We recently — long after the events underlying the present case — declared that the Equal Protection Clause protects against same-sex discrimination. See Downing v. Bd. of Trustees of the Univ. of Ala., 321 F.3d 1017, 1024 (11th Cir. 2003). Accepting Plaintiffs' allegations as true — that Defendants knew or should have known that Shelnutt constantly touched Plaintiffs and other male employees in the Security Department in a sexually inappropriate manner and constantly made sexual remarks and gestures to Plaintiffs and other male employees — such conduct would violate the Equal Protection Clause.
Second, even if Congress had purported to pass § 106(a) pursuant to its § 5 power, it could not validly do so because conferring a statutory right to bankruptcy does not enforce the Privileges Immunities Clause of the Fourteenth Amendment. The Supreme Court has expressly held that there is no constitutional right to a bankruptcy discharge, United States v. Kras, 409 U.S. 434, 446-47, 93 S.Ct. 631, 638-39, 34 L.Ed.2d 626 (1973), and § 5 does not authorize Congress to create new constitutional rights, Downing v. Bd. of Tr. of Univ. of Ala., 321 F.3d 1017, 1021 (11th Cir. 2003). It follows that Congress could not legislatively elevate bankruptcy to the constitutional status of a privilege or immunity.
We first must determine whether the allegations underlying the plaintiffs' claims against Chief Alfred in his individual capacity establish a violation of the Equal Protection Clause of the Fourteenth Amendment.See id. The Equal Protection Clause ensures a right to be free from intentional discrimination based upon race, see Bass v. Bd. of County Comm'rs, 256 F.3d 1095, 1116 (11th Cir. 2001); Brown v. City of Fort Lauderdale, 923 F.2d 1474, 1478 (11th Cir. 1991), and gender, see Downing v. Bd. of Trs. of the Univ. of Ala., 321 F.3d 1017, 1022 n. 9 (11th Cir. 2003); Parks v. City of Warner Robins, 43 F.3d 609, 616 (11th Cir. 1995). Accordingly, we have recognized an equal protection right to be free from employment discrimination, see, e.g., Thigpen v. Bibb County, 223 F.3d 1231, 1237 (11th Cir. 2000), abrogated on other grounds by Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002), and we have found various race — and gender-based employment decisions by public officials, including those concerning discipline, promotions, transfers, reclassifications, and termination, in violation of that constitutional right, see Alexander v. Fulton County, 207 F.3d 1303, 1313, 1321 (11th Cir. 2000) (affirming a jury verdict of intentional employment discrimination by a black sheriff who made race-based employment decisions concerning white officers "with respect to discipline, promotions, transfers, [and] reclassifications"); Yeldell v. Cooper Green Hosp., Inc., 956 F.2d 1056, 1064 (11th Cir. 1992) (holding that intenti
It is well-established that the Equal Protection Clause protects individuals from sexual harassment committed by a person acting under color of state law. See Downing v. Board of Trustees of the Univ. Of Alabama, 321 F.3d 1017 (11th Cir. 2003). Moreover, the "elements of a sexual harassment claim under Title VII and the Equal Protection Clause are the same — meaning that the employee must prove that the state actor intended to discriminate because of the employee's sex."
It is well settled that there is no sovereign immunity for Title VII claims, including Title VII retaliation claims. Fitzpatrick v. Bitzer, 427 U.S. 445 (1976); Downing v. Bd. of Trs. of the Univ. of Alabama, 321 F.3d 1017 (11th Cir. 2003). Accordingly, Leverette's Title VII retaliation claim survives, except in one respect: because Leverette may obtain full Title VII relief from the Revenue Department, Henniger's presence is unnecessary.