita-

tions omitted) (citing, inter alia, this court’s holding in Cer-

rato).

Although the Eighth Circuit did not specifically address the

GERA provisions of the 1991 Act, it held that Congress mani-

fested an unequivocal intent to abrogate the States’ Eleventh

Amendment immunity as to other provisions of the Act. In

rejecting the Eleventh Amendment challenge, the court did so,

not because these other provisions standing alone expressly

provided that the States were subject to private claims for

damages, but because Congress intended these provisions to

amend and therefore be read in conjunction with Title VII and

the 1972 amendments. See Okruhlik, 255 F.3d at 623

(“Although the 1991 amendments do not define ‘respondent,’

the definition of respondent in Title VII includes state

employers.”). Likewise here, reading GERA and Title VII in

pari materia, Congress unequivocally expressed its intent to

abrogate the States’ Eleventh Amendment immunity: GERA

extends Title VII to allow previously exempt state employees

to pursue private claims for damages against their employers,

and Title VII expressly provides that state employers can be

defendants to such claims and therefore abrogates the States’

sovereign immunity.

Even examining GERA independent of Title VII, the text

of the statute standing alone unequivocally establishes that

Congress intended for the States to be defendants to private

claims for damages. GERA provides for compensatory but

not punitive damages as a remedy for covered “State employ-

ees” intentionally discriminated against by any “personnel

actions affecting [them].” 42 U.S.C. § 2000e-16b(a)-(b). In

14724 STATE OF ALASKA v. EEOC

theory, there are two possible defendants to such claims: (1)

the States; and (2) the individual state agents who engaged in

the discriminatory behavior. At the time Congress enacted

GERA, however, all but one of the Circuits to address the

issue had held that under Title VII’s definition of “employer,”

individual defendants could not be held liable for damages.4

Compare Busby v. City of Orlando, 931 F.2d 764, 772 (11th

Cir. 1991) (“Individual capacity suits under Title VII are . . .

inappropriate.”), Padway v. Palches, 665 F.2d 965, 968 (9th

Cir. 1982) (“The individual defendants cannot be held liable

for back pay.”), Clanton v. Orleans Parish Sch. Bd., 649 F.2d

1084, 1099 (5th Cir. 1981) (same), and Monell v. Dep’t of

Soc. Servs., 532 F.2d 259, 261 (2d Cir. 1976), rev’d on other

grounds, 436 U.S. 658 (1978) (same), with Paroline v. Unisys

Corp., 879 F.2d 100, 104 (4th Cir. 1989), vacated in part on

other grounds, 900 F.2d 27 (4th Cir. 1990) (en banc) (holding

the opposite).

Although GERA does not define “employer,” Congress

must have intended, given this significant circuit court prece-

dent and the similarities between GERA and Title VII, for

there to be no individual liability under GERA either. Conse-

quently, the only possible defendants to private claims for

damages under GERA are the States. GERA’s damages rem-

edy would therefore be a nullity if Congress had not intended

to abrogate the States’ Eleventh Amendment immunity,

because covered state employees could not file claims for

damages against anyone. This limitation on potential defen-

dants distinguishes the present case from Dellmuth v. Muth,

491 U.S. 223 (1989), where the Supreme Court held that Con-

gress did not express its unequivocal intent in the Education

of the Handicapped Act to abrogate the States’ Eleventh

Amendment immunity. There, the Court held that in light of

the statutory text, it was only a “permissible inference” that

4

The decisions prior to 1991 address only back pay because compensa-

tory damages were unavailable prior to the 1991 Act. See Miller v. Max-

well’s Int’l Inc., 991 F.2d 583, 587 n.2 (9th Cir. 1993).

STATE OF ALASKA v. EEOC 14725

States would be defendants to private claims for damages. Id.

at 232 (emphasis added). Here, to the contrary, it is a neces-

sary inference that States would be defendants to private

claims for damages, because States are the only possible

defendants to such claims. It would be absurd to imagine that

when Congress expressly provided for these claims, it did not

intend for there to be a responsible party against whom relief

could be awarded.

