OCTOBER TERM, 1999
Syllabus
KIMEL ET AL.
v. FLORIDA BOARD OF REGENTS ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
ELEVENTH CIRCUIT
No. 98-791. Argued October 13, 1999-Decided January 11,2000*
The Age Discrimination in Employment Act of 1967 (ADEA or Act),
as amended, makes it unlawful for an employer, including a State,
"to fail or refuse to hire or to discharge any individual or
otherwise discriminate against any individual ... because of such
individual's age." 29 U. S. C. § 623(a)(I). Petitioners, three sets
of plaintiffs, filed suit under the ADEA against respondents, their
state employers. Petitioners' suits sought money damages for
respondents' alleged discrimination on the basis of age.
Respondents in all three cases moved to dismiss the suits on the
basis of the Eleventh Amendment. The District Court in one case
granted the motion to dismiss, while in each of the remaining cases
the District Court denied the motion. All three decisions were
appealed and consolidated before the Eleventh Circuit. Petitioner
United States intervened on appeal to defend the constitutionality
of the ADEA's abrogation of the States' Eleventh Amendment
immunity. In a divided panel opinion, the Eleventh Circuit held
that the ADEA does not abrogate the States' Eleventh Amendment
immunity.
Held: Although the ADEA does contain a clear statement of
Congress' intent to abrogate the States' immunity, that abrogation
exceeded Congress' authority under § 5 of the Fourteenth Amendment.
Pp. 72-92.
(a) The ADEA satisfies the simple but stringent test this Court
uses to determine whether a federal statute properly subjects
States to suits by individuals: Congress made its intention to
abrogate the States' immunity unmistakably clear in the language of
the statute.
Dellmuth v.
Muth, 491 U. S. 223, 228. The
ADEA states that its provisions "shall be enforced in accordance
with the powers, remedies, and procedures provided in sections
211(b), 216 (except for subsection (a) thereof), and 217 of this
title, and subsection (c) of this section." 29 U. S. C. § 626(b).
Section 216(b), in turn, authorizes employees to maintain actions
for backpay "against any employer (including a public agency) in
any Federal or State court of competent jurisdiction .... " Section
203(x) defines "public agency" to include "the government of a
State or political
*Together with No. 98-796,
United States v.
Florida
Board of Regents et al., also on certiorari to the same
court.
63
subdivision thereof," and "any agency of ... a State, or a
political subdivision of a State." The text of § 626(b) forecloses
respondents' claim that the existence of an enforcement provision
in the ADEA itself renders Congress' intent to incorporate §
216(b)'s clear statement of abrogation ambiguous. Congress' use of
the phrase "court of competent jurisdiction" in § 216(b) also does
not render its intent to abrogate less than clear. Finally, because
the clear statement inquiry focuses on
what Congress did
enact, not
when it did so, the Court will not infer
ambiguity from the sequence in which a clear textual statement is
added to a statute. Pp. 73-78.
(b) This Court held in
EEOC v.
Wyoming, 460 U. S. 226, 243, that
the ADEA constitutes a valid exercise of Congress' Article I
Commerce Clause power. Congress' powers under Article I, however,
do not include the power to subject States to suit at the hands of
private individuals.
Seminole Tribe of Fla. v.
Florida, 517 U.
S. 44, 72-73. Section 5 of the Fourteenth Amendment does grant
Congress the authority to abrogate the States' sovereign immunity.
Fitzpatrick v.
Bitzer, 427
(c) Section 5 of the Fourteenth Amendment is an affirmative
grant of power to Congress.
City of Boerne v.
Flores,
521 U. S. 507,
517. That power includes the authority both to remedy and to deter
the violation of rights guaranteed thereunder by prohibiting a
somewhat broader swath of conduct, including that which is not
itself forbidden by the Amendment's text. Congress cannot, however,
decree the
substance of the Fourteenth Amendment's
restrictions on the States.
Id., at 519. The ultimate
interpretation and determination of the Amendment's substantive
meaning remains the province of the Judicial Branch. This Court has
held that for remedial legislation to be appropriate under § 5,
"[t]here must be a congruence and proportionality between the
injury to be prevented or remedied and the means adopted to that
end."
Id., at 520. Pp. 80-82.
(d) The ADEA is not "appropriate legislation" under § 5 of the
Fourteenth Amendment. The ADEA's purported abrogation of the
States' sovereign immunity is accordingly invalid. pp. 82-91.
(1) The substantive requirements the ADEA imposes on state and
local governments are disproportionate to any unconstitutional
conduct that conceivably could be targeted by the Act. Age is not a
suspect classification under the Equal Protection Clause. See,
e. g., Gregory v.
Ashcroft, 501 U. S. 452, 470.
States therefore may discriminate on the basis of age without
offending the Fourteenth Amendment if the age classification in
question is rationally related to a legitimate state interest. The
rationality commanded by the Equal Protection Clause does not
require States to match age distinctions and the legitimate
64
Syllabus
interests they serve with razorlike precision. Rather, a State
may rely on age as a proxy for other qualities, abilities, or
characteristics that are relevant to the State's legitimate
interests. That age proves to be an inaccurate proxy in any
individual case is irrelevant. Judged against the backdrop of this
Court's equal protection jurisprudence, it is clear that the ADEA
is "so out of proportion to a supposed remedial or preventive
object that it cannot be understood as responsive to, or designed
to prevent, unconstitutional behavior."
City of Boerne,
supra, at 532. The Act, through its broad restriction on the
use of age as a discriminating factor, prohibits substantially more
state employment decisions and practices than would likely be held
unconstitutional under the applicable equal protection, rational
basis standard. Petitioners' reliance on the "bona fide
occupational qualification" defense of § 623(f)(1) is misplaced.
This Court's decision in
Western Air Lines, Inc. v.
Criswell, 472
U. S. 400, conclusively demonstrates that the defense is a far
cry from the rational basis standard the Court applies to age
discrimination under the Equal Protection Clause. Although it is
true that the existence of the defense makes the ADEA's prohibition
of age discrimination less than absolute, the Act's substantive
requirements nevertheless remain at a level akin to the Court's
heightened scrutiny cases under the Equal Protection Clause. The
exception in § 623(f)(1) that permits employers to engage in
conduct otherwise prohibited by the Act "where the differentiation
is based on reasonable factors other than age" confirms, rather
than disproves, the conclusion that the ADEA extends beyond the
requirements of the Equal Protection Clause. That exception makes
clear that the employer cannot rely on age as a proxy for an
employee's characteristics,
Hazen Paper Co. v.
Biggins, 507
U. S. 604, 611, whereas the Constitution permits such reliance,
see,
e. g., Gregory, supra, at 473. Pp.82-88.
(2) That the ADEA prohibits very little conduct likely to be
held unconstitutional, while significant, does not alone provide
the answer to the § 5 inquiry. Difficult and intractable problems
often require powerful remedies, and this Court has never held that
§ 5 precludes Congress from enacting reasonably prophylactic
legislation. One means by which the Court has determined the
difference between a statute that constitutes an appropriate remedy
and one that attempts to substantively redefine the States' legal
obligations is by examining the legislative record containing the
reasons for Congress' action. See,
e. g., City of Boerne,
supra, at 530-531. A review of the ADEA's legislative record as
a whole reveals that Congress had virtually no reason to believe
that state and local governments were unconstitutionally
discriminating against their employees on the basis of age.
