The 9 th US Circuit Court of Appeals issued that ruling in a case involving gender and/or racial discrimination complaints by two former assistants to former Alaska Governor Walter Hickel who were fired in April 1994 because of their politically related activities.
Circuit Judge John T. Noonan, writing for the court, ordered that the discrimination complaints filed by Margaret Ward and Lydia Jones with the Equal Opportunity Employment Commission (EEOC) be dismissed because of the sovereign immunity governors enjoy under the U.S. Constitution.
Ward was director of the Office of the Governor and Jones, who has died since the filing of the complaint, was a staff assistant. The EEOC classified the dispute as falling under the Government Employee Rights Act (GERA).
Jones alleged that she had suffered sexual harassment by a male Special Staff Assistant and that she had been paid less than her male counterparts because of her gender and her race (African American). Ward alleged that she had suffered sex discrimination.
According to Noonan’s decision, the EEOC refused to rule on the Governor’s Office constitutional challenge and sent the case back to an administrative law judge who had deferred the constitutional question to the commission a year earlier.
“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,” Noonan wrote. “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.”
Noonan said there was a valid legal reason for the sovereign immunity shield. “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,” the appellate jurist wrote. “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. “
The 9th Circuit decision is here .