The plaintiffs in this case worked for the then- Governor of Alaska.?? Both were fired and filed EEOC complaints alleging race and sex discrimination and retaliation.?? ?The EEOC assigned the cases to administrative law judges. Alaska moved to dismiss on the grounds of sovereign immunity.? ?The EEOC denied the motion. ?Alaska appealed. ?A Ninth Circuit panel ruled in favor of Alaska, but the court, en banc, held there was no 11th Amendment prohibition.

Writing for an eight-judge majority, Judge Kozinski recognized that under U.S. Supreme Court precedent the 11th? Amendment applies to federal administrative proceedings that resemble civil actions and assumed, without deciding, that the EEOC proceedings fell within this category. The majority held, however, that Congress had both unequivocally and permissibly abrogated States? ?11th?? Amendment ?immunity ?in ?enacting the Government Employee Rights Act of 1991. That Act extended Title VII to cover members of elected? officials?? personal? staffs.?? ?It? permitted such employees to recover damages payable by the states.? ?The majority held this was an unequivocal ?waiver ?of ?11th?? amendment immunity.?? ?The standard by which it is determined whether such waivers are constitutional depends on whether the statue provides a remedy for conduct that is actually unconstitutional. Prophylatic legislation reaching state action that is not itself unconstitutional must be proportional and congruent to the harm, but remedies? for? unconstitutional? conduct? do? not have to meet this standard.

The majority held that pay discrimination on the basis of gender and sexual harassment were, per se, violations of the Equal Protection Clause. ?It also held the intentional refusal to redress sexual harassment,? including retaliation against? the victim, was conduct prohibited by Equal Protection Clause.? ?Seven judges held that retaliation for complaining about sexual harassment of another employee violated the First Amendment.? ?The majority held that such conduct did not fall within the? ?employees?? ?official? ?duties,?? and? ?so? ?was protected by the First Amendment.

Judge O?Scannlain disagreed with the majority?s analysis of the First Amendment claim because the fired employee was the governor?s press secretary and could be fired for disloyalty. ?He found that the statute was not congruent and proportional legislation as far as it gave a cause of action for such a claim. ?Three judges dissented on the basis that the Act did not abrogate sovereign immunity because it did not explicitly say it was doing that, and did not define the state as a defendant.

Alaska v. EEOC, 564 F.3d 1062 (9th ?Cir. May 1, 2009) (en banc).