Congress never identified any pattern of age discrimination by the
States, much less any discrimination whatsoever that rose to the
level of constitu-
65
tional violation. That failure confirms that Congress had no
reason to believe that broad prophylactic legislation was necessary
in this field. Pp.88-91.
(e) Today's decision does not signal the end of the line for
employees who find themselves subject to age discrimination at the
hands of their state employers. Those employees are protected by
state age discrimination statutes, and may recover money damages
from their state employers, in almost every State of the Union. Pp.
91-92.
139 F.3d
1426, affirmed.
O'CONNOR, J., delivered the opinion of the Court, Parts I, II,
and IV of which were joined by REHNQUIST, C. J., and SCALIA,
KENNEDY, and THOMAS, JJ., and Part III of which was joined by
REHNQUIST, C. J., and STEVENS, SCALIA, SOUTER, GINSBURG, and
BREYER, JJ. STEVENS, J., filed an opinion dissenting in part and
concurring in part, in which SouTER, GINSBURG, and BREYER, JJ.,
joined,
post, p. 92. THOMAS, J., filed an opinion concurring
in part and dissenting in part, in which KENNEDY, J., joined,
post, p. 99.
Jeremiah A. Collins argued the cause for petitioners in
No. 98-791, and respondents under this Court's Rule 12.6 in support
of petitioner in No. 98-796. With him on the brief were
Robert
H. Chanin, Laurence Gold, David Arendall, Thomas W Brooks, and
Gerald J. Houlihan.
Barbara D. Underwood argued the cause for the United
States, as petitioner in No. 98-796, and respondent under this
Court's Rule 12.6 in support of petitioners in No. 98-791. With her
on the briefs were
Solicitor General Waxman, Acting Assistant
Attorney General Lee, Patricia A. Millett, Jessica Dunsay
Silver, and
Seth M. Galanter.
Jeffrey S.
Sutton argued the cause for state
respondents in both cases. With him on the brief were
Gregory G.
Katsas, Robert A. Butterworth, Attorney
General of Florida,
Louis F. Hubener and
Amelia
Beisner, Assistant Attorneys General,
Bill Pryor,
Attorney General of Alabama, and
Alice Ann Byrne and
Jack
Park, Assistant Attorneys General.t
t
Laurie A. McCann and
Melvin Radowitz filed a
brief for the American Association of Retired Persons et al. as
amici curiae urging reversal.
Briefs of
amici curiae urging affirmance were filed for
the State of Ohio et al. by
Betty D. Montgomery, Attorney
General of Ohio,
Edward B.
66
JUSTICE O'CONNOR delivered the opinion of the Court. The Age
Discrimination in Employment Act of 1967 (ADEA or Act), 81 Stat.
602, as amended, 29 U. S. C. § 621
et seq. (1994 ed. and
Supp. III), makes it unlawful for an employer, including a State,
"to fail or refuse to hire or to discharge any individual or
otherwise discriminate against any individual ... because of such
individual's age." 29 U. S. C. § 623(a)(1). In these cases, three
sets of plaintiffs filed suit under the Act, seeking money damages
for their state employers' alleged discrimination on the basis of
age. In each case, the state employer moved to dismiss the suit on
the basis of its Eleventh Amendment immunity. The District Court in
one case granted the motion to dismiss, while in each of the
remaining cases the District Court denied the motion. Appeals in
the three cases were consolidated before the Court of Appeals for
the Eleventh Circuit, which held that the ADEA does not validly
abrogate the States' Eleventh Amendment immunity. In these cases,
we are asked to consider whether the ADEA contains a clear
Foley, State Solicitor,
Stephen P. Carney,
Associate Solicitor, and
Matthew J. Lampke,
Assistant Solicitor,
Paul G.
Summers, Attorney
General of Tennessee, and
Michael E. Moore, Solicitor
General, and by the Attorneys General for their respective States
as follows:
Richard Blumenthal of Connecticut,
M. Jane
Brady of Delaware,
Thurbert E. Baker of Georgia,
Earl
I. Anzai of Hawaii,
Alan G.
Lance of Idaho,
Carla J. Stoval of Kansas,
Richard P.
Ieyoub of Louisiana,
Andrew Ketterer of Maine,
Jennifer M. Granholm of Michigan,
Mike Moore of
Mississippi,
Joseph P. Mazurek of Montana,
Don
Stenberg of Nebraska,
Frankie Sue Del Papa of Nevada,
John J. Farmer, Jr., of New Jersey,
W A.
Drew Edmondson of Oklahoma,
Hardy Myers of Oregon,
D.
Michael Fisher of Pennsylvania,
Sheldon Whitehouse of
Rhode Island,
Jan Graham of Utah,
William H. Sorrell
of Vermont, and
Mark L. Earley of Virginia; for the
Pennsylvania House of Representatives, Republican Caucus, by
David R. Fine and
John P. Krill, Jr.; and for the
Pacific Legal Foundation by
Robin L. Rivett and
Frank A.
Shepherd.
Briefs of
amici curiae were filed for the Coalition for
Local Sovereignty by
Kenneth B. Clark; and for the English
Language Advocates by
Barnaby W Zall.
67
statement of Congress' intent to abrogate the States' Eleventh
Amendment immunity and, if so, whether the ADEA is a proper
exercise of Congress' constitutional authority. We conclude that
the ADEA does contain a clear statement of Congress' intent to
abrogate the States' immunity, but that the abrogation exceeded
Congress' authority under § 5 of the Fourteenth Amendment.
I A
The ADEA makes it unlawful for an employer "to fail or refuse to
hire or to discharge any individual or otherwise discriminate
against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such
individual's age." 29 U. S. C. § 623(a)(1). The Act also provides
several exceptions to this broad prohibition. For example, an
employer may rely on age where it "is a bona fide occupational
qualification reasonably necessary to the normal operation of the
particular business." § 623(f)(1). The Act also permits an employer
to engage in conduct otherwise prohibited by § 623(a)(1) if the
employer's action "is based on reasonable factors other than age,"
§ 623(f)(1), or if the employer "discharge[s] or otherwise
discipline[s] an individual for good cause," § 623(f)(3). Although
the Act's prohibitions originally applied only to individuals "at
least forty years of age but less than sixtyfive years of age," 81
Stat. 607, 29 U. S. C. § 631 (1964 ed., Supp. III), Congress
subsequently removed the upper age limit, and the Act now covers
individuals age 40 and over, 29 U. S. C. § 631(a). Any person
aggrieved by an employer's violation of the Act "may bring a civil
action in any court of competent jurisdiction" for legal or
equitable relief. § 626(c)(1). Section 626(b) also permits
aggrieved employees to enforce the Act through certain provisions
of the Fair Labor Standards Act of 1938 (FLSA), and the ADEA
68
specifically incorporates § 16(b) of the FLSA, 29 U. S. C. §
216(b).
