January 11, 2013
The issue of “suspect classifications” has become something of a hot topic with the Supreme Court’s agreeing to review U.S. v. Windsor, a case challenging the constitutionality of the federal Defense of Marriage Act (DOMA).
This is because of the Second Circuit’s Windsor ruling that extended “quasi-suspect classification” protection to LGBT individuals, and because such classifications subject any laws – state or federal – to markedly higher judicial scrutiny when they are challenged in court.
Thus, should the Supreme Court uphold the Second Circuit’s ruling, state and federal laws that discriminate on the basis of sexual orientation would face a high risk of invalidation by operation of the Equal Protection Clause of the Fourteenth Amendment (and applied to the federal government through the Fifth).
The authority to determine which groups are entitled to “suspect classification” and the heightened constitutional protections along with it is solely vested in the judiciary, a principle that was reiterated 13 years ago today, with the Supreme Court’s Kimel v. Florida Board of Regents decision.
Kimel held that Congress may not, through its Fourteenth Amendment enforcement powers, abrogate state sovereign immunity under the Eleventh Amendment to allow civil suits by private individuals for age discrimination.
That’s a lot to digest at once, so let’s break it down.
Congress enacted the Age Discrimination in Employment Act (ADEA) in 1967, which, among other things, forbade employers from discriminating against employees (over the age of 40) based on their age; “employers” under the act included state governments.
As part of its enforcement provisions, the ADEA allowed civil suits against employers by private individuals who were victims of employment discrimination, even if their employers were states.
The Eleventh Amendment (and subsequent case law interpreting it) prohibits private parties from suing “one of the United States” without the state’s consent – a protection otherwise known as sovereign immunity.
The Supreme Court held in 1976’s Fitzpatrick v. Bitzer that Congress may override state sovereign immunity through the Fourteenth Amendment’s Section 5, which allows Congress to enforce the Fourteenth Amendment (including the Equal Protection Clause) through “appropriate legislation.”
However, the Court later ruled in 1997’s City of Boerne v. Flores that such Section 5 powers were limited to legislation that was “congruent and proportional” to the Supreme Court’s own interpretation of the Equal Protection Clause.
In other words, Congress couldn’t grant more rights under the Equal Protection clause (enforceable against the individual states) than the Court already had.
The last piece of the Kimel puzzle is 1991’s Gregory v. Ashcroft, which held that age is not a suspect classification under the Equal Protection clause; instead, laws that discriminate on the basis of age are only subject to “rational basis.”
“Rational basis” – the most lax level of judicial scrutiny – will only invalidate discriminatory government action if there is no conceivable “legitimate” reason behind an action that is not “rationally related” to the action itself.
Justice Sandra Day O’Connor, in writing for the Kimel majority, noted that the ADEA prohibits all discriminatory state action based on age unless there is a “bona fide occupational qualification;” although this standard imposed by the ADEA wasn’t perhaps as high as “strict scrutiny,” it certainly wasn’t anywhere near as permissive as rational basis.
According to the Court, these substantive requirements imposed by the ADEA on state and local governments “are disproportionate to any unconstitutional conduct that conceivably could be targeted by the Act.”
As such, the Court struck down the provisions of the ADEA that allowed private actions against individual states as not “appropriate legislation” under Section 5 of the Fourteenth Amendment.
However, the ADEA still allows private suits against private employers for age discrimination, but, in the Court’s own words, “[s]tates may discriminate on the basis of age without offending the Fourteenth Amendment if the age classification in question is rationally related to a legitimate state interest.”
So, while there are undoubtedly benefits to working for a state or local government over a private employer, robust protections from age discrimination don’t appear to be one of them.