Alaska Employment Law

The Court of Appeals held this morning that the EEOC may not prosecute Title VII claims on behalf of several of ex-Governor Hickel’s policymaking assistants, Margaret Ward and Lydia Jones (now deceased).   The Court (Noonan and Wallace) held that the 1991 Government Employee Rights Act was ineffective to waive the State’s sovereign immunity because it lacked a factual showing of discriminatory conduct by governors in the selection of their assistants.

The Court summarized:

In 1972, Congress thought of state policymakers as different from other state employees, and so Congress specifically excluded them from coverage. The exclusion is at least an indication that the hearings did not establish an existing evil in the selection and retention of a governor’s close associates.  Nothing in the record shows that a pattern of gender discrimination as to a governor’s staff, advisers, and policymakers existed in 1991 when GERA was enacted. The absence of such evidence is critical. Very few modern governors, it may fairly be assumed unless the contrary were shown, would intentionally discriminate on the basis of gender or race in choosing key advisers, and very few modern governors who did discriminate would be likely to keep their office. It would be guesswork, unsupported by the record, to suppose that a widespread pattern of intentional discrimination on account of gender or race existed among the fifty governors of the states as they selected staff assisting them in the exercise of their office.

No modern governor could run his government without the assistance of the sort provided in Alaska by the Director of the Governor’s Office in Anchorage and by the Special Staff Assistants. Being a governor is not a one-person job. The governor acts by his policymaking assistants. To treat these assistants as subject to federal legislation is tantamount to holding that the highest elected official in a state is bound by GERA. We do not believe that GERA is a proportionate response to a widespread evil identified as the predicate of this legislation. Accordingly, we grant the Governor’s Office’s appeal and remand to the EEOC with directions to dismiss the suit.

State of Alaska v. EEOC, 2007 WL ________ (9th Cir. Nov. 8, 2007).