Lorna Wilkes & US V Wyoming State Department Of Labor

MARIA H. RIOS
Attorney
U.S. Department of Justice
Civil Rights Division
Employment Litigation Section
P.O. Box 65968
Washington, D.C. 20035-5968
(202) 616-9750

JOHN R. GREEN
Interim United States Attorney

CAROL A. STATKUS
Assistant United States Attorney
District of Wyoming
P.O. Box 668
Cheyenne, WY 82003-0669
(307) 722-2124

ATTORNEYS FOR INTERVENOR

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF WYOMING

LORNA WILKES,
Plaintiff,

UNITED STATES,
Intervenor,

Civil No. 01 CV 1020-D


v.

STATE OF WYOMING, WYOMING
DEPARTMENT OF EMPLOYMENT,
FAIR LABOR STANDARDS DIVISION

Defendants.

INTERVENOR'S MOTION ADDRESSING DEFENDANTS'
CONSTITUTIONAL CHALLENGE TO THE ABROGATION
OF ELEVENTH AMENDMENT IMMUNITY WITH REGARD
TO SEX DISCRIMINATION CLAIMS UNDER TITLE VII OF THE CIVIL RIGHTS ACT

Intervenor, the United States, opposes Defendants' motion for entry of judgment on the pleadings as it pertains to the contention that Congress exceeded its legislative authority under Section 5 of the Fourteenth Amendment to the United States Constitution when it abrogated the States' Eleventh Amendment immunity with regard to sex discrimination claims raised by private parties under Title VII of the Civil Rights Act of 1964, as amended,42 U.S.C. ァ2000e, et seq. ("Title VII").

I. PROCEDURAL BACKGROUND

This suit is a private action filed by plaintiff Lorna Wilkes, a former compliance officer with the Division of Labor Standards of the Wyoming Department of Employment. Plaintiff alleges that she was harassed and discriminated against because of her sex (female) in violation of Title VII and the Wyoming Fair Employment Practices Act. Among other things, in relief Plaintiff seeks compensatory damages pursuant to 42 U.S.C. ァ 1981. On June 22, 2001, Defendants filed a motion for judgment on the pleadings arguing that the doctrine of res judicata bars all claims asserted by Plaintiff in this suit, and, in the alternative, that the Eleventh Amendment to the United States Constitution bars the Title VII claims therein. Defendants contend that Congress exceeded its legislative authority under Section 5 of the Fourteenth Amendment to the U.S. Constitution when it abrogated the States' Eleventh Amendment immunity with regard to Title VII sex discrimination claims in private suits.

Pursuant to Rule 24(c) of the Federal Rules of Civil Procedure, when the constitutionality of an Act of Congress, such as Title VII, is drawn into question in an action in which the United States is not a party, the Court is to notify the Attorney General as provided in 28 U.S.C. ァ 2403. The cited statutory provision permits the United States to intervene in the action to defend the constitutionality of the challenged statute. Since 1996, the Civil Rights Division of the U.S. Department of Justice has intervened or otherwise participated in dozens of cases in which the constitutionality of federal civil rights statutes was challenged under the Eleventh Amendment Our intervention will be limited to addressing Defendants' constitutional challenge to the abrogation of Eleventh Amendment immunity with regard to sex discrimination claims under Title VII.

II. SUMMARY OF ARGUMENT

The Eleventh Amendment is no bar to Plaintiff's claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. ァ 2000e et seq. In Fitzpatrick v. Bitzer, 427 U.S. 445 (1976), the Supreme Court held that Title VII contained an express abrogation of the States' Eleventh Amendment immunity. That holding, never overruled by the Court, thus binds this Court. Likewise, the abrogation extends to the compensatory damages remedy that Congress added after Fitzpatrick had been decided. The abrogation is a constitutional exercise of Congress's power under Section 5 of the Fourteenth Amendment, as applied to cases involving sex discrimination. Like the Equal Protection Clause itself, Title VII prohibits state employers from discriminating on the basis of sex. Title VII's prohibitions are "congruent and proportional" to the underlying constitutional standard, and no additional findings are required.