Since its enactment, the ADEA's scope of coverage has been
expanded by amendment. Of particular importance to these cases is
the Act's treatment of state employers and employees. When first
passed in 1967, the ADEA applied only to private employers. See 29
U. S. C. § 630(b) (1964 ed., Supp. III) (defining term "employer"
to exclude "the United States, a corporation wholly owned by the
Government of the United States, or a State or political
subdivision thereof"). In 1974, in a statute consisting primarily
of amendments to the FLSA, Congress extended application of the
ADEA's substantive requirements to the States. Fair Labor Standards
Amendments of 1974 (1974 Act), § 28, 88 Stat. 74. Congress
accomplished that expansion in scope by a simple amendment to the
definition of "employer" contained in 29 U. S. C. § 630(b): "The
term [employer] also means ... a State or political subdivision of
a State and any agency or instrumentality of a State or a political
subdivision of a State .... " Congress also amended the ADEA's
definition of "employee," still defining the term to mean "an
individual employed by any employer," but excluding elected
officials and appointed policymakers at the state and local levels.
§ 630(f). In the same 1974 Act, Congress amended 29 U. S. C. §
216(b), the FLSA enforcement provision incorporated by reference
into the ADEA. 88 Stat. 61. Section 216(b) now permits an
individual to bring a civil action "against any employer (including
a public agency) in any Federal or State court of competent
jurisdiction." Section 203(x) defines "[p]ublic agency" to include
"the government of a State or political subdivision thereof," and
"any agency of ... a State, or a political subdivision of a State."
Finally, in the 1974 Act, Congress added a provision prohibiting
age discrimination generally in employment at the Federal
Government. 88 Stat. 74, 29 U. S. C. § 633a (1994 ed. and Supp.
III). Under the current ADEA,
69
mandatory age limits for law enforcement officers and
firefighters-at federal, state, and local levels-are exempted from
the statute's coverage. 5 U. S. C. §§ 3307(d), (e); 29 U. S. C. §
623(j) (1994 ed., Supp. III).
B
In December 1994, Roderick MacPherson and Marvin Narz, ages 57
and 58 at the time, filed suit under the ADEA against their
employer, the University of Montevallo, in the United States
District Court for the Northern District of Alabama. In their
complaint, they alleged that the university had discriminated
against them on the basis of their age, that it had retaliated
against them for filing discrimination charges with the Equal
Employment Opportunity Commission (EEOC), and that its College of
Business, at which they were associate professors, employed an
evaluation system that had a disparate impact on older faculty
members. MacPherson and N arz sought declaratory and injunctive
relief, backpay, promotions to full professor, and compensatory and
punitive damages. App.21-25. The University of Montevallo moved to
dismiss the suit for lack of subject matter jurisdiction,
contending it was barred by the Eleventh Amendment. No party
disputes the District Court's holding that the university is an
instrumentality of the State of Alabama. On September 9, 1996, the
District Court granted the university's motion.
MacPherson
v.
University of Montevallo, Civ. Action No. 94-AR-2962-S
(ND Ala., Sept. 9, 1996), App. to Pet. for Cert. in No. 98-796, pp.
63a-71a. The court determined that, although the ADEA contains a
clear statement of Congress' intent to abrogate the States'
Eleventh Amendment immunity, Congress did not enact or extend the
ADEA under its Fourteenth Amendment § 5 enforcement power.
Id., at 67a, 69a-70a. The District Court therefore held that
the ADEA did not abrogate the States' Eleventh Amendment immunity.
Id., at 71a.
70
In April 1995, a group of current and former faculty and
librarians of Florida State University, including J. Daniel Kimel,
Jr., the named petitioner in one of today's cases, filed suit
against the Florida Board of Regents in the United States District
Court for the Northern District of Florida. Complaint and Demand
for Jury Trial in No. 95-CV -40194, 1 Record, Doc. No.2. The
complaint was subsequently amended to add as plaintiffs current and
former faculty and librarians of Florida International University.
App. 41. The plaintiffs, all over age 40, alleged that the Florida
Board of Regents refused to require the two state universities to
allocate funds to provide previously agreed upon market adjustments
to the salaries of eligible university employees. The plaintiffs
contended that the failure to allocate the funds violated both the
ADEA and the Florida Civil Rights Act of 1992, Fla. Stat. § 760.01
et seq. (1997 and Supp. 1998), because it had a disparate
impact on the base pay of employees with a longer record of
service, most of whom were older employees. App. 42-45. The
plaintiffs sought backpay, liquidated damages, and permanent salary
adjustments as relief.
Id., at 46. The Florida Board of
Regents moved to dismiss the suit on the grounds of Eleventh
Amendment immunity. On May 17, 1996, the District Court denied the
motion, holding that Congress expressed its intent to abrogate the
States' Eleventh Amendment immunity in the ADEA, and that the ADEA
is a proper exercise of congressional authority under the
Fourteenth Amendment. No. TCA 95-40194-MMP (ND Fla.), App. to Pet.
for Cert. in No. 98-796, pp. 57a-62a.
In May 1996, Wellington Dickson filed suit against his employer,
the Florida Department of Corrections, in the United States
District Court for the Northern District of Florida. Dickson
alleged that the state employer failed to promote him because of
his age and because he had filed grievances with respect to the
alleged acts of age discrimination. Dickson sought injunctive
relief, backpay, and com-
71
pensatory and punitive damages. App. 83-109. The Florida
Department of Corrections moved to dismiss the suit on the grounds
that it was barred by the Eleventh Amendment. The District Court
denied that motion on November 5, 1996, holding that Congress
unequivocally expressed its intent to abrogate the States' Eleventh
Amendment immunity in the ADEA, and that Congress had authority to
do so under § 5 of the Fourteenth Amendment.
Dickson v.
Florida Dept. of Corrections, No. 5:96cv207-RH (ND Fla.),
App. to Pet. for Cert. in No. 98-796, pp. 72a-76a.
The plaintiffs in the
MacPherson case, and the state
defendants in the
Kimel and
Dickson cases, appealed
to the Court of Appeals for the Eleventh Circuit. The United States
also intervened in all three cases to defend the ADEA's abrogation
of the States' Eleventh Amendment immunity. The Court of Appeals
consolidated the appeals and, in a divided panel opinion, held that
the ADEA does not abrogate the States' Eleventh Amendment immunity.
139 F.3d
1426, 1433 (1998). Judge Edmondson, although stating that he
believed "good reason exists to doubt that the ADEA was (or could
have been properly) enacted pursuant to the Fourteenth Amendment,"
id., at 1430, rested his opinion on the ADEA's lack of
unmistakably clear language evidencing Congress' intent to abrogate
the States' sovereign immunity.
Ibid. He noted that the ADEA
lacks any reference to the Eleventh Amendment or to the States'
sovereign immunity and does not contain, in one place, a plain
statement that States can be sued by individuals in federal court.
Id., at 1430-1431. Judge Cox concurred in Judge Edmondson's
ultimate conclusion that the States are immune from ADEA suits
brought by individuals in federal court.