For all of the above reasons, I would hold that when Con-

gress enacted GERA as part of the 1991 Act, it unequivocally

intended to abrogate the States’ Eleventh Amendment immu-

nity.

II. Valid Exercise of § 5 Power

To abrogate the States’ Eleventh Amendment immunity,

Congress must also “act[ ] pursuant to a valid grant of consti-

tutional authority.” See Tennessee v. Lane, 541 U.S. 509, 517

(2004) (internal quotation marks omitted). As the Supreme

Court has explained, Congress “can abrogate a State’s sover-

eign immunity when it does so pursuant to a valid exercise of

its power under § 5 of the Fourteenth Amendment to enforce

the substantive guarantees of that Amendment.” Id. at 518.

Further, Congress “must have a wide berth in devising appro-

priate remedial and preventative measures for unconstitutional

actions” that violate the Fourteenth Amendment. Id. at 520;

see also Kimel, 528 U.S. at 80-81 (“It is for Congress in the

first instance to determine whether and what legislation is

needed to secure the guarantees of the Fourteenth Amend-

ment, and its conclusions are entitled to much deference.”

(alteration and internal quotation marks omitted)).

Congress cannot, however, substantively redefine Four-

teenth Amendment rights in exercising its § 5 authority. See

Kimel, 529 U.S. at 81; see also Lane, 541 U.S. at 520

(“Congress must have wide latitude in determining where [the

line between remedial legislation and substantive redefinition

14726 STATE OF ALASKA v. EEOC

of Fourteenth Amendment rights] lies. But . . . the distinction

exists and must be observed.” (citation and internal quotation

marks omitted)). The Court has set forth a test to observe this

distinction: “Section 5 legislation is valid if it exhibits ‘a con-

gruence and proportionality between the injury to be pre-

vented or remedied and the means adopted to that end.’ ”

Lane, 541 U.S. at 520 (quoting City of Boerne v. Flores, 521

U.S. 507, 520 (1997)). In turn, the Court applies a three-step

analysis to determine whether legislation is “congruent and

proportional.”

The first step of the analysis is “to identify the constitu-

tional right or rights that Congress sought to enforce when it

enacted” the legislation. Id. at 522; see also Bd. of Trs. of

Univ. of Ala. v. Garrett, 531 U.S. 356, 365 (2001) (“The first

step in applying these now familiar principles is to identify

with some precision the scope of the constitutional right at

issue.”). Here, in enacting the relevant GERA provisions,

Congress sought to exercise its § 5 power to protect the rights

of certain state employees under the Equal Protection Clause

of the Fourteenth Amendment to be free from discrimination

on the basis of race or sex.5

The second step in the analysis is to determine whether the

legislation validly enforces these constitutional rights, “a

question that must be judged with reference to the historical

experience which [the legislation] reflects.” Lane, 541 U.S. at

523 (internal quotation marks omitted). As the Court

explained in Garrett, “[o]nce we have determined the metes

and bounds of the constitutional right in question, we examine

whether Congress identified a history and pattern of unconsti-

tutional . . . discrimination.” 531 U.S. at 368. In enacting

GERA to provide a remedy to state employees who experi-

5

Although GERA also protects against discrimination on the basis of

religion, age, and disability, we do not address these provisions here, as

we must identify with “some precision,” Garrett, 531 U.S. at 365 (empha-

sis added), the constitutional rights at issue.

STATE OF ALASKA v. EEOC 14727

ence race and gender discrimination, Congress did not need

extensive evidence of such discrimination, because race and

gender-based classifications are subject to strict and height-

ened scrutiny respectively. See Lane, 541 U.S. at 528-29

(“We explained that because the [Family Medical Leave Act

(‘FMLA’)] was targeted at sex-based classifications, which

are subject to a heightened standard of judicial scrutiny, ‘it

was easier for Congress to show a pattern of state constitu-

tional violations’ than in Garrett or Kimel, both of which con-

cerned legislation that targeted classifications subject to

rational-basis review.” (quoting Nev. Dep’t of Human Res. v.