Additionally, the Supreme Court has consistently taken notice of the pervasive practice of state-sponsored sex discrimination in this country. Congress heard testimony to the same effect at the time it extended Title VII to the States. Thus, there is no basis for holding that Congress lacked the power to authorize private suits against state employers accused of violating Title VII's prohibition on sex discrimination, or to challenge the constitutionality of Title VII as it applies to state governments.

III. ARGUMENT

In Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996), the Supreme Court set forth the following two-part inquiry to determine whether a statute validly abrogates a State's Eleventh Amendment immunity:

we ask two questions: first, whether Congress has unequivocally expressed its intent to abrogate the immunity; and second, whether Congress has acted pursuant to a valid exercise of power.

Id. at 55 (citations and quotations omitted). The Seminole Tribe Court held that Congress could not use its Article I powers to abrogate the States' Eleventh Amendment immunity. See id. at 59-73. The Court reaffirmed, however, that Congress may use its power "to enforce, by appropriate legislation," the Fourteenth Amendment, U.S. Const. Amend. XIV, ァ 5, to abrogate the States' Eleventh Amendment immunity to private suits in federal court. See Seminole Tribe, 517 U.S. at 59; see also Cisneros v. Wilson, 226 F.3d 1113, 1119 (10th Cir. 2000).

A. CONGRESS UNEQUIVOCALLY EXPRESSED ITS INTENT
TO ABROGATE STATES' ELEVENTH AMENDMENT
IMMUNITY TO TITLE VII CLAIMS

Title VII prohibits employers from discriminating on the basis of sex in the compensation, terms, conditions, or privileges of employment. See 42 U.S.C. ァ 2000e-2(a). Although Title VII as originally enacted did not subject States to liability, in 1972 Congress amended the statute to include "governments [and] governmental agencies" within its definition of "person," and, by extension, its definition of "employer." 42 U.S.C. ァァ 2000e(a), 2000e(b). In Fitzpatrick v. Bitzer, the Supreme Court held that this amending language demonstrated with sufficient clarity that "congressional authorization to sue the State as employer is clearly present." Id. at 452 (citation and quotations omitted). Indeed, the Supreme Court later explained that "[i]n Fitzpatrick v. Bitzer, the Court found present in Title VII of the Civil Rights Act of 1964 the 'threshold fact of congressional authorization' to sue the State as employer, because the statute made explicit reference to the availability of a private action against state and local governments in the event the Equal Employment Opportunity Commission or the Attorney General failed to bring failed to bring suit or effect a conciliation agreement." Quern v. Jordan, 440 U.S. 332, 344 (1979)(citation omitted).

Subsequent to Fitzpatrick v. Bitzer, Courts of Appeals have consistently held that the 1972 and 1991 (1)Civil Rights Acts abrogated the States' Eleventh Amendment immunity. Okruhlik v. University of Arkansas, 255 F.3d 615, 622 (8th Cir. June 20, 2001)(citing Johnson v. University of Cincinnati, 215 F.3d 561, 571 (6th Cir. 2000); In re Employment Discrimination Litigation Against the State of Alabama, 198 F.3d 1305, 1316-17 (5th Cir. 1999); Ussery v. Louisiana, 150 F.3d 431, 434-435 (5th Cir. 1998); Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 696 n. 4 (3d Cir. 1996); Cerrato v. San Francisco Community College, 26 F.3d 968, 975-76 (9th Cir. 1994); Winbush v. Iowa, 66 F.3d 1471, 1483 (8th Cir. 1995); Greenwood v. Ross, 778 F.2d 448, 453 (8th Cir. 1985)).

