The Supreme Court just completed its most consequential term in decades, issuing several blockbuster decisions. By any measure, Torres v. Texas Dep’t of Pub. Safety, No. 20-603, 2022 WL 2334306 (U.S. June 29, 2022) was not among them. Still, Torres is significant for any public employer who employs veterans and is subject to the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). While USERRA was not the hottest topic of this term, public employers should nonetheless be aware of the decision, because it removed a key defense to USERRA suits: sovereign immunity.
USERRA protects veterans from employment discrimination and ensures that they can return to their civilian jobs at the end of their military service. To ensure that injured veterans receive the same disability protections afforded to non-veteran employees, the statute requires employers to “use ‘reasonable efforts’ to accommodate any service-related disability, or find an ‘equivalent’ position” if the “disability prevents the veteran from holding his prior position.” If an employer violates the statute, USERRA gives employees the right to sue their employer—even if that employer is a state entity.
The right of action against state employers clashes with the doctrine of sovereign immunity, which holds that states are immune from suits in state or federal courts unless they consent to be sued. Obviously, a state can waive its sovereign immunity through consent. Additionally, the Supreme Court has identified certain “structural waivers” of sovereign immunity within the structure of the Constitution itself. With these competing issues in mind, we turn to the facts of the Torres case.
Le Roy Torres was an Army Reservist and a Texas state trooper. He was exposed to toxic burn pits during his service in Iraq and later developed constrictive bronchitis. Due to complications from that condition, Torres asked his employer, the Texas Department of Public Safety, to reassign him to a comparable role. The Department allegedly refused. Torres sued the Department in state court for violating USERRA. The Department invoked Texas’ sovereign immunity as a defense and the case was eventually dismissed on those grounds.
The Supreme Court took Torres’ appeal to determine whether USERRA’s private right of action against state employers is constitutional. Justice Breyer, joined by the Chief Justice and Justices Kagan, Kavanaugh, and Sotomayor, held that it is. The majority identified a new structural waiver of state sovereign immunity within Article I of the Constitution. Justice Breyer wrote that “as part of the plan of the Convention, the States waived their immunity under Congress’ Article I power” to raise armies and support a navy. This means that “Congress may legislate at the expense of traditional state sovereignty to raise and support the Armed Forces.” Since Congress enacted USERRA under those powers, it could authorize suits against states for violating that statute, including suits in state courts.
Justice Thomas wrote a lengthy dissent, which Justices Alito, Barrett, and Gorsuch joined. While we do not discuss the dissent here, we commend it to you as a thorough and thoughtful statement of the contrary position.
Torres is important from a broader constitutional perspective because it demonstrates the Supreme Court’s deference to Congress’ war powers and represents a new exception to state sovereign immunity. On a more practical level, Torres also offers a clear message to public employers that they cannot rely on their state’s sovereign immunity to avoid private claims under USERRA.
O’Hagan Meyer’s Labor & Employment practice group will be closely monitoring any developments in this area of the law. If you have any questions or are interested in additional information regarding the subject matter of this alert, please contact Quinn Adams or the O’Hagan Meyer professional who handles your matters.
Authored by: Quinn Adams