Hibbs, 538 U.S. 721, 735-37 (2003))). Indeed, in holding that

there was not sufficient evidence of age-based discrimination

for Congress to validly abrogate the States’ sovereign immu-

nity under the Age Discrimination in Employment Act

(“ADEA”), Kimel emphasized that the right at issue did not

involve race or gender-based classifications:

Age classifications, unlike governmental conduct

based on race or gender, cannot be characterized as

so seldom relevant to the achievement of any legiti-

mate state interest that laws grounded in such con-

siderations are deemed to reflect prejudice and

antipathy. Older 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.

528 U.S. at 83 (emphases added) (citation and internal quota-

tions marks omitted).

In light of this standard, I would hold that the evidence

before Congress was more than sufficient for Congress to

exercise its § 5 authority to enact GERA and abrogate the

States’ Eleventh Amendment immunity. As discussed above,

the 1991 Act and GERA extended Title VII’s protections to

certain previously excluded state employees. In enacting

GERA, Congress was therefore entitled to rely on the exten-

14728 STATE OF ALASKA v. EEOC

sive evidence from when it enacted the 1972 amendments of

widespread employment discrimination by the States on the

basis of race and sex. See Fremont County, 405 F.3d at 848

(“[B]ecause GERA’s language concerning previously exempt

state employees is identical to that in Title VII’s exclusion,

we may accord substantial weight to the legislative history of

the cognate Title VII provision in construing [GERA].”).

Specifically, in assessing the evidence before it in 1972,

Congress found that “widespread discrimination against

minorities exists in State and local government employment,

and that the existence of this discrimination is perpetuated by

the presence of both institutional and overt discriminatory

practices.” H.R. Rep. No. 92-238, at 19 (1971), reprinted in

1972 U.S.C.C.A.N. 2137, 2152. Congress also found that

“employment discrimination in State and local governments

is more pervasive than in the private sector,” and explained

that:

The expansion of Title VII coverage to State and

local government employment is firmly embodied in

the principles of the Constitution of the United

States. The Constitution has recognized that it is

inimical to the democratic form of government to

allow the existence of discrimination in those

bureaucratic systems which most directly affect the

daily interactions of this Nation’s citizens.

Id. at 2152, 2154. As the Tenth Circuit therefore concluded in

Fremont County, rejecting a Tenth Amendment challenge to

GERA: “In passing the 1972 Title VII amendments and con-

tinuing through GERA as part of the Civil Rights Act of 1991,

Congress provided an expanding class of state employees

with what Congress found were necessary protections from

discrimination.” 405 F.3d at 849 (emphasis added).

Supreme Court decisions further recognize that race and

gender-based employment discrimination by the States per-

STATE OF ALASKA v. EEOC 14729

sisted at the time Congress enacted GERA. As the Court

explained in Hibbs in 2003: “It can hardly be doubted that . . .

women still face pervasive . . . discrimination . . . in the job

market. According to evidence that was before Congress

when it enacted the FMLA [in 1993], States continue to rely

on invalid gender stereotypes in the employment context

. . . .” 538 U.S. at 730 (alteration, citation, and internal quota-

tion marks omitted). The Court has said the same of work-

place discrimination on the basis of race. See Kimel, 528 U.S.

at 83 (“[T]hose who suffer discrimination on the basis of race

. . . have . . . been subjected to a history of purposeful unequal

treatment.” (internal quotation marks omitted)).

The majority concludes, however, that this evidence of race

and gender-based discrimination by the States was insuffi-

cient for Congress to validly exercise its § 5 power in enact-

ing GERA. None of the majority’s reasons are convincing. As

an initial matter, insofar as the majority suggests that GERA’s

extension of Title VII’s protections to elected state officials

and their staffs is bad policy, such policy considerations are

of course irrelevant to our legal inquiry. It was for Congress

alone to decide whether these employees should be protected

under Title VII.