Defendants acknowledge the holding of Fitzpatrick v. Bitzer, but argue that the method of reaching the holding has been rejected by later cases. While we disagree with that contention, see Ussery v. Louisiana, 150 F.3d 431, 435 (5th Cir. 1998)(rejecting same argument), cert. dismissed, 526 U.S. 1013 (1999), it is ultimately irrelevant. Finding that Title VII contained a sufficiently clear intent to abrogate Eleventh Amendment immunity was a necessary threshold holding in order to enter a judgment against the state Defendant in that case. And this Court is bound by such holdings. "'[I]f a precedent of [the Supreme Court] has direct application in a case * * *, the Court of Appeals should follow the case which directly controls, leaving to [the Supreme] Court the prerogative of overruling its own decisions.'" Agostini v. Felton, 521 U.S. 203, 237 (1997); see also Thurston Motor Lines, Inc. v. Jordan K. Rand, Ltd., 460 U.S. 533, 535 (1983) (per curiam). As the question has been definitively resolved by the Supreme Court, this Court cannot revisit it. (2) See In re Employment Discrimination Litigation Against State of Alabama, 198 F.3d at 1317.

TITLE VII'S ABROGATION EXTENDS TO
CLAIMS FOR COMPENSATORY DAMAGES

Title VII's abrogation also extends to its compensatory damage remedies. Although not placed in the same chapter as the rest of Title VII, the plain language of the 1991 statutory provision makes clear that it is intended as an additional remedy for Title VII violations, to be adjudicated in conjunction with liability, rather than as a separate cause of action. The 1991 Amendment simply "expanded the remedies available to Title VII Plaintiffs to include compensatory damages (for emotional pain, suffering, mental anguish, etc.)." Kim v. Nash Finch Co., 123 F.3d 1046, 1063 (8th Cir. 1997).

Section 1981a(a)(1) provides:

In an action brought by a complaining party under section 706 of the Civil Rights Act of 1964 (42 U.S.C. ァ 2000e-5) against a respondent who engaged in unlawful intentional discrimination * * * prohibited under section 703 or 704 of the Act (42 U.S.C. ァァ 2000e-2 or 2000e-3), and provided that the complaining party cannot recover under [42 U.S.C. ァ 1981], the complaining party may recover compensatory and punitive damages as allowed in subsection (b) of this section, in addition to any relief authorized by section 706(g) of the Civil Rights Act of 1964 [42 U.S.C. ァァ 2000e-5(g)], from the respondent.

In order to be eligible for compensatory damages, a "complaining party" (defined to mean "a person who may bring an action or proceeding under Title VII," 42 U.S.C. ァ1981a(d)(1)) must show in an "action brought" under Title VII that a "respondent" engaged in "unlawful intentional discrimination" prohibited by Title VII. Thus, this provision applies to"an action" already brought, and does not create a separate cause of action requiring a distinct abrogation of immunity. Instead, the district court's jurisdiction is granted by 42 U.S.C. ァァ 2000e-5(f)(1) and 5(f)(3), which together provide that "a civil action may be brought against the respondent named in the charge * * * by the person claiming to be aggrieved," and that "[e]ach United States district court * * * shall have jurisdiction of actions brought under this subchapter." The Court in Fitzpatrick v. Bitzer found these provisions, plus the inclusion of States as employers, were sufficient to abrogate Eleventh Amendment immunity.

B. TITLE VII'S PROHIBITION OF DISCRIMINATION ON THE
BASIS OF SEX, INCLUDING SEXUAL HARASSMENT, AS
APPLIED TO THE STATES, IS AN "APPROPRIATE" EXERCISE
OF CONGRESS'S POWER UNDER SECTION 5 OF THE FOURTEENTH AMENDMENT.

Since Congress unequivocally abrogated the States' Eleventh Amendment immunity when it amended Title VII to include state governments and governmental agencies within the definition of "person," and, by extension, the definition of "employer," 42 U.S.C. ァァ 2000e(a), 2000e(b), we can proceed to the second part of the Seminole Tribe test: whether Title VII's prohibition of discrimination on the basis of sex, including sexual harassment, as applied to the States, is an "appropriate" exercise of Congress's power under Section 5 of the Fourteenth Amendment. See Kimel v. Florida Board of Regents, 528 U.S. at 77-79.

