ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (D.C. Civil No. 78-1270)
Before Adams, Rosenn and Higginbotham, Circuit Judges.
On October 6, 1975, the appellant, Chere A. Shawer, brought this civil rights action against the Indiana University of Pennsylvania and four of its officials alleging that the University discriminated against her on the basis of her gender in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e-2000e-17.*fn1 The parties concede that Indiana University ". . . is a branch of the Department of Education of the Commonwealth of Pennsylvania (and that it is) financially supported by the Commonwealth of Pennsylvania."*fn2 She alleged that the University discriminated against her in filling teaching positions in its Department of Philosophy and in making appointments to administrative positions throughout the University. Generally she claims she was denied several positions which were granted to males who were equally or less qualified. Further, she alleges that she was discriminated against because she filed a complaint with the Equal Employment Opportunity Commission.
The University moved to dismiss her complaint on various grounds including the defenses of sovereign immunity and the Eleventh Amendment.*fn3 On September 20, 1978, the district court granted the motion holding that the University was "immune from suit as an integral part of the state government performing essential functions as a state (see National League of Cities v. Usery, 426 U.S. 833, 847, 851, (96 S. Ct. 2465, 49 L. Ed. 2d 245) (1976)."*fn4 Appellant's motion for reconsideration, which relied on Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S. Ct. 2666, 49 L. Ed. 2d 614 (1976), was denied on October 3, 1978. This appeal followed. We reverse.
Prior to 1972, state and local governments had not been subject to the Equal Employment Opportunity Act. By 1972, however, Congress felt that:
The clear intention of the Constitution, embodied in the Thirteenth and Fourteenth Amendments, is to prohibit all forms of discrimination.
Legislation to implement this aspect of the Fourteenth Amendment is long overdue, and the committee believes that an appropriate remedy has been fashioned in the bill. Inclusion of state and local employees among those enjoying the protection of Title VII provides an alternate administrative remedy to the existing prohibition against discrimination perpetuated "under color of state law" as embodied in the Civil Rights Act of 1871, 42 U.S.C. § 1983.
H.R.Rep. No. 238, 92d Cong., 1st Sess. 19 (1971), Reprinted in (1972) U.S.Code Cong. & Admin.News, pp. 2137, 2154.
Despite the clear expression by Congress that its legislative authority was predicated on the Thirteenth and Fourteenth Amendments, the University claims that in the 1972 Amendments to Title VII Congress was attempting to "regulate state government under the commerce clause, U.S. Constitution Article 1, Section 8, Clause 3." Brief for Appellee at 1. The University concedes that Congress may pass legislation pursuant to Section 5 of the Fourteenth Amendment*fn5 to restrict state government but argues that Title VII springs from the Commerce Clause. Further, it argues that when the Supreme Court in National League of Cities v. Usery, 426 U.S. 833, 96 S. Ct. 2465, 49 L. Ed. 2d 245 (1976), overruled Maryland v. Wirtz, 392 U.S. 183, 88 S. Ct. 2017, 20 L. Ed. 2d 1020 (1968), and held unconstitutional the extension of federal minimum wage and maximum hour provisions to state and municipal employees, it "destroyed the basis of all similar federal regulation of state government via the Commerce Clause." Brief for Appellees at 8.
If the University were to be graded for the ingenuity of its argument, it would certainly earn an A. When graded on the substantive merits of its argument, however, the University flunks. The issue is now foreclosed by the Supreme Court's statement in Fitzpatrick v. Bitzer, 427 U.S. 445, 453 n.9 96 S. Ct. 2666, 2670 n.9, 49 L. Ed. 2d 614 (1976), that "(t)here is no dispute that in enacting the 1972 Amendments to Title VII to extend coverage to the States as employers, Congress exercised its power under § 5 of the Fourteenth Amendment." Moreover, the legislative history of the Equal Employment Opportunity Act of 1972 demonstrates clearly that the inclusion of state and local government employees was effected pursuant to Section 5 of the Fourteenth Amendment. We have previously quoted the House Report. The Senate Report is equally emphatic with language prophetically tailored to the instant case:
The Constitution is imperative in its prohibition of discrimination by State and local governments. The Fourteenth Amendment guarantees equal treatment of all citizens by States and their political subdivisions, and the Supreme Court has reinforced this directive by holding that State action which denies equal protection of the laws to any person, even if only indirectly, is in violation of the Fourteenth Amendment. It is clear that the guarantee of equal protection must also extend to such direct action as discriminatory employment practices.
The Committee believes that it is an injustice to provide employees in the private sector with the assistance of an agency of the Federal Government in redressing their grievances while at the same time denying assistance similar to State and local government employees. The last sentence of the Fourteenth Amendment, enabling Congress to enforce the Amendment's guarantees by appropriate legislation is frequently overlooked, and the plain meaning of the Constitution allowed to lapse. The inclusion of State and local government employees within the jurisdiction of Title VII guarantees and protections will ...