The majority also infers from Congress’ decision to

exclude from the 1972 amendments the state employees now

covered by GERA, that the 1972 “hearings did not establish

an existing evil” of state discrimination against these employ-

ees. This inference, however, is contrary to the congressional

record, which suggests that Congress exempted these state

employees because certain Senators were concerned about

intruding on state rights, not because there was an absence of

evidence of discrimination against these employees. As the

Tenth Circuit explained in Fremont County:

In the floor debates on the extension of Title VII pro-

tections to state employees, Senator Ervin introduced

an amendment to exempt those state employees who

14730 STATE OF ALASKA v. EEOC

were chosen by elected officials or who were close

personal advisors to elected officials. In the ensuing

debates Senator Allen decried federal government

encroachment on the powers of local government

that would result. To accommodate these Tenth

Amendment concerns, when Congress extended

Title VII protections to state employees in 1972 it

exempted high-level state employees in recognition

of the federalism concerns encompassed in their

inclusion. It similarly rejected coverage for congres-

sional employees at that time.

405 F.3d at 848-49 (citations and footnotes omitted) (citing

118 Cong. Rec. 1677, 4096-97, 4483, 4494 (1972)).6

Indeed, as the majority recognizes, when Congress found

extensive evidence of race and gender-based discrimination

by the States in 1972, “the reported instances of discrimina-

tion appeared to be across the board.” In holding that this

widespread evidence of workplace discrimination by the

States is not sufficient evidence of discrimination against the

particular state employees covered by GERA, the majority

parses it more finely than the Supreme Court and our sister

circuits have found appropriate. Notably, although the

Supreme Court has generally required evidence of constitu-

tional violations by the States, not just private parties, it has

otherwise found evidence of a wide variety of constitutional

violations relevant to the Eleventh Amendment inquiry. See

Lane, 541 U.S. at 527 n.16 (“[O]ur cases have recognized that

evidence of constitutional violations on the part of nonstate

governmental actors is relevant to the § 5 inquiry.” (emphasis

added)); id. (noting that “the evidence before the Congress

6

See also 118 Cong. Rec. 4494 (statement of Sen. Allen) (“If it is so

good for the States, why should it not be equally good for [congressional]

employees . . . . I do not feel that the law should be applicable to the

States, . . . this is just another instance of the further encroachment by the

Federal Government on the powers of local government.”).

STATE OF ALASKA v. EEOC 14731

that enacted the FMLA,” which Hibbs determined was suffi-

cient to abrogate Eleventh Amendment immunity, “related

primarily to the practices of private-sector employers and the

Federal Government” and “in fact contained little specific evi-

dence of a pattern of unconstitutional discrimination on the

part of the States”).

As the Eighth Circuit has explained, the Supreme Court

“has generally disallowed remedial legislation founded in

Congress’s power under Section 5 of the Fourteenth Amend-

ment in instances where Congress failed to establish and iden-

tify the general problem that the legislation was intended to

ameliorate.” Maitland v. Univ. of Minn., 260 F.3d 959, 965

n.5 (8th Cir. 2001) (discussing City of Boerne, 521 U.S. at

530-32, and Kimel, 528 U.S. at 83-86). Conversely, at least

where, as here, the remedial legislation protects against dis-

crimination on the basis of classifications subject to height-

ened or strict scrutiny, and the evidence before Congress

established a history of discrimination by the States on the

basis of these classifications, the Court has not invalidated

such legislation on the ground that the evidence was not

exactly or explicitly tailored to the harms that Congress

sought to remedy.

Thus, our sister circuits have consistently rejected Eleventh

Amendment challenges to specific Title VII protections even

where the 1972 findings did not explicitly address the exact

type of discrimination at issue. The Eighth and Tenth Circuits,

for instance, have upheld Title VII retaliation claims against

Eleventh Amendment challenges even though “Congress did

not specifically note in the legislative record a widespread

pattern of retaliatory discharge by the states.” Warren v. Pre-

jean, 301 F.3d 893, 899 (8th Cir. 2002); see also Crumpacker

v. Kans. Dep’t of Human Res., 338 F.3d 1163, 1170 (10th Cir.