Congress has the power to abrogate States' Eleventh Amendment immunity to private suits under federal statutes enacted pursuant to Section 5 of the Fourteenth Amendment, which authorizes Congress to enact "appropriate" legislation to "enforce" the Equal Protection Clause. Id. (citing Fitzpatrick). Section 5 of the Fourteenth Amendment is "a positive grant of legislative power," and Congress's power to enforce the Fourteenth Amendment, while not unlimited, is broad. City of Boerne v. Flores, 521 U.S. 507, 517 (1997). Congress's power "to enforce" the Amendment "includes the authority both to remedy and to deter violation of rights guaranteed thereunder by prohibiting a somewhat broader swath of conduct, including that which is not itself forbidden by the Amendment's text." Kimel, 528 U.S. at 79.

Therefore, the central inquiry in determining whether legislation is a valid exercise of Congress's Section 5 authority is whether the legislation is an appropriate means of deterring or remedying constitutional violations or whether it is "so out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior." Id. at 645 (quoting City of Boerne, 521 U.S. at 532). Although "the line between measures that remedy or prevent unconstitutional actions and measures that make a substantive change in the governing law is not easy to discern * * * Congress must have wide latitude in determining where it lies." Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, 527 U.S. 627, 629 (1999). "It is for Congress in the first instance to 'determin[e] whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment,' and its conclusions are entitled to much deference." City of Boerne, 521 U.S. at 536. So long as there is a "congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end," enforcement legislation is appropriate within the meaning of the Fourteenth Amendment. (3) Id. at 520.

"To determine whether Congress validly abrogated the Eleventh Amendment, a court must 'examine whether Congress identified a history and pattern of unconstitutional employment discrimination by states [on the basis of race and gender].' Garrett v. Board of Trustees of the University of Alabama, 121 S.Ct. 955, 964 (2000). Then consideration must be given as to whether the rights and remedies created by Title VII are 'congruent and proportional' to that pattern of discrimination. Id. at 966; City of Boerne v. Flores, 521 U.S. at 519-29 (1997)." Okruhlik v. University of Kansas, 255 F.3d at 626.

DISCRIMINATION ON THE BASIS OF SEX, INCLUDING SEXUAL HARASSMENT, VIOLATES THE EQUAL PROTECTION CLAUSE

The Plaintiff in this suit alleges that she was subject to harassment and discrimination on the basis of sex by her former employer, the Division of Labor Standards of the Wyoming Department of Employment. Title VII's prohibition of sexual harassment by States enforces the Equal Protection Clause's ban on intentional sex discrimination. The Equal Protection Clause prohibits intentional discrimination on the basis of sex by state actors. See United States v. Morrison, 529 U.S. 598, 620 (2000); United States v. Virginia, 518 U.S. 515, 523 (1996); J.E.B. v. Alabama, 511 U.S. 127,130-131 (1994); Mississippi University for Women v. Hogan, 458 U.S. 718, 723 (1982).

The Supreme Court has interpreted Title VII's ban on sexual harassment to proscribe the type of conduct that, when carried out by state actors, is also prohibited by the Constitution. As stated above, Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer "to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. ァ 2000e-2(a)(1). In Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986), the Supreme Court held that "when a supervisor sexually harasses a subordinate because of the subordinate's sex, that supervisor 'discriminate[s]' on the basis of sex" within the plain meaning of these terms. The Court also concluded that Title VII's prohibition on discrimination in the "terms, conditions, or privileges, of employment" demonstrates an intent "to strike at the entire spectrum of disparate treatment of men and women" in employment. Id. at 64. The Court has concluded, therefore, that Title VII prohibits not only sexual harassment that culminates in the denial of tangible employment benefits, but also other sexual harassment that is so "severe or pervasive" that it "'alter[s] the conditions of employment and create[s] an abusive working environment.'" See id. at 67 (quoting Henson v. Dundee, 682 F.2d 897, 902 (11th Cir. 1982)).

