May state employees sue for age discrimination under federal law?
The Age Discrimination in Employment Act of 1967 (ADEA) makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” In a pair of lawsuits consolidated for this appeal, university professors at state universities sued their university as employer for age discrimination. In the lower courts, the circuits split, one finding that the plaintiffs’ claim against the state was proper and the other that the claim was prohibited because congress failed to properly abrogate the state’s 11th amendment immunity from suit by individuals. (While the 11th amendment only refers to immunity from suit by citizens of other states and foreign jurisdictions, long Supreme Court precedent has included a on the federal right to allow states to be sued by their own citizens.) The 11th amendment ban is not ablsolute,
