Alaska Denied Immunity in Discrimination Case

(CN) - The state of Alaska is not immune from sexual harassment and retaliation claims brought under the Government Employee Rights Act of 1991, the 9th Circuit ruled in a splintered decision.

The court rejected the state's attempt to block the claims of two former employees of then-Gov. Walter Hickel.

Lydia Jones said she was paid less because she is a black woman, and was sexually harassed and retaliated against for complaining about the harassment. The Governor's Office allegedly ignored her complaints.

Co-worker Margaret Ward said she was paid less based on her gender and was fired for supporting Jones' claims.

They filed claims with the Equal Employment Opportunity Commission, which assigned the case to an administrative law judge. The judge rejected Alaska's sovereign immunity defense and the EEOC agreed on appeal.

The state again appealed, asserting its 11th Amendment immunity rights.

The federal appeals court in San Francisco denied the state's defense and remanded to the EEOC.

"Congress's intent to abrogate sovereign immunity in the Government Employee Rights Act is both 'unequivocal and textual,'" Judge Kozinski wrote. "The only way Congress could have been clearer would have been to say 'this act abrogates state sovereign immunity.'"

The law protects the rights of government employees, including state employees.

Judge O'Scannlain dissented in part, saying Jones had a case for sexual harassment, but Ward failed to state a claim for retaliatory discharge.

Judge Ikuta wrote a dissenting opinion, joined by Judges Tallman and Callahan. Ikuta said the Act "does not expressly abrogate state sovereign immunity, either directly or by reference."

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