More recently, the Court has made clear that "Title VII does not prohibit all verbal or physical harassment in the workplace * * *." See Oncale v. Sundowner Offshore Services Inc., 523 U.S. 75, 79 (1998). Rather, Title VII's prohibition of sexual harassment extends only to discrimination because of sex, i.e., working conditions in which "'members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.'" See id. at 80 (quoting Harris v. Forklift Systems, Inc., 510 U.S. 17, 25 (1993)(Ginsburg, J. concurring)). As the Supreme Court had earlier noted in Meritor and Harris, Title VII's prohibition of sexual harassment "requires neither asexuality nor androgyny in the workplace; it forbids only behavior so objectively offensive as to alter the condition of the victim's employment." Oncale v. Sundowner Offshore Services, Inc., 523 at 80 (citing Harris v. Forklift Systems, Inc., 510 U.S. at 21; Meritor Savings Bank, FSB v. Vinson, 477 U.S. at 67).

Thus, the applicable case law supports the position that Title VII's prohibition on sex discrimination, including its prohibition on sexual harassment, is constitutional. (4)

THE AMPLE EVIDENCE BEFORE CONGRESS OF SEX DISCRIMINATION BY STATES WAS MORE THAN SUFFICIENT TO SUPPORT TITLE VII'S PROHIBITION OF SEX DISCRIMINATION, INCLUDING SEXUAL HARASSMENT, BY STATE EMPLOYERS

Defendants in the instant action argue that this Court should disregard Fitzpatrick v. Bitzer, which is on point and binding, and instead determine whether Congress has properly enacted legislation - applying Title VII to the States - pursuant to its Section 5 enforcement authority based on the analysis set forth in City of Boerne v. Flores, supra; Kimel v. Florida Board of Regents, supra, and Garrett v. Board of Trustees of the University of Alabama, supra. Motion, pp. 18-21. While Fitzpatrick v. Bitzer binds this Court, there is ample evidence in the Congressional record of sex discrimination by state governments, more than sufficient to support Title VII's prohibition of the same.

The second part of the Garrett test proposed by Defendants pertains to the analysis of the legislative history. Motion, p. 18. Defendants argue that the legislative history of the Civil Rights Act of 1964 contains no evidence to show a pattern of unconstitutional sex discrimination by state governments. However, "Congress is not obligated, when enacting its statutes, to make a record of the type that an administrative agency or court does to accommodate judicial review." Turner Broadcasting Systems, Inc. v. FCC, 520 U.S. 180, 212 (1997). While the legislative record may be of assistance in determining whether the proper legislative purpose and/or factual predicate exists,"the lack of support in the legislative record is not determinative." Florida Prepaid, 527 U.S. at 646. As the Second Circuit explained in Kilcullen v. New York State Department of Labor, 205 F.3d 77 (2d Cir. 2000), "[t]he ultimate question remains not whether Congress created a sufficient legislative record, but rather whether, given all of the information before the Court, it appears that the statute in question can appropriately be characterized as legitimate remedial legislation." Id. at 81 (emphasis added). (5)

There is no question that States have engaged in a widespread pattern of unconstitutional sex discrimination and that the problem is not an "inconsequential" one. In J.E.B. v. Alabama, 511 U.S. 127 (1994), the Supreme Court concluded that "'our Nation has had a long and unfortunate history of sex discrimination,' a history which warrants the heightened scrutiny we afford all gender-based classifications today." Id. at 136 (citation omitted); see also United States v. Virginia, 518 U.S. 515, 531-532, 545 (1996)(noting, inter alia, governmental discrimination on the basis of sex in employment).

Because the Supreme Court itself has determined that the States have engaged in sex discrimination, it is not necessary to examine whether the legislative history also supports that conclusion. As the Fifth Circuit recently noted, given the national history of sex discrimination by States and the heightened scrutiny accorded gender classifications, it would be difficult "'to understand how a statute enacted specifically to combat [gender] discrimination [by States] could fall outside the authority granted to Congress by ァ 5.'" Pederson v. Louisiana State University, 201 F.3d 388, 406 (5th Cir. 2000)(upholding Title IX of the Education Amendments of 1972)(quoting Crawford v. Davis, 109 F.3d 1281, 1283 (8th Cir. 1997)).