Id., at 1444. Judge
Cox, however, chose not to address "the thorny issue of Congress's
intent,"
id., at 1445, but instead found that Congress lacks
the power under § 5 of the Fourteenth Amendment to abrogate the
States' Eleventh Amendment immunity under the ADEA.
Ibid.
72
He concluded that "the ADEA confers rights far more extensive
than those the Fourteenth Amendment provides,"
id., at 1446,
and that "Congress did not enact the ADEA as a proportional
response to any widespread violation of the elderly's
constitutional rights."
Id., at 1447. Chief Judge Hatchett
dissented from both grounds.
Id., at 1434.
We granted certiorari, 525 U. S. 1121 (1999), to resolve a
conflict among the Federal Courts of Appeals on the question
whether the ADEA validly abrogates the States' Eleventh Amendment
immunity. Compare
Cooper v.
New York State Office of
Mental Health, 162 F.3d
770 (CA2 1998) (holding that the ADEA does validly
abrogate the States' Eleventh Amendment immunity), cert. pending,
No. 98-1524;
Migneault v.
Peck, 158
F.3d 1131 (CAlO 1998) (same), cert. pending, No. 98-1178;
Coger v.
Board of Regents of State of Tenn.,
154 F.3d
296 (CA6 1998) (same), cert. pending, No. 98-821;
Keeton v.
University of Nev. System, 150 F.3d
1055 (CA9 1998) (same);
Scott v.
University of
Miss., 148 F.3d
493 (CA5 1998) (same); and
Goshtasby v.
Board
of Trustees of Univ. of Ill., 141 F.3d
761 (CA7 1998) (same), with
Humenansky v.
Regents of Univ. of Minn., 152 F. 3d
822 (CA8 1998)
(holding that the ADEA does not validly abrogate the States'
Eleventh Amendment immunity), cert. pending, No. 98-1235; and
139 F.3d
1426 (CAll 1998) (case below).
II
The Eleventh Amendment states:
"The Judicial power of the United States shall not be construed
to extend to any suit in law or equity, commenced or prosecuted
against one of the United States by Citizens of another State, or
by Citizens or Subjects of any Foreign State."
Although today's cases concern suits brought by citizens against
their own States, this Court has long "'understood the Eleventh
Amendment to stand not so much for what it
73
says, but for the presupposition ... which it confirms.'"
Seminole Tribe of Fla. v.
Florida, 517 U. S. 44, 54 (1996)
(quoting
Blatchford v.
Native Village of Noatak,
501 U. S. 775,
779 (1991)). Accordingly, for over a century now, we have made
clear that the Constitution does not provide for federal
jurisdiction over suits against nonconsenting States.
College
Savings Bank v.
Florida Prepaid Postsecondary Ed. Expense
Bd., 527 U. S.
666, 669-670 (1999);
Seminole Tribe, supra, at 54; see
Hans v.
Louisiana, 134 U. S. 1, 15 (1890).
Petitioners nevertheless contend that the States of Alabama and
Florida must defend the present suits on the merits because
Congress abrogated their Eleventh Amendment immunity in the ADEA.
To determine whether petitioners are correct, we must resolve two
predicate questions: first, whether Congress unequivocally
expressed its intent to abrogate that immunity; and second, if it
did, whether Congress acted pursuant to a valid grant of
constitutional authority.
Seminole Tribe, supra, at 55.
III
To determine whether a federal statute properly subjects States
to suits by individuals, we apply a "simple but stringent test:
'Congress may abrogate the States' constitutionally secured
immunity from suit in federal court only by making its intention
unmistakably clear in the language of the statute.'"
Dellmuth v.
Muth, 491 U. S. 223, 228 (1989)
(quoting
Atascadero State Hospital v.
Scanlon,
473 U. S. 234,242
(1985)). We agree with petitioners that the ADEA satisfies that
test. The ADEA states that its provisions "shall be enforced in
accordance with the powers, remedies, and procedures provided in
sections 211(b), 216 (except for subsection (a) thereof), and 217
of this title, and subsection (c) of this section." 29 U. S. C. §
626(b). Section 216(b), in turn, clearly provides for suits by
individuals against States. That provision authorizes employees to
maintain actions for backpay "against any employer (including a
public agency)
74
in any Federal or State court of competent jurisdiction .... "
Any doubt concerning the identity of the "public agency" defendant
named in § 216(b) is dispelled by looking to § 203(x), which
defines the term to include "the government of a State or political
subdivision thereof," and "any agency of ... a State, or a
political subdivision of a State." Read as a whole, the plain
language of these provisions clearly demonstrates Congress' intent
to subject the States to suit for money damages at the hands of
individual employees.
Respondents maintain that these statutory sections are less than
"unmistakably clear" for two reasons. Brief for Respondents 15.
First, they note that the ADEA already contains its own enforcement
provision, § 626(c)(1), which provides in relevant part that "[a]ny
person aggrieved may bring a civil action in any court of competent
jurisdiction for such legal or equitable relief as will effectuate
the purposes of this chapter." Respondents claim that the existence
of § 626(c)(1) renders Congress' intent to incorporate the clear
statement of abrogation in § 216(b), the FLSA's enforcement
provision, ambiguous. The text of the ADEA forecloses respondents'
argument. Section 626(b) clearly states that the ADEA "shall be
enforced in accordance with the powers, remedies, and procedures
provided in [section 216(b)]
and subsection (c) of this
section." § 626(b) (emphasis added). In accord with that statutory
language, we have explained repeatedly that § 626(b) incorporates
the FLSA's enforcement provisions, and that those remedial options
operate together with § 626(c)(1). See
McKennon v.
Nashville Banner Publishing Co., 513 U. S. 352, 357 (1995)
("[The ADEA's] remedial provisions incorporate by reference the
provisions of the Fair Labor Standards Act of 1938");
Hoffmann-La Roche Inc. v.
Sperling, 493 U. S. 165, 167 (1989)
("[T]he ADEA incorporates enforcement provisions of the Fair Labor
Standards Act of 1938, and provides that the ADEA shall be enforced
using certain of the powers, remedies, and procedures of the FLSA"
(citation omitted));
Lorillard v.
Pons, 434 U. S.
75
575, 582 (1978) ("[B]ut for those changes Congress expressly
made [in the ADEA], it intended to incorporate fully the remedies
and procedures of the FLSA"). Respondents' argument attempts to
create ambiguity where, according to the statute's text and this
Court's repeated interpretations thereof, there is none.
Respondents next point to the phrase "court of competent
jurisdiction" in § 216(b), and contend that it makes Congress'
intent to abrogate less than clear. Relying on our decision in the
distinct context of a state waiver of sovereign immunity,
Kennecott Copper Corp. v.
State Tax Comm'n, 327 U. S. 573 (1946),
respondents maintain that perhaps Congress simply intended to
permit an ADEA suit against a State only in those cases where the
State previously has waived its Eleventh Amendment immunity to
suit. We disagree. Our decision in
Kennecott Copper must be
read in context. The petitioner there contended that Utah had
waived its Eleventh Amendment immunity to suit in federal court
through a state statute that authorized taxpayers to pay their
taxes under protest and "'thereafter bring an action in any court
of competent jurisdiction for the return thereof .... '"
Id., at 575, n. 1 (quoting Utah Code Ann. § 80-5-76 (1943)).
