USERRA Suits Against Public Employers Not Barred by Sovereign Immunity

The Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”) prevents discrimination against active-duty and veteran employees. Last week, in a 5-4 decision, the United States Supreme Court held that states and their agencies cannot invoke sovereign immunity as a defense to claims brought under this Act.

In Torres v. Texas Department of Public Safety, LeRoy Torres, who was a member of the Army Reserves, was unable to return to his job as a Texas State Trooper after he suffered service-related injuries while serving in Iraq. After receiving an honorable discharge, Torres requested that the Department of Public Safety (“DPS”) re-employ him in a different position as an accommodation for his disability. When DPS refused to do so, Torres filed suit in Texas state court, alleging discrimination based on the failure to accommodate his service-related disability as USERRA requires.

DPS invoked the defense of sovereign immunity. Generally, a state’s sovereign immunity may only be waived in limited circumstances, such as the consent of the state, by Congress under the Enforcement Clause of the Fourteenth Amendment, or by a “structural waiver,” which recognizes that States implicitly agreed that “their sovereignty would yield to the exercise of a particular federal power” that the structure of the original Constitution created. The state court denied DPS’s motion to dismiss on the basis of sovereign immunity, but the state appellate court reversed. The United States Supreme Court granted certiorari to review the question whether claims arising under USERRA could stand against state entities as a valid Congressional abrogation of sovereign immunity.

The United States Supreme Court recognized that USERRA is a valid exercise of Congress’s power to raise and maintain an army. Because such power is contained in the Constitution, by joining the Union, the states impliedly consented to Congress’s power to abrogate sovereign immunity as incidental to effectuate this power. Thus, USERRA’s authorization of private suits against employers also applies to state employers, as a “structural waiver” of sovereign immunity. The Court noted its prior hesitancy to recognize “structural waivers,” but also held that, in this case, Congress’s clear authorization to raise an army and the principles of federal supremacy make it apparent that the states consented to a waiver of their sovereign immunity in this arena.

With this new ruling, public employers should educate themselves and be particularly mindful of the protections that USERRA provides active-duty and veteran employees.

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