How Sovereign Immunity Can Bar Otherwise Valid Claims

Public SectorTwo recent cases illustrate how sovereign immunity limits an employee’s ability to bring a lawsuit. Sovereign immunity is the legal theory that protects the government from being sued, except in limited circumstances. The underlying support for the theory is that the government exists to help its citizens and not to hurt them. 

In the first case, a Milwaukee County employee with a chronic back condition attempted to sue the county and the Wisconsin Department of Health Services—a department of state government—for failing to accommodate her work restrictions in violation of the Americans with Disabilities Act. Whitaker v. Milwaukee County (7th Cir. 2014).

Both the district court and the Seventh Circuit Court of Appeals held for the county, finding that the Department of Health Services supervised Whitaker’s work in a cooperative arrangement with the county and was her “real” employer. But as part of the State of Wisconsin, the Department of Health Services enjoyed sovereign immunity and could not be sued. Meanwhile, the county had no involvement in the decisions leading to the lawsuit, nor did it have the power to override those decisions.

In a final and heroic attempt at a legal Hail Mary, Whitaker attempted to persuade the Seventh Circuit Court of Appeals that the county was liable as a “joint employer.” But the court found that her theory could only apply if each employer exercised so much control over the terms and conditions of her employment that they were both effectively employers. The court found that the employee could not prove the county participated in the decision to deny her leave, and thus joint employment did not exist.

Meanwhile, in Michigan, corrections officers were barred from bringing suit under the Fair Labor Standards Act (FLSA). The Sixth Circuit Court of Appeals ruled that a group of corrections officers could not proceed with FLSA overtime claims against the Michigan Department of Corrections because, as part of state government, the department was entitled to sovereign immunity. Mich. Corr. Org. v. Mich. Dep’t of Corr. (6th Cir. 2014).

Trying a new approach, the officers argued that their entitlement to minimum wage and overtime pay were fundamental rights of national citizenship protected by the privileges and immunities clause of the U.S. Constitution. “No court to our knowledge has deemed wage-and-hour protections fundamental under the Constitution, and we see no reason to be the first,” was the court’s response.

As in Whitaker, the plaintiffs sought any legal basis to prevent their case from being tossed due to sovereign immunity. The officers argued that the Declaratory Judgment Act, a federal law that allows a court to declare “rights and other legal relations” of parties in court, provided a basis for their lawsuit. But this approach also failed, as the Act is not a basis for a lawsuit, but only provides additional remedies to parties who are already in court for a legitimate reason.

As these cases illustrate, because of sovereign immunity, it pays to get the very best legal advice before commencing a lawsuit against a government entity.