Although the statute undoubtedly provided for suit against the
State of Utah in its own courts, we held that the statute fell
short of the required "clear declaration by a State of its consent
to be sued in the
federal courts." 327 U. S., at 579-580
(emphasis added). Section 216(b) contains no such ambiguity. The
statute authorizes employee suits against States "in any
Federal
or State court of competent jurisdiction." § 216(b) (emphasis
added). That language eliminates the ambiguity identified in
Kennecott Copper-whether Utah intended to permit suits
against the sovereign in state court only, or in state and federal
court. Under § 216(b), the answer to that question is clear-actions
may be maintained in federal and state court. That choice of
language sufficiently indicates Congress' in-
76
tent, in the ADEA, to abrogate the States' Eleventh Amendment
immunity to suits by individuals.
Although JUSTICE THOMAS concedes in his opinion that our cases
have never required that Congress make its clear statement in a
single section or in statutory provisions enacted at the same time,
post, at 104-105 (opinion concurring in part and dissenting
in part), he concludes that the ADEA lacks the requisite clarity
because of the "sequence of events" surrounding the enactment and
amendment of §§ 216(b) and 626(b),
post, at 102. JUSTICE
THOMAS states that he is unwilling to assume that when Congress
amended § 216(b) in 1974, it recognized the consequences that
amendment would have for the ADEA.
Ibid. We respectfully
disagree. The fact that Congress amended the ADEA itself in the
same 1974 Act makes it more than clear that Congress understood the
consequences of its actions. Indeed, Congress amended § 216(b) to
provide for suits against States in precisely the same Act in which
it extended the ADEA's substantive requirements to the States. See
1974 Act, § 6(d)(1), 88 Stat. 61 (amending § 216(b)); § 28(a), 88
Stat. 74 (extending ADEA to the States). Those provisions confirm
for us that the effect on the ADEA of the § 216(b) amendment was
not mere happenstance. In any event, we have never held that
Congress must speak with different gradations of clarity depending
on the specific circumstances of the relevant legislation
(e.
g., amending incorporated provisions as opposed to enacting a
statute for the first time). The clear statement inquiry focuses on
what Congress did enact, not
when it did so. We will
not infer ambiguity from the sequence in which a clear textual
statement is added to a statute.
We also disagree with JUSTICE THOMAS' remaining points, see
post, at 105-109. Although the ADEA does contain its own
enforcement provision in § 626(c)(1), the text of § 626(b)
acknowledges § 626(c)(1)'s existence and makes clear that the ADEA
also incorporates § 216(b), save as indicated
77
otherwise in § 626(b)'s proviso. See § 626(b) ("The provisions
of this chapter shall be enforced in accordance with the powers,
remedies, and procedures provided in sectio[n] ... 216 (except for
subsection (a) thereof) ...
and subsection (c) of this
section" (emphasis added)). We fail to see how the
interpretation suggested by JUSTICE THOMAS, under which § 626(b)
would carry over only those § 216(b) "embellishments" not already
provided for in § 626(c)(1)
except for the authorization of
suits against States, see
post, at 106, could be a
permissible one. To accept that interpretation, for example, one
would have to conclude that Congress intended to incorporate only
the portion of § 216(b)'s third sentence that provides for
collective actions, but not the part of the very same sentence that
authorizes suits against States. See § 216(b) ("An action to
recover the liability prescribed in either of the preceding
sentences may be maintained against any employer (including a
public agency) in any Federal or State court of competent
jurisdiction by anyone or more employees for and in behalf of
himself or themselves and other employees similarly situated").
JUSTICE THOMAS also concludes that § 216(b) itself fails the
clear statement test.
Post, at 108-109. As we have already
explained, the presence of the word "competent" in § 216(b) does
not render that provision less than "unmistakably clear." See
supra, at 75-76. JUSTICE THOMAS' reliance on a single phrase
from our decision in
Employees of Dept. of Public Health and
Welfare of Mo. v.
Department of Public Health and Welfare of
Mo., 411 U. S.
279 (1973), see
post, at 108, as support for the
contrary proposition is puzzling, given his separate argument with
respect to § 6(d)(2)(A) of the 1974 Act. Crucial to JUSTICE THOMAS'
argument on that front is his acknowledgment that Congress
did intend in the 1974 amendments to permit "FLSA plaintiffs
who had been frustrated by state defendants' invocation of Eleventh
Amendment immunity under
Employees to avail themselves of
the newly amended § 216(b)."
Post, at 103;
78
see also
post, at 108-109. We agree with the implication
of that statement: In response to
Employees, Congress
clearly intended through "the newly amended § 216(b)" to abrogate
the States' sovereign immunity. In light of our conclusion that
Congress unequivocally expressed its intent to abrogate the States'
Eleventh Amendment immunity, we now must determine whether Congress
effectuated that abrogation pursuant to a valid exercise of
constitutional authority.
IV A
This is not the first time we have considered the constitutional
validity of the 1974 extension of the ADEA to state and local
governments. In
EEOC v.
Wyoming, 460 U. S. 226, 243
(1983), we held that the ADEA constitutes a valid exercise of
Congress' power "[t]o regulate Commerce ... among the several
States," Art. I, § 8, cl. 3, and that the Act did not transgress
any external restraints imposed on the commerce power by the Tenth
Amendment. Because we found the ADEA valid under Congress' Commerce
Clause power, we concluded that it was unnecessary to determine
whether the Act also could be supported by Congress' power under §
5 of the Fourteenth Amendment. 460 U. S., at 243. But see
id., at 259-263 (Burger, C. J., dissenting). Resolution of
today's cases requires us to decide that question.
In
Semino le Tribe, we held that Congress lacks power
under Article I to abrogate the States' sovereign immunity. 517 U.
S., at 72-73. "Even when the Constitution vests in Congress
complete lawmaking authority over a particular area, the Eleventh
Amendment prevents congressional authorization of suits by private
parties against unconsenting States."
Id., at 72. Last Term,
in a series of three decisions, we reaffirmed that central holding
of
Seminole Tribe. See
College Savings Bank, 527 U.
S., at 672;
Florida Prepaid Postsecondary Ed. Expense Bd. v.
College Savings Bank,
79
527 U. S. 627,
636 (1999);
Alden v.
Maine, 527 U. S. 706, 712
(1999). Indeed, in
College Savings Bank, we rested our
decision to overrule the constructive waiver rule of
Parden
v.
Terminal R. Co. of Ala. Docks Dept., 377 U. S. 184 (1964), in
part, on our
Seminole Tribe holding. See
College Savings
Bank, supra, at 683 ("Recognizing a congressional power to
exact constructive waivers of sovereign immunity through the
exercise of Article I powers would also, as a practical matter,
permit Congress to circumvent the antiabrogation holding of
Seminole Tribe"). Under our firmly established precedent
then, if the ADEA rests solely on Congress' Article I commerce
power, the private petitioners in today's cases cannot maintain
their suits against their state employers.