In any event, even if we were required to identify evidence of sex discrimination by state employers that was before Congress, that requirement would be easily met. In the early 1970s, Congress addressed discrimination against women by States in several pieces of legislation. Specifically, Congress: (1) enacted the Education Amendments of 1972, which extended a non-discrimination prohibition to all education programs receiving federal funds and extended the Equal Pay Act to all employees of educational institutions, see Pub. L. No. 92-318, Tit. IX, 86 Stat. 373-375 (1972); (2) extended Title VII to state and local government employers, see Pub. L. No. 92-261, ァ 2, 86 Stat. 103 (1972); (3) sent the Equal Rights Amendments to the States to be ratified, see S. Rep. No. 450, 93d Cong., 1st Sess. 4 (1973); and (4) extended the protections of the Equal Pay Act, which prohibits gender discrimination in wages, to all state employees, see Pub. L. No. 93-259, 88 Stat. 55 (1974). Prior to taking such action, Congress held extensive hearings and received reports from the Executive Branch on the subject of sex discrimination by States. The testimony and reports illustrate that sex discrimination by state employers was common, and that existing remedies, both at the state and federal level, were inadequate. Indeed, even after Congress extended Title VII to the States, the Chair of the Equal Employment Opportunity Commission agreed that state and local governments were "the biggest offenders" of Title VII's prohibition on sex discrimination and that "[w]e have a great deal of problems both with educational institutions and State and local governments." Economic Problems of Women: Hearings Before the Joint Econ. Comm., Pt. 1, 93d Cong., 1st Sess. 105-106 (1973).

In the committee reports and floor debates concerning legislation aimed at redressing sex discrimination, Congress noted the "scope and depth of the discrimination," (6) and stated that "[m]uch of this discrimination is directly attributable to governmental action both in maintaining archaic discriminatory laws and in perpetuating discriminatory practices in employment, education and other areas." S.Rep. No. 689, 92d Cong.,2d Sess. 7 (1972)(emphasis added). This conclusion is consistent with Congress's assessment that the "well documented" record revealed "systematic," and "widespread" sex discrimination by States, which "persist[ed]" despite the fact that it was "violative of the Constitution of the United States." (7) 118 Cong. Rec. 3936, 5804 (1972).

TITLE VII'S APPLICABILITY TO STATE GOVERNMENTS EXHIBITS CONGRUENCE AND PROPORTIONALITY BETWEEN THE INJURY TO BE REMEDIED AND THE MEANS ADOPTED TO THAT END

Defendants do not address congruence and proportionality between the injury to be remedied - discrimination on the basis of sex and sexual harassment - and the 1972 amendment to Title VII with regard to state governments. Since the second part of the Garrett test - on which Defendants rely - was met, we can proceed to the third part of the test, in which the Court must review the legislative scheme to determine whether it exhibits congruence and proportionality between the injury and the means adopted to remedy it. Motion, p. 17.

"The Fourteenth Amendment prohibits intentional discrimination or disparate treatment on the basis of race or gender by states unless they satisfy a difficult burden, see Washington v. Davis, 426 U.S. 229, 239 (1976)(race); United States v. Morrison, 529 U.S. at 620 (gender), just as Title VII prohibits the same intentional discrimination. See 42 U.S.C. ァ 2000e-2a. The elements of a claim of intentional discrimination are essentially the same under Title VII and the Constitution. See Briggs v. Anderson, 796 F.2d 1009, 1021 (8th Cir. 1986). Title VII does not make acts of States unlawful that would be permitted under the Constitution, and it is appropriate legislation." Okruhlik v. University of Arkansas at 626. As the recent Okruhlik opinion goes on to state, based on the widespread pattern of discrimination by state governments identified by Congress, and given that Congress has wide latitude in fashioning an appropriate remedy, compensatory damages under Title VII are proportional and congruent. Id.

IV. CONCLUSION

Since Congress has unequivocally expressed its intention to abrogate the States' immunity and acted pursuant to its constitutional authority, it validly abrogated the Eleventh Amendment for Title VII claims on the basis of gender, including sexual harassment.

Defendants' request for entry of judgment on the pleadings as it pertains to the Eleventh Amendment should be denied.

