In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law.
Some attorneys call the exception ‘outrageous.
After several years of investigating child pornography cases, Antonio Passaro, a special agent for the Virginia State Police, had been diagnosed with post-traumatic stress disorder and asked five times to switch to another division.
“It’s a horrible unit to be in,” Passaro, a former state trooper from Virginia Beach, told The Virginian-Pilot. “To endure those images, day in and day out. I told them it was affecting me.”
His transfer requests were denied. He started getting disciplinary notices for failing to manage his caseload, according to court documents, and learned he was likely to be demoted.
Passaro filed a complaint with the Equal Employment Opportunity Commission, asserting the state police department had failed to make reasonable accommodations for his PTSD. A month later, according to the documents, he was fired. After appealing several times, he turned to the court system, suing the commonwealth under the Americans with Disabilities Act.
But the court quickly dismissed the claim.
The reason was something even his seasoned attorney hadn’t known applied in the case: sovereign immunity, or the government’s shield against being sued.
Unlike in other discrimination cases, such as those involving race or sex, the state is largely protected from being sued by its employees over disability discrimination.
There are exceptions: You can sue for relief without damages, though many attorneys say they wouldn’t take such a case. You can sue under state law, though experts say the commonwealth’s law is so weak it’s almost moot. Some states have passed laws waiving immunity in discrimination cases. Not Virginia.
“The dirty little secret is you can complain all you want, but if they don’t choose to give you any relief, you’re out of luck,” said Virginia Beach-based attorney Kevin Martingayle, who represented Passaro. “That’s nothing short of outrageous.”
A right that can’t be enforced
When Congress passed the ADA in 1990, part of the law declared that states would not be immune from liability.
But in 2001, the Supreme Court found that provision unconstitutional under the Eleventh Amendment. In Board of Trustees of University of Alabama V. Garrett, the justices ruled that states could not be sued for monetary damages under Title I of the ADA, which deals with employment. The ruling does not affect anything at the municipal level.
“After it was passed with much fanfare in 1990, almost all states said, ‘Oh, yeah,’” Martingayle said. “But after that (immunity) defense was asserted, they haven’t had any rush to be bound by it.”
Disabled state employees should not waste their time trying to seek remedies they won’t be able to get, he said.
“If I knew they were going to do that, I would’ve just walked away,” Passaro said. “Go into any state building and you will see bulletins and poster boards everywhere that say equal opportunity, equal employment and all that. … It’s false advertising.”
Martingayle emailed Gov. Ralph Northam and Attorney General Mark Herring in August, explaining Passaro’s situation, saying he sees the issue as “a classic ‘bait and switch.’”
“Employees are falsely assured that they have meaningful protection from various forms of discrimination, including disability discrimination, and yet they are deprived of the right to pursue direct remedies in court when they find themselves victimized by state agencies and actors,” he wrote, asking that state officials review their policies on the matter.
He wrote again when he saw Northam had signed an executive order expanding opportunities for Virginians with disabilities last month and “was angry all over again,” he said. He has not heard back.
“Given the impact a statement would have on pending and upcoming litigation, we cannot comment at this time,” a spokeswoman for Northam said in an email to The Pilot. “The governor is committed to equity at all levels of state government.”
A spokeswoman for Herring said in an email that he’s “dedicated to fighting discrimination and promoting justice, equality, and opportunity for all Virginians.
“Each case is handled based on facts and the law, but we generally do not comment on legal strategy outside of court.”
Even if Virginia chooses to continue exercising sovereign immunity in these cases, Martingayle said, he would like to see the commonwealth update the materials provided to employees that explicitly says they have those rights.
“If the state is going to declare itself exempt from federal disability laws, it needs to own it,” he said. “They’re failing to reveal an important piece of information but also actively misleading people.”
Lisa Bertini, a Virginia Beach employment attorney, had not been aware of the loophole either, until hearing of Martingayle’s case.
“I was shocked,” she said. “What good is a right if you can’t enforce it?”
Bertini said she’s represented state employees in similar situations but often works out arrangements with the state before having to file suit. No one ever told her that if it was needed, that route would likely be closed.
It’s unclear how often such a case reaches court in Virginia. Searches through the federal court system’s online database revealed Passaro’s case and another from last year that involved a former auditor who sued the Office of the State Inspector General. The auditor said he was fired in part because of his irritable bowel syndrome.
Tim Schulte, a Richmond-based attorney, represented the employee in that case and nearly a dozen others against the state in recent years.
“I am the lawyer who keeps going up against the attorney general on this,” Schulte said with a laugh.
In the case against the inspector general, Virginia claimed sovereign immunity for some of the claims but ultimately reached a confidential settlement. Schulte got around the exception in part by suing not just the agency but individual employees as arms of the state — a tactic available because of the ex parte Young doctrine.