JUSTICE STEVENS disputes that well-established precedent again.
Compare
post, p. 92 (opinion dissenting in part and
concurring in part), with
Alden, supra, p. 760 (SOUTER, J.,
dissenting);
College Savings Bank, 527 U. S., at 692, n. 2
(STEVENS, J., dissenting);
id., at 699-705 (BREYER, J.,
dissenting);
Florida Prepaid, supra, at 664-665 (STEVENS,
J., dissenting);
Seminole Tribe, 517 U. S., at 76-100
(STEVENS, J., dissenting);
id., at 100-185 (SOUTER, J.,
dissenting). In
Alden, we explained that, "[a]lthough the
sovereign immunity of the States derives at least in part from the
commonlaw tradition, the structure and history of the Constitution
make clear that the immunity exists today by constitutional
design." 527 U. S., at 733. For purposes of to day's decision, it
is sufficient to note that we have on more than one occasion
explained the substantial reasons for adhering to that
constitutional design. See
id., at 712-754;
College
Savings Bank, supra, at 669-670, 687-691;
Seminole Tribe,
supra, at 54-55, 59-73;
Pennsylvania v.
Union Gas
Co., 491 U. S. 1, 30-42 (1989) (SCALIA, J., concurring in part
and dissenting in part). Indeed, the present dissenters' refusal to
accept the validity and natural import of decisions like
Hans, rendered over a full century ago by this Court, makes
it dif-
80
ficult to engage in additional meaningful debate on the place of
state sovereign immunity in the Constitution. Compare
Hans,
134 U. S., at 10, 14-16, with
post, at 97 (STEVENS, J.,
dissenting in part and concurring in part). Today we adhere to our
holding in
Seminole Tribe: Congress' powers under Article I
of the Constitution do not include the power to subject States to
suit at the hands of private individuals.
Section 5 of the Fourteenth Amendment, however, does grant
Congress the authority to abrogate the States' sovereign immunity.
In
Fitzpatrick v.
Bitzer, 427 U. S. 445 (1976), we
recognized that "the Eleventh Amendment, and the principle of state
sovereignty which it embodies, are necessarily limited by the
enforcement provisions of § 5 of the Fourteenth Amendment."
Id., at 456 (citation omitted). Since our decision in
Fitzpatrick, we have reaffirmed the validity of that
congressional power on numerous occasions. See,
e. g., College
Savings Bank, supra, at 670;
Florida Prepaid, supra, at
636-637;
Alden, supra, at 756;
Seminole Tribe, supra,
at 59. Accordingly, the private petitioners in these cases may
maintain their ADEA suits against the States of Alabama and Florida
if, and only if, the ADEA is appropriate legislation under § 5.
B
The Fourteenth Amendment provides, in relevant part:
"Section 1. ... No State shall make or enforce any law which
shall abridge the privileges or immunities of citizens of the
United States; nor shall any State deprive any person of life,
liberty, or property, without due process of law; nor deny to any
person within its jurisdiction the equal protection of the
laws."
"Section 5. The Congress shall have power to enforce, by
appropriate legislation, the provisions of this article."
As we recognized most recently in
City of Boerne v.
Flores, 521 U.
S. 507, 517 (1997), § 5 is an affirmative grant of power to
Congress. "It is for Congress in the first instance to
81
'determin[e] whether and what legislation is needed to secure
the guarantees of the Fourteenth Amendment,' and its conclusions
are entitled to much deference."
Id., at 536 (quoting
Katzenbach v.
Morgan, 384 U. S. 641, 651
(1966)). Congress' § 5 power is not confined to the enactment of
legislation that merely parrots the precise wording of the
Fourteenth Amendment. Rather, Congress' power "to enforce" the
Amendment includes the authority both to remedy and to deter
violation of rights guaranteed thereunder by prohibiting a somewhat
broader swath of conduct, including that which is not itself
forbidden by the Amendment's text. 521 U. S., at 518.
Nevertheless, we have also recognized that the same language
that serves as the basis for the affirmative grant of congressional
power also serves to limit that power. For example, Congress cannot
"decree the
substance of the Fourteenth Amendment's
restrictions on the States .... It has been given the power 'to
enforce,' not the power to determine
what constitutes a
constitutional violation."
Id., at 519 (emphases added). The
ultimate interpretation and determination of the Fourteenth
Amendment's substantive meaning remains the province of the
Judicial Branch.
Id., at 536. In
City of Boerne, we
noted that the determination whether purportedly prophylactic
legislation constitutes appropriate remedial legislation, or
instead effects a substantive redefinition of the Fourteenth
Amendment right at issue, is often difficult.
Id., at
519-520. The line between the two is a fine one. Accordingly,
recognizing that "Congress must have wide latitude in determining
where [that line] lies," we held that "[t]here must be a congruence
and proportionality between the injury to be prevented or remedied
and the means adopted to that end."
Id., at 520.
In
City of Boerne, we applied that "congruence and
proportionality" test and held that the Religious Freedom
Restoration Act of 1993 (RFRA) was not appropriate legislation
under § 5. We first noted that the legislative record contained
very little evidence of the unconstitutional conduct
82
purportedly targeted by RFRA's substantive prOVlSlons. Rather,
Congress had uncovered only "anecdotal evidence" that, standing
alone, did not reveal a "widespread pattern of religious
discrimination in this country."
Id., at 531. Second, we
found that RFRA is "so out of proportion to a supposed remedial or
preventive object that it cannot be understood as responsive to, or
designed to prevent, unconstitutional behavior."
Id., at
532.
Last Term, we again had occasion to apply the "congruence and
proportionality" test. In
Florida Prepaid, we considered the
validity of the Eleventh Amendment abrogation provision in the
Patent and Plant Variety Protection Remedy Clarification Act
(Patent Remedy Act). We held that the statute, which subjected
States to patent infringement suits, was not appropriate
legislation under § 5 of the Fourteenth Amendment. The Patent
Remedy Act failed to meet our congruence and proportionality test
first because "Congress identified no pattern of patent
infringement
by the States, let alone a pattern of
constitutional violations." 527 U. S., at 640 (emphasis added).
Moreover, because it was unlikely that many of the acts of patent
infringement affected by the statute had any likelihood of being
unconstitutional, we concluded that the scope of the Act was out of
proportion to its supposed remedial or preventive objectives.
Id., at 647. Instead, "[t]he statute's apparent and more
basic aims were to provide a uniform remedy for patent infringement
and to place States on the same footing as private parties under
that regime."
Id., at 647-648. While we acknowledged that
such aims may be proper congressional concerns under Article I, we
found them insufficient to support an abrogation of the States'
Eleventh Amendment immunity after
Seminole Tribe. Florida
Prepaid, supra, at 648.
C
Applying the same "congruence and proportionality" test in these
cases, we conclude that the ADEA is not "appro-
83
priate legislation" under § 5 of the Fourteenth Amendment.
Initially, the substantive requirements the ADEA imposes on state
and local governments are disproportionate to any unconstitutional
conduct that conceivably could be targeted by the Act. We have
considered claims of unconstitutional age discrimination under the
Equal Protection Clause three times. See
Gregory v.
