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Our discrimination attorneys have blogged extensively on what constitutes discrimination under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act (“ADA”),  the Age Discrimination in Employment Act of 1967 (“ADEA”), etc. (Best Law Read: You Don’t Need All Evidence To Start A Discrimination Case; How Do You Win A Wrongful Termination Claim?).

However, meeting the elements of a discrimination claim is not always enough. There are also procedural concerns that can affect, or even bar, one’s ability to bring a claim in court. For example, the Equal Employment Opportunity Commission (“EEOC”) covers businesses/private employers with 15 or more employees. Meaning, if you work at a business with only 14 employees, you cannot bring a claim through the EEOC (good news, though: the Ohio Civil Rights Commission only requires five employees). (Best Law Read: It’s Bad To File With The EEOC Without A Lawyer; Read This Before Filing An EEOC Charge).

A particularly important procedural concern, and the topic of today’s post, has to do with the State as an employer. The Eleventh Amendment of the Constitution states that “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 of Subjects of any Foreign State.” In simpler terms: Eleventh Amendment Immunity prohibits the federal courts from hearing cases against a State.

What does this have to do with public universities? Because public colleges and universities are funded and controlled by the state government, they are considered agencies of the State. Eleventh Amendment Immunity applies not only to the State itself, but also extends to “any state agency or other political entity that is deemed the ‘alter ego’ or an ‘arm’ of the State.” Vogt v. Bd. Of Comm’rs of Orleans Levee Dist., 294 F.3d 684, 688-89 (5th Cir. 2002).

So, can public university employees bring employment discrimination claims against their employer?

Best Employment Discrimination Lawyer Answer: This question was recently discussed by the United States District Court for the Eastern District of Texas in King v. Texas A&M Engineering Extension Service, No. 4:21-CV-1005, 2022 WL 2328853 (E.D. Tex. June 28, 2022).

In this case, plaintiffs Kenneth King and Ben Kennedy brought an employment discrimination case against Texas A&M Engineering Extension Service for terminating their employments while they were both recovering from medical procedures. The plaintiffs alleged violations of the ADA, ADEA, and Family and Medical Leave Act (“FMLA”). Texas A&M filed a motion to dismiss King and Kennedy’s claims, arguing their claims were barred by Eleventh Amendment Immunity. The Court acknowledged the principal we discussed above: Texas A&M, as a public university, enjoys the same Eleventh Amendment Immunity as the State of Texas. The Court also discussed two instances where Eleventh Amendment Immunity can be circumvented, and a federal court can hear the alleged claims.

First, federal courts can hear claims against the State if Congress has “validly abrogated the State’s sovereign immunity.” The United States Supreme Court decided in Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996), that Congress has found authority to abrogate the State’s sovereign immunity under two constitutional provisions: the Fourteenth Amendment and the Interstate Commerce Clause.

Second, federal courts can hear claims the State if the State has voluntarily waived sovereign immunity and consented to suit. The bar for a State’s voluntary waiver of immunity is relatively high: generally, the courts will not read voluntarily waiver unless it is stated in no uncertain terms or the text of a state law or act leaves room for no other reasonable interpretation but the State waiving immunity. The clearest way for a State to consent to suit or waive immunity is by initiating or participating in litigation itself.

In our current case, the district court held that the plaintiffs failed to show that Texas A&M waived sovereign immunity as to all three claims. That left the question as to whether Congress validly abrogated the States’ sovereign immunity when enacting the ADEA, ADA, and FMLA.

The district court held that Congress did not validly abrogate the States’ sovereign immunity in the ADEA, reaffirming the holding in Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 91 (2000), which came to the same conclusion.

The district court’s evaluation of the FMLA was a little less simple. The court cited Bryant v. Tex. Dep’t of Aging and Disability Servs., 781 F.3d 764, 769 (5th Cir. 2015), which held that Congress validly abrogated the States’ sovereign immunity when it comes to the FMLA’s “family-care provision,” but not the “self-care provision.” Here, King and Kennedy used FMLA for surgeries relating to their own serious health conditions, which falls within the self-care provision and thus does not abrogate sovereign immunity.

Lastly, the district court evaluated whether Congress abrogated sovereign immunity in the ADA. The court read Plaintiffs’ claim to fall under Title I of the ADA because courts have previously held that Title II does not create a cause of action for employment discrimination. This distinction is paramount: the Supreme Court has held that Congress did not abrogate State sovereign immunity under Title I of the ADA. Bd. of Trs. Of Ala. V. Garrett, 531 U.S. 356, 374 (2001).

How do I sue my employer for discriminating against me at work?

Best Employment Discrimination Attorney Answer: While bringing suit in federal court did not work out for King and Kennedy, that does not mean it is impossible to bring discrimination claims against your public university employer. If you have been discriminated against or wrongfully terminated by a public university or state employer, call the right attorney at Spitz, the Employee’s Law Firm to schedule a free and confidential consultation. (Read: What is the Spitz No Fee Guarantee?)


This employment law website is an advertisement. The materials available at the top of this page and at this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “How do I file a charge against my job for wrongful termination”, “What can I do if I was wrongly fired by my racist manager” “My boss discriminated against me because I’m black and older” or “I was fired for taking FMLA leave”, it would be best for to contact an Ohio attorney to obtain advice with respect to any particular employment law issue or problem. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of The Spitz Law Firm, Brian Spitz, or any individual attorney.

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