“I plug away and try to fight them within the confines,” Schulte said. “I find it really hard when a private employer violates federal law. … But when your government does it, that really bothers me. If you can’t change the law, fight with what you’ve got.”
Suing individuals doesn’t always work, however — often the court will throw out those cases, claiming the individuals are not the employer.
Schulte said his clients are always surprised by the restrictions when it comes to enforcing the ADA.
“My client will come to me and say of course this applies to me,” he said. “Even though (the state’s) been telling you for 20 years that they won’t discriminate against you because of your illness, when they do, you can’t sue them for damages.”
No day in court
Most states have laws that are “essentially a copy of the ADA,” said Matt Dietz, litigation director for the Disability Independence Group in Miami.
That’s how he avoids issues with ADA immunity — he sues under Florida’s version of the act.
But Schulte said it’s not as easy in Virginia. “That’s great, but our state laws are so weak.”
He’s never tried suing under the Virginia Human Rights Act “because it’s a paper tiger. It just doesn’t have teeth.”
Schulte said state attorneys can see immunity as a favor to the taxpayer, saving them from spending money because of something like a rogue employee.
In the two decades since the Garrett decision, a handful of state legislatures, including Maryland and North Carolina, have passed laws waiving immunity in discrimination cases, most with a cap on the money the state would have to pay.
Richard Seymour, a Washington-based attorney and constitutional scholar with the National Employment Lawyers Association, said it’s common for states in the former Confederacy to have fewer protections for workers.
“The failure to waive sovereign immunity, that’s one area,” he said.
It’s not just the ADA. States can also claim sovereign immunity in cases of age discrimination and under the Family and Medical Leave Act.
Congress has managed to use its “power of the purse” to force some state agencies to waive immunity, Seymour said. The Supreme Court has ruled it’s OK for Congress to make waiving immunity a condition for receiving federal funding.
Say you’re a faculty member at a state university — that institution may not be able to claim immunity if it accepts certain forms of federal financial assistance, said Brian East, an attorney with Disability Rights Texas.
People can also sue for non-monetary relief, like for certain accommodations or reinstatement to a job. But several attorneys said it’s just not feasible for them to take on such clients without the possibility of a financial return.
It’s tough for even some civil rights lawyers unaware of the exceptions to figure out when suing is possible or worth it, East said, let alone a disabled employee just fired from a job.
Passaro, the former state trooper, is still pursuing other aspects of his case, but the ADA claim is gone.
“I just want a shot at justice,” he said.
He spent more than a decade testifying in those same courtrooms as a law enforcement officer, he added.
“I want the chance to prove my case, but I can’t do that.”
Owner of Bertini Law P.C.
At work: My practice is substantially dedicated to seeking to remedy workplace discrimination and to ensure employees are treated in a nondiscriminatory manner in the workplace, without regard to race, gender, disability, religion, national origin or sexual orientation. I have been named one of the Top 25 Female Lawyers in Virginia for the last seven consecutive years, one of the Top 50 Female Lawyers in Virginia for seven consecutive years, as well as one of the Top 100 Lawyers in Virginia for the past four years by Super Lawyers Magazine. I have also been named among The Best Lawyers in America in the area of labor and employment law every year since 2010.
Home and family: I am married to Dr. Jack Siegel and have two bicoastal daughters (residing in Santa Monica and Manhattan) and one son, Iggy, who happens to be a sheepdog. I love to travel anywhere but especially the mountains of Colorado where my husband and I explore nature and find our chill ― literally, the only issue with Hampton Roads is its horrible humidity.
Volunteer activities: I am the vice chair of the Virginia Bar Association Employment and Labor Section Council. I am past chair of The Holocaust Commission of Tidewater which helps promote an understanding of the uniqueness and magnitude of the Holocaust, its unfolding stages, and its critical lessons. I’m on the personnel committee at Ohef Sholom temple.
Advice for women in business: It is taken from the Talmud: Do not be daunted by the enormity of the world’s grief; do justly, now; you are not obligated to complete the work, but neither are you free to abandon it.
Professional goal in five years: To diversify my talents to keep it “fresh” while still providing mentorship and opportunities for women in my field.
What really gets under my skin: Nothing gets me going like when people don’t respect others because of differences. It is that vex that propelled me into the work I find so satisfying.
Arlene Klinedinst and Lisa Bertini discuss the benefits of membership in the VBA and its Labor and Employment Law Section. They invite attorneys to the 2019 edition of the Conference on Labor and Employment Law, Sept. 12-14. The event, the 49th annual, will be at Lansdowne Resort in Leesburg, Virginia. Details at www.vba.org/19labor.