2003). As the Tenth Circuit explained:

The State argues that, while Congress may have

identified a pattern of unconstitutional gender dis-

14732 STATE OF ALASKA v. EEOC

crimination by the states, it failed to identify a pat-

tern of retaliatory conduct by the states. This court,

however, need not parse the legislative findings with

regard to Title VII as finely as the State suggests. . . .

To properly enact legislation under its § 5 authority,

Congress need not identify a pattern of each form of

gender discrimination in the workplace by the states.

Rather, Congress need only identify a history and

pattern of unconstitutional behavior on the part of

states. Here, Congress clearly identified a pattern of

unconstitutional employment discrimination on the

basis of gender by the states.

Crumpacker, 338 F.3d at 1170 (alteration, citations, and inter-

nal quotation marks omitted).

Similarly, in Maitland, the Eighth Circuit rejected the

defendants’ contention “that Congress failed to identify a his-

tory and pattern of unconstitutional employment discrimina-

tion by the States against men when it enacted and amended

Title VII.” 260 F.3d at 964 (emphasis added). As the court

concluded, the Constitution does not require “a parsing of the

legislative findings or review of the ‘proportionality and con-

gruity’ of remedies to determine whether the Eleventh

Amendment bar also has been removed with respect to Title

VII actions by men.” Id. at 965. Applying the reasoning of

these decisions here, the evidence before Congress of wide-

spread race and gender-based employment discrimination by

the States was sufficient to support its enactment of GERA,

because Congress did not need to make explicit findings with

regard to the particular subset of state employees covered by

GERA.

In sum, given the deference we owe to Congress when it

exercises its § 5 authority, it was entitled in enacting GERA

to rely on the extensive evidence from 1972 of widespread

race and gender-based discrimination by the States against

their employees. Further, because Congress’ 1972 decision to

STATE OF ALASKA v. EEOC 14733

exempt the state employees now covered by GERA appears

to have been based not on a lack of evidence of discrimination

but on political considerations, and because neither the

Supreme Court nor our sister circuits have parsed more finely

evidence of state constitutional violations, we must infer that

the across the board findings of employment discrimination

by the States encompassed these state employees.7

Finally, the majority contends that even if the evidence of

discrimination was sufficient as of 1972, “[n]othing in the

record shows that a pattern of gender discrimination as to a

governor’s staff, advisers, and policymakers existed in 1991

when GERA was enacted.” As discussed above, see supra at

14728-29, however, Supreme Court decisions recognize that

the discrimination Congress found in 1972 persisted at the

time Congress enacted GERA. See also H.R. Rep. No. 102-

40(II), at 5 n.4 (1991), reprinted in 1991 U.S.C.C.A.N. 694,

698 (Congress declaring that, “[i]n support of the 1972

amendments to extend Title VII state and local governments,”

it had “reaffirmed that employment discrimination was perva-

sive, complex and rooted in ‘employment systems’ and ‘vari-

ous institutional devices.’ ”); 1991 Act, Pub. L. No. 102-166,

105 Stat. at 1071 (Congress stating that “additional remedies

under Federal law are needed to deter unlawful harassment

and intentional discrimination in the workplace”).

The third and final step in the “congruent and proportional”

analysis is to determine whether the § 5 legislation “is an

appropriate response to [the] history and pattern of unequal

7

The majority argues that GERA cannot “piggyback” on Congress’

findings from the 1972 amendments. The historical record does not sup-

port this colorful characterization of the EEOC’s position. The EEOC con-

tends that we should infer that Congress’ finding of widespread

employment discrimination by the States in 1972 encompassed the subset

of state employees covered by GERA. I agree with the EEOC that when

Congress changed its position in 1991 and decided as a policy matter to

cover these previously excluded state employees, it was, in light of the

prior record, entitled to do so.

