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Court Sidesteps Ruling on State Versus Federal Worker Protections

A federal appeals court -- considering whether a state can move an employment discrimination lawsuit to federal court and then claim it is immune from lawsuits there – decided the matter on other grounds, leaving a problematic ruling against the worker untouched.


Paul Hester, who worked for the Indiana State Department of Health, alleged he was terminated based in part on his age. He filed a claim in state court alleging among other things violation of the federal Age Discrimination in Employment Act (ADEA).

The state moved to transfer the case to federal court, and then moved for summary judgment claiming that the Eleventh Amendment to the Constitution immunizes the state from private suits under the ADEA in federal court. The U.S. District Court for the Southern District of Indiana agreed with the state, separating the immunity from a lawsuit (which the state inarguably waived by bringing the case in federal court) from the immunity from liability. In other words, the court ruled that regardless of how the case came to federal court – even if it was on the motion of the defendant itself – there is an absolute immunity from liability from ADEA lawsuits that is held by the state when it is in federal court.

AARP Foundation Litigation attorneys filed AARP’s friend-of-the-court brief in the case addressing only the sovereign immunity issue. The brief cited decisions from other courts rejecting this type of procedural game playing, including one decision from the U.S. Court of Appeals for the Ninth Circuit that ruled “Allowing a State to waive immunity to remove a case to federal court, then ‘unwaive’ it to assert that the federal court could not act, would create a new definition of chutzpah.” The brief also points out the plain language of Indiana’s own age discrimination act and demonstrates that the state deliberately subjected itself to liability under the ADEA in any event. “So even if legitimate,” AARP’s brief stated, “a distinction between immunity from suit and immunity from liability is a distinction without a difference when it comes to ADEA claims in Indiana.”

The U.S. Court of Appeals for the Seventh Circuit sidestepped what it called “the interesting questions of sovereign immunity” by ruling against the worker on the grounds that the worker had provided insufficient evidence of age discrimination at trial. The Court discussed the issues of sovereign immunity and the split among the circuits, but ultimately decided that “rather than plunge into those delicate topics in a case where the answers ultimately do not matter, we are content to save them for another day.”

What’s at Stake

Judicial precedents have steadily eroded age and disability discrimination protections for state employees over the years. Accepting the state’s argument would leave state employees without any recourse for discrimination in many states, even where the state legislatures have expressly, deliberately, and carefully enacted protections under state law.  A ruling that a state can invoke federal court jurisdiction solely for the purpose of cloaking itself with immunity would be devastating to the already precarious protections of state employees from discrimination based on age.

Case Status

Hester v. Indiana State Department of Health was decided by the U.S. Court of Appeals for the Seventh Circuit.