Respectfully submitted,

__________________________

MARYBETH MARTIN
MARIA RIOS
Attorneys
U.S. Department of Justice
Civil Rights Division
P.O. Box 65968
Washington, D.C. 20035-5968
202-616-9750

1. Prior to 1991,Title VII remedies consisted of back pay and other equitable relief. See 42 U.S.C. ァ 2000e-5(g)(1). Congress amended Title VII in 1991 to permit victims of unlawful intentional discrimination to collect compensatory damages. See Civil Rights Act of 1991, Pub. L. No. 102-166, Tit. I, ァ 102, 105 Stat. 1072 (1991)(codified at 42 U.S.C. ァ 1981a).

2. In the recent Okruhlik opinion, the Court of Appeals for the Eight Circuit addressed Fitzpatrick v. Bitzer, and concluded that, even if were not bound by Fitzpatrick, it would reach the same result:

If we were free to reconsider Fitzpatrick and our prior case law, our study would lead us to conclude that Congress unmistakably expressed its intent in the 1972 Act to subject states to suits under Title VII. In its amendments to the Act in 1972, Congress expanded the definition of employer to include "governments, governmental agencies, [and] political subdivisions..." 42 U.S.C. ァ 2000e(b). The definition of employee was also expanded to include individuals "subject to the civil service laws of a State government, governmental agency or political subdivision." 42 U.S.C. ァ 2000e(f). The express exclusion of states from Title VII liability in the 1964 Act was removed. See 42 U.S.C. ァ 2000e(b). Read as a whole, the plain language of these provisions demonstrates Congress' intent to abrogate Eleventh Amendment immunity of the states in this area. See Kimel v. Florida Board of Regents, 528 U.S. 62, 74 (2000).

Id. at 9.

3. After the Court's decision in Kimel, its most recent opinion addressing the scope of Congress's Section 5 authority, three courts of appeals have held that Title VII's abrogation is effective. See Holman v. Indiana, 211 F.3d 399, 402 n.2 (7th Cir. 2000)(sex discrimination); Johnson v. University of Cincinnati, 215 F.3d 561, 571 (6th Cir. 2000)(race discrimination and retaliation); Jones v. WMATA, 205 F.3d 428, 434 (D.C. Cir. 2000)(retaliation).

4. Similarly, every circuit that has considered the issue has held that the Equal Pay Act, 29 U.S.C. 206(d), which prohibits unequal pay by state employers on the basis of sex, is a valid exercise of Congress's Section 5 power to enforce the Equal Protection Clause. See Hundertmark v. Florida Department of Transportation, 205 F.3d 1272, 1274 (11th Cir. 2000); Anderson v. State University of New York, 169 F.3d 117 (2d Cir. 1999), vacated,120 S.Ct. 929 (2000), remanded, 107 F.Supp.2d 158 (N.D.N.Y.2000)(District Court held that Equal Pay Act (EPA) was not unconstitutional substantive addition to protections of Fourteenth Amendment, and thus represented valid abrogation of states' Eleventh Amendment immunity); Usery v. Allegheny County Inst. District, 544 F.2d 148, 155 (3d Cir. 1976), cert. denied, 430 U.S. 946 (1977); Usery v. Charleston County School District, 558 F.2d 1169, 1171 (4th Cir. 1977); Ussery v. Louisiana, 150 F.3d 431 (5th Cir. 1998), cert. dismissed, 526 U.S. 1013 (1999); Timmer v. Michigan Department of Commerce, 104 F.3d 833 (6th Cir. 1997); O'Sullivan v. Minnesota, 191 F.3d 965 (8th Cir. 1999). These cases properly recognize that Congress's Section 5 power includes the power to prohibit sex discrimination by States.

5. Because Title VII's prohibition of intentional discrimination, including sexual harassment, provides a remedy for conduct that when engaged in by the States, violates the Equal Protection Clause, it can clearly be characterized as "legitimate remedial legislation," and no further inquiry is necessary.

6. H.R. Rep.No. 554, 92d Cong., 1st Sess. 51 (1971)(report for Education Amendments).

7. Additional congressional materials are cited and discussed in Okruhlik v. University of Arkansas, 255 F.3d at 625.

Updated August 6, 2015

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