14734 STATE OF ALASKA v. EEOC

treatment,” Lane, 541 U.S. at 530—i.e. whether the “rights

and remedies created by the [legislation] against the States”

are congruent and proportional to the constitutional violations.

Garrett, 531 U.S. at 372.

I would hold that GERA is an appropriate response to the

evidence of employment discrimination by the States. Most

importantly, GERA provides for money damages only against

state employers who “engaged in unlawful intentional

discrimination”— conduct that also directly violates the Equal

Protection Clause. See Okruhlik, 255 F.3d at 626 (“[T]he ele-

ments of a claim of intentional discrimination are essentially

the same under Title VII and the Constitution.”). Thus, con-

trary to the legislation at issue in cases such as Garrett and

Hibbs, GERA does not require the States to provide any sub-

stantive entitlements to their employees beyond what the Con-

stitution requires.8 Cf. Garrett, 531 U.S. at 361 (“[T]he Act

requires employers to make reasonable accommodations to

[disabled individuals] . . . .” (alteration and internal quotation

marks omitted)).

GERA also imposes other reasonable limits on damages.

By incorporating 42 U.S.C. § 1981a(a), GERA provides the

same damage remedies to the covered state employees that

§ 2000e-16 provides to federal employees, instead of the more

expansive remedies available to private sector employees.9

8

For this reason, although Hibbs found that the FMLA was appropriate

legislation in part because it exempted those state employees who are cov-

ered under GERA, the majority’s reliance on Hibbs is misplaced. GERA

is appropriate legislation even though it covers these employees, because,

unlike the FMLA, it subjects state employers to financial burdens only

when the harm suffered by the employee rises to the level of a constitu-

tional violation.

9

Congress also provides similar remedies to federal employees who are

similarly situated to the state employees protected by GERA. Specifically,

presidential and congressional employees, who were originally covered

directly under GERA, are now covered by the Presidential and Executive

Office Accountability Act, 3 U.S.C. § 401 et seq., and the Congressional

Accountability Act of 1995, 2 U.S.C. § 1301 et seq.

STATE OF ALASKA v. EEOC 14735

Specifically, GERA precludes punitive damages and caps

compensatory damages at between $50,000 and $300,000,

depending on the size of the state employer. See 42 U.S.C.

§ 1981a(b)(1), (b)(3). Also, prior to acting on a complaint by

a state employee, the EEOC must refer the complaint to any

state or local fair employment practices agency authorized to

grant or seek relief from the alleged discrimination. Id.

§ 2000e-16c(b)(2) (incorporating § 2000e-5(d)). Upon request

by the state or local agency, the EEOC must then provide the

agency “a reasonable time, but not less than sixty days . . . to

act under such State or local law to remedy the practice

alleged.”10 Id. § 2000e-5(d).

Accordingly, GERA is congruent and proportional to the

evidence of the States’ violations of its employees’ Fourteenth

Amendment rights to be free from discrimination on the basis

of race or sex. See Lane, 541 U.S. at 431 (“Congress was jus-

tified in concluding that th[e] difficult and intractable problem

[of disability discrimination] warranted added prophylactic

measures . . . . The remedy Congress chose is nevertheless a

limited one.” (alteration and internal quotation marks omit-

ted)); Hibbs, 538 U.S. at 738 (“We also find significant the

many other limitations that Congress placed on the scope of

[the FMLA].”).

***

For all of the above reasons, I would hold that Congress

explicitly abrogated the States’ Eleventh Amendment immu-

nity when it enacted GERA, and that the legislation is congru-

ent and proportional to the racial and gender discrimination

that Congress sought to remedy. Accordingly, I would reject

10

The EEOC followed these requirements in the instant case by trans-

mitting copies of Ward’s and Jones’ complaints to the Alaska State Com-

mission for Human Rights, which “acknowledge[d] receipt of the

referenced charge[s]” but “indicate[d] [its] intention not to initially inves-

tigate the[m].”

14736 STATE OF ALASKA v. EEOC

Alaska’s Eleventh Amendment challenge, and allow the ALJ

to rule on the merits of the complainants’ claims.