Ashcroft, 501
U. S. 452 (1991);
Vance v.
Bradley, 440 U. S. 93 (1979);
Massachusetts Bd. of Retirement v.
Murgia, 427 U. S. 307 (1976)
(per curiam). In all three cases, we held that the age
classifications at issue did not violate the Equal Protection
Clause. See
Gregory, supra, at 473;
Bradley, supra,
at 102-103, n. 20, 108-112;
Murgia, supra, at 317. Age
classifications, unlike governmental conduct based on race or
gender, cannot be characterized as "so seldom relevant to the
achievement of any legitimate state interest that laws grounded in
such considerations are deemed to reflect prejudice and antipathy."
Cleburne v.
Cleburne Living Center, Inc., 473 U. S. 432, 440
(1985). Older persons, again, unlike those who suffer
discrimination on the basis of race or gender, have not been
subjected to a "'history of purposeful unequal treatment.'"
Murgia, supra, at 313 (quoting
San Antonio Independent
School Dist. v.
Rodriguez, 411 U. S. 1, 28 (1973)).
Old age also does not define a discrete and insular minority
because all persons, if they live out their normal life spans, will
experience it. 427 U. S., at 313-314. Accordingly, as we recognized
in
Murgia, Bradley, and
Gregory, age is not a suspect
classification under the Equal Protection Clause. See,
e. g.,
Gregory, supra, at 470;
Bradley, supra, at 97;
Murgia, supra, at 313-314.
States may discriminate on the basis of age without offending
the Fourteenth Amendment if the age classification in question is
rationally related to a legitimate state interest. The rationality
commanded by the Equal Protection Clause does not require States to
match age distinctions and the legitimate interests they serve with
razorlike precision. As
84
we have explained, when conducting rational basis review "we
will not overturn such [government action] unless the varying
treatment of different groups or persons is so unrelated to the
achievement of any combination of legitimate purposes that we can
only conclude that the [government's] actions were irrational."
Bradley, supra, at 97. In contrast, when a State
discriminates on the basis of race or gender, we require a tighter
fit between the discriminatory means and the legitimate ends they
serve. See,
e. g., Adarand Constructors, Inc.
v.
Pena, 515
U. S. 200, 227 (1995) ("[Racial] classifications are
constitutional only if they are narrowly tailored measures that
further compelling governmental interests");
Mississippi Univ.
for Women v.
Hogan, 458 U. S. 718, 724 (1982)
(holding that gender classifications are constitutional only if
they serve "'important governmental objectives and ... the
discriminatory means employed' are 'substantially related to the
achievement of those objectives'" (citation omitted)). Under the
Fourteenth Amendment, a State may rely on age as a proxy for other
qualities, abilities, or characteristics that are relevant to the
State's legitimate interests. The Constitution does not preclude
reliance on such generalizations. That age proves to be an
inaccurate proxy in any individual case is irrelevant. "[W]here
rationality is the test, a State 'does not violate the Equal
Protection Clause merely because the classifications made by its
laws are imperfect.'"
Murgia, supra, at 316 (quoting
Dandridge v.
Williams, 397 U. S. 471, 485
(1970)). Finally, because an age classification is presumptively
rational, the individual challenging its constitutionality bears
the burden of proving that the "facts on which the classification
is apparently based could not reasonably be conceived to be true by
the governmental decisionmaker."
Bradley, supra, at 111; see
Gregory, supra, at 473.
Our decisions in
Murgia, Bradley, and
Gregory
illustrate these principles. In all three cases, we held that the
States' reliance on broad generalizations with respect to age
did
85
not violate the Equal Protection Clause. In
Murgia, we
upheld against an equal protection challenge a Massachusetts
statute requiring state police officers to retire at age 50. The
State justified the provision on the ground that the age
classification assured the State of the physical preparedness of
its officers. 427 U. S., at 314-315. Although we acknowledged that
Officer Murgia himself was in excellent physical health and could
still perform the duties of a state police officer, we found that
the statute clearly met the requirements of the Equal Protection
Clause.
Id., at 311, 314-317. "That the State chooses not to
determine fitness more precisely through individualized testing
after age 50 [does not prove] that the objective of assuring
physical fitness is not rationally furthered by a maximum-age
limitation."
Id., at 316. In
Bradley, we considered
an equal protection challenge to a federal statute requiring
Foreign Service officers to retire at age 60. We explained: "If
increasing age brings with it increasing susceptibility to physical
difficulties, ... the fact that individual Foreign Service
employees may be able to perform past age 60 does not invalidate
[the statute] any more than did the similar truth undercut
compulsory retirement at age 50 for uniformed state police in
Murgia." 440 U. S., at 108. Finally, in
Gregory, we
upheld a provision of the Missouri Constitution that required
judges to retire at age 70. Noting that the Missouri provision was
based on a generalization about the effect of old age on the
ability of individuals to serve as judges, we acknowledged that
"[i]t is far from true that all judges suffer significant
deterioration in performance at age 70," "[i]t is probably not true
that most do," and "[i]t may not be true at all." 501 U. S., at
473. Nevertheless, because Missouri's age classification was
subject only to rational basis review, we held that the State's
reliance on such imperfect generalizations was entirely proper
under the Equal Protection Clause.
Ibid. These decisions
thus demonstrate that the constitutionality of state
classifications on the basis of age cannot be deter-
86
mined on a person-by-person basis. Our Constitution permits
States to draw lines on the basis of age when they have a rational
basis for doing so at a class-based level, even if it "is probably
not true" that those reasons are valid in the majority of
cases.
Judged against the backdrop of our equal protection
jurisprudence, it is clear that the ADEA is "so out of proportion
to a supposed remedial or preventive object that it cannot be
understood as responsive to, or designed to prevent,
unconstitutional behavior."
City of Boerne, 521 U. S., at
532. The Act, through its broad restriction on the use of age as a
discriminating factor, prohibits substantially more state
employment decisions and practices than would likely be held
unconstitutional under the applicable equal protection, rational
basis standard. The ADEA makes unlawful, in the employment context,
all "discriminat[ion] against any individual ... because of such
individual's age." 29 U. S. C. § 623(a)(1). Petitioners, relying on
the Act's exceptions, dispute the extent to which the ADEA erects
protections beyond the Constitution's requirements. They contend
that the Act's prohibition, considered together with its
exceptions, applies only to arbitrary age discrimination, which in
the majority of cases corresponds to conduct that violates the
Equal Protection Clause. We disagree.
Petitioners stake their claim on § 623(f)(1). That section
permits employers to rely on age when it "is a bona fide
occupational qualification reasonably necessary to the normal
operation of the particular business." Petitioners' reliance on the
"bona fide occupational qualification" (BFOQ) defense is misplaced.
Our interpretation of § 623(f)(1) in
Western Air Lines, Inc.
v.
Criswell, 472 U. S. 400 (1985),
conclusively demonstrates that the defense is a far cry from the
rational basis standard we apply to age discrimination under the
Equal Protection Clause. The petitioner in that case maintained
that, pursuant to the BFOQ defense, employers must be permitted to
rely on age when such reliance
87
has a "rational basis in fact."
