If the Eleventh Amendment to the U.S. Constitution bars your suit against a State, maybe the U.S. Government can bring the suit for you.  That’s what happened in EEOC v. Board of Supervisors for the University of Louisiana System. 

Dr. Van McGraw initially filed an age discrimination suit against the University of Louisiana System ("ULS"), after ULS implemented a new policy prohibiting the re-employment of retirees on a regular full-time basis.  McGraw was ultimately unsuccessful.

After McGraw unsuccessfully attempted to be rehired by ULS as an associate dean or as a professor, he filed a discrimination charge with the EEOC.  The EEOC took up his claim and filed an action against ULS seeking injunctive relief and relief for the benefit of McGraw.  ULS filed a motion for summary judgment and a motion to dismiss, arguing that the Eleventh Amendment barred the proceedings.  After the district court denied the motions, ULS filed an interlocutory appeal.

The United States Court of Appeals for the Fifth Circuit initially observed that the Eleventh Amendment protects States only from private lawsuits, not from lawsuits by the federal government.  The Court points out that two other circuit courts have specifically rejected challenges to suits brought by the EEOC under the Age Discrimination Employment Act.  Accordingly, the Court holds that the district court properly rejected the Eleventh Amendment as a bar to the EEOC’s suit.

Notably, the Court also rejected ULS’s argument that the EEOC was circumventing the Eleventh Amendment by seeking relief for the benefit of McGraw.  The Court holds that the EEOC has express enforcement power to seek relief that is victim-specific.  The Court’s opinion may be found here.