Los Angeles Times - Thursday, October 12, 2000
David G. Savage, Times Staff Writer

A nursing supervisor who was demoted after she underwent treatment for breast cancer filed such a bias suit three years ago against her employer, the University of Alabama-Birmingham Hospital.

But the high court took up her case to decide a much broader question: Are the nation's 5 million state employees protected by the Americans With Disabilities Act of 1990?

This landmark measure extended anti-bias protections to more than 43 million Americans, including those who are blind, deaf, in a wheelchair or mentally retarded. The act also has been interpreted to protect people with chronic diseases and impairments, from cancer and HIV infection to asthma and epilepsy.

Generally, the law requires that employers and public buildings make reasonable accommodations to people with disabilities. But this widely praised civil rights measure has run into a states' rights roadblock.

Lawyers Argue That State Is 'Sovereign'

Alabama's lawyers insisted that their state is "sovereign" and, therefore, that Congress cannot subject it to damage suits from individuals, even to "advance a commendable objective" such as ending bias against those with disabilities. That is so, the state argues, because the U.S. Constitution "limits the authority of one sovereign to regulate another sovereign."

Alabama's lawyers knew that their state "sovereignty" claim might be well received by the high court's conservative majority. Four years ago, Chief Justice William H. Rehnquist declared that the states had a "sovereign immunity" from certain federal lawsuits. That 5-4 ruling came in a case in which Native American tribes were suing Florida's governor over gambling casinos.

Last year, the court extended that principle to shield the states from being sued for infringing patents and trademarks as well as for failing to pay their workers overtime wages required by federal law.

In January, the court shielded the states from being sued by workers who claim age discrimination. This affects not just state agency workers but also public college employees, state police and highway workers. In California, where school districts are seen as branches of state government, the exclusion also extends to teachers and other school employees.

Dissenters Invoke the Constitution

All these decisions came on 5-4 votes, in which Rehnquist was joined by Justices Sandra Day O'Connor, Antonin Scalia, Anthony M. Kennedy and Clarence Thomas.

The dissenters have pointed out that the Constitution says nothing about state sovereignty. Indeed, it says "the Laws of the United States . . . shall be the supreme Law of the Land, anything in the Constitution or Laws of any state to the contrary notwithstanding."

Rehnquist and Kennedy have cited the 11th Amendment as the source of the states' shield. It says: "The Judicial Power of the United States shall not be construed to extend to any suit [brought] against one of the United States by citizens of another state." But Justice John Paul Stevens often has noted that this amendment does not shield a state from being sued by a citizen of that state.

Nonetheless, Rehnquist and Kennedy have said that the 11th Amendment implicitly contains the principle of state sovereign immunity.

The case (University of Alabama vs. Garrett, 99-1240) has drawn an unusual amount of attention. Dozens of briefs from disability rights groups, cancer survivors and those with HIV have urged the court to uphold the federal law when state agencies and public colleges are being sued.

Seven states filed briefs supporting Alabama, while 14 other states filed a separate brief arguing that state employees should be protected by the federal law. (California was in neither group.) The courtroom and the hallways outside were filled by people in wheelchairs who came to listen to the debate.

But in the oral argument, the justices focused on Congress' power to enforce civil rights laws.

If, for example, the Alabama hospital had demoted an employee because she was black, the state could be sued, all agreed. Racial discrimination violates the Constitution's guarantee of "equal protection of the laws," and Congress can subject violators to lawsuits.

In January, however, the court ruled that Congress does not have the power to subject states to lawsuits for age bias because this sort of discrimination is not unconstitutional. For example, states may force police officers to retire at age 60.

So, what about discrimination based on someone's mental or physical disability?

Justice Scalia commented Wednesday that the Constitution does not require the states to make "special accommodations for the handicapped."

Jeffrey S. Sutton, the lawyer for Alabama and a former clerk to Scalia, agreed, saying that Congress cannot "impose extra-constitutional duties on the states."

Justice Stephen G. Breyer quickly objected: "Why isn't it a constitutional violation when states are discriminating against handicapped people?" He noted that congressional panels had concluded that the states had a history of mistreating people with mental and physical impairments. He cited "forced sterilizations" of mentally impaired people as one example.

Sutton said that this discrimination was in the distant past. All states now have laws protecting those with disabilities. "This was not needed," he said of the federal law.

Souter Questions Justices' Role on Issue

But Justice David H. Souter wondered why judges should play the role of "second guessers." If Congress was convinced that state agencies were discriminating against those with disabilities, why not accept that judgment, he asked.

Arguing for state employees, Clinton administration lawyer Seth Waxman and Georgetown University law professor Michael Gottesman said that Congress had evidence of "pervasive and widespread discrimination" against the disabled, and that justified a national law applying to all employers.

Justice O'Connor, who usually casts the deciding vote in such cases, said little during Wednesday's argument. A ruling on the case is expected early next year.

001012
LT001003

Always watch for outdated information. This article first appeared in 2000. This material is designed to support, not replace, the relationship that exists between you and your doctor.

AEGiS presents published material, reprinted with permission and neither endorses nor opposes any material. All information contained on this website, including information relating to health conditions, products, and treatments, is for informational purposes only. It is often presented in summary or aggregate form. It is not meant to be a substitute for the advice provided by your own physician or other medical professionals. Always discuss treatment options with a doctor who specializes in treating HIV.

Copyright ©1980, 2000. AEGiS. All materials appearing on AEGiS are protected by copyright as a collective work or compilation under U.S. copyright and other laws and are the property of AEGiS, or the party credited as the provider of the content. .