Faith C. Whittaker

SCOTUS Rules Discrimination Suits under USERRA against Public Employers Not Barred by Sovereign Immunity

July 5, 2022Articles

SCOTUS Rules Discrimination Suits under USERRA against Public Employers Not Barred by Sovereign Immunity

In a 5-4 decision, the United States Supreme Court held that states and their agencies cannot invoke sovereign immunity as a defense to claims of discrimination brought under the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”)[1] in Torres v. Texas Department of Public Safety.[2]  With this new ruling, public employers should continue to be mindful of the protections that USERRA provides active-duty and veteran employees.

The plaintiff, Le Roy Torres, a member of the Army Reserves, was unable to return to his job as a Texas State Trooper after acquiring service-related disabilities when called to active duty to serve in Iraq. After receiving an honorable discharge, Torres requested that his employer, the Department of Public Safety (“DPS”), reemploy him in a different position as an accommodation for his disability. After refusing to do so, Torres filed suit in Texas state court alleging discrimination against DPS for failing to accommodate his service-related disability as required by USERRA.

Immediately after filing suit, DPS invoked the defense of sovereign immunity to dismiss his claims. After denying this motion, DPS appealed the issue, for which a state appellate court reversed the trial court’s decision. The Texas Supreme Court denied discretionary review. The Supreme Court granted certiorari to review the issue of whether claims arising under USERRA could stand against state entities as a valid Congressional abrogation of sovereign immunity.

Generally, state sovereign immunity may only be waived in limited circumstances. This may occur by consent of the state. It may occur by Congressional abrogation pursuant to the Enforcement Clause of the Fourteenth Amendment. It may also be abrogated due to a “structural waiver” of sovereign immunity. By entering the Union, the states implicitly agreed that “their sovereignty would yield to the exercise of a particular federal power” . . . “the structure of the original Constitution itself” created.

The Supreme Court held that Congress’ enactment of USERRA was a valid exercise of its Article I power to raise and maintain an army. Because such power is contained in the Constitution, by joining the Union, states impliedly consented to Congress’ power to abrogate their sovereign immunity when incidental to effectuating this power. Thus, USERRA’s authorization of private suits against employers also applies to the state employers, too, as a “structural waiver” of sovereign immunity.

The Court noted that it has been hesitant to recognize additional “structural waivers,” and has often limited its holdings when it has previously acknowledged them. However, when the power exercised by Congress was contained within Article I, such as to raise an Army, principles of federal supremacy clearly control and make it apparent that the states consented to waive their sovereign immunity in these areas.

For specific questions concerning USERRA, or any other developments concerning state and federal EEO laws and regulations, please contact your Dinsmore attorney.


[1] See 38 U. S. C. § 4301 et seq. (2018).

[2] Torres v. Texas Department of Public Safety, Slip Op. No. 20-603 (Decided June 29, 2022),