Id., at 417. We rejected
that argument, explaining that "[t]he BFOQ standard adopted in the
statute is one of 'reasonable necessity,' not reasonableness,"
id., at 419, and that the ADEA standard and the rational
basis test are "significantly different,"
id., at 421.
Under the ADEA, even with its BFOQ defense, the State's use of
age is prima facie unlawful. See 29 U. S. C. § 623(a)(1);
Western Air Lines, 472 U. S., at 422 ("Under the Act,
employers are to evaluate employees ... on their merits and not
their age"). Application of the Act therefore starts with a
presumption in favor of requiring the employer to make an
individualized determination. See
ibid. In
Western Air
Lines, we concluded that the BFOQ defense, which shifts the
focus from the merits of the individual employee to the necessity
for the age classification as a whole, is " 'meant to be an
extremely narrow exception to the general prohibition' of age
discrimination contained in the ADEA."
Id., at 412 (citation
omitted). We based that conclusion on both the restrictive language
of the statutory BFOQ provision itself and the EEOC's regulation
interpreting that exception. See 29 CFR § 1625.6(a) (1998) ("It is
anticipated that this concept of a [BFOQ] will have limited scope
and application. Further, as this is an exception to the Act it
must be narrowly construed"). To succeed under the BFOQ defense, we
held that an employer must demonstrate either "a substantial basis
for believing that
all or nearly all employees above an age
lack the qualifications required for the position," or that
reliance on the age classification is necessary because "it is
highly impractical for the employer to insure by individual
testing that its employees will have the necessary qualifications
for the job." 472 U. S., at 422423 (emphases added). Measured
against the rational basis standard of our equal protection
jurisprudence, the ADEA plainly imposes substantially higher
burdens on state employers. Thus, although it is true that the
existence of the BFOQ defense makes the ADEA's prohibition of age
dis-
88
crimination less than absolute, the Act's substantive
requirements nevertheless remain at a level akin to our heightened
scrutiny cases under the Equal Protection Clause.
Petitioners also place some reliance on the next clause in §
623(f)(1), which permits employers to engage in conduct otherwise
prohibited by the Act "where the differentiation is based on
reasonable factors other than age." This exception confirms,
however, rather than disproves, the conclusion that the ADEA's
protection extends beyond the requirements of the Equal Protection
Clause. The exception simply makes clear that "[t]he employer
cannot rely on age as a proxy for an employee's remaining
characteristics, such as productivity, but must instead focus on
those factors directly."
Hazen Paper Co. v.
Biggins,
507 U. S. 604,
611 (1993). Under the Constitution, in contrast, States may rely on
age as a proxy for other characteristics. See
Gregory, 501
U. S., at 473 (generalization about ability to serve as judges at
age 70);
Bradley, 440 U. S., at 108-109, 112 (generalization
about ability to serve as Foreign Service officer at age 60);
Murgia, 427 U. S., at 314-317 (generalization about ability
to serve as state police officer at age 50). Section 623(f)(1),
then, merely confirms that Congress, through the ADEA, has
effectively elevated the standard for analyzing age discrimination
to heightened scrutiny.
That the ADEA prohibits very little conduct likely to be held
unconstitutional, while significant, does not alone provide the
answer to our § 5 inquiry. Difficult and intractable problems often
require powerful remedies, and we have never held that § 5
precludes Congress from enacting reasonably prophylactic
legislation. Our task is to determine whether the ADEA is in fact
just such an appropriate remedy or, instead, merely an attempt to
substantively redefine the States' legal obligations with respect
to age discrimination. One means by which we have made such a
determination in the past is by examining the legislative record
containing the reasons for Congress' action. See,
e. g.,
Flor-
89
ida Prepaid, 527 U. S., at 640-647;
City of
Boerne, 521 U. S., at 530-531. "The appropriateness of remedial
measures must be considered in light of the evil presented. Strong
measures appropriate to address one harm may be an unwarranted
response to another, lesser one."
Id., at 530 (citing
South Carolina v.
Katzenbach, 383 U. S. 301, 308
(1966)).
Our examination of the ADEA's legislative record confirms that
Congress' 1974 extension of the Act to the States was an
unwarranted response to a perhaps inconsequential problem. Congress
never identified any pattern of age discrimination by the States,
much less any discrimination whatsoever that rose to the level of
constitutional violation. The evidence compiled by petitioners to
demonstrate such attention by Congress to age discrimination by the
States falls well short of the mark. That evidence consists almost
entirely of isolated sentences clipped from floor debates and
legislative reports. See,
e. g., S. Rep. No. 93-846,
p. 112 (1974); S. Rep. No. 93-690, p. 56 (1974); H. R. Rep. No.
93913, pp. 40-41 (1974); S. Rep. No. 93-300, p. 57 (1973); Senate
Special Committee on Aging, Improving the Age Discrimination Law,
93d Cong., 1st Sess., 14 (Comm. Print 1973); 113 Congo Rec. 34742
(1967) (remarks of Rep. Steiger);
id., at 34749 (remarks of
Rep. Donohue); 110 Congo Rec. 13490 (1964) (remarks of Sen.
Smathers);
id., at 9912 (remarks of Sen. Sparkman);
id., at 2596 (remarks of Rep. Beckworth). The statements of
Senator Bentsen on the floor of the Senate are indicative of the
strength of the evidence relied on by petitioners. See,
e.
g., 118 Congo Rec. 24397 (1972) (stating that "there is
ample evidence that age discrimination is broadly practiced in
government employment," but relying on newspaper articles about
federal employees);
id., at 7745 ("Letters from my own State
have revealed that State and local governments have also been
guilty of discrimination toward older employees");
ibid.
("[T]here are strong indications that the hiring and firing
practices of governmental units discriminate against the elderly
... ").
90
Petitioners place additional reliance on Congress' consideration
of a 1966 report prepared by the State of California on age
discrimination in its public agencies. See Hearings on H. R. 3651
et al. before the Subcommittee on Labor of the House of
Representatives Committee on Education and Labor, 90th Cong., 1st
Sess., pp. 161-201 (1967) (Hearings) (reprinting State of
California, Citizens' Advisory Committee on Aging, Age
Discrimination in Public Agencies (1966)). Like the assorted
sentences petitioners cobble together from a decade's worth of
congressional reports and floor debates, the California study does
not indicate that the State had engaged in any
unconstitutional age discrimination. In fact, the report
stated that the majority of the age limits uncovered in the state
survey applied in the law enforcement and firefighting occupations.
Hearings 168. Those age limits were not only permitted under
California law at the time, see
ibid., but are also
currently permitted under the ADEA. See 5 U. S. C. §§ 3307(d), (e);
29 U. S. C. § 623(j) (1994 ed., Supp. III). Even if the California
report had uncovered a pattern of unconstitutional age
discrimination in the State's public agencies at the time, it
nevertheless would have been insufficient to support Congress' 1974
extension of the ADEA to every State of the Union. The report
simply does not constitute "evidence that [unconstitutional age
discrimination] had become a problem of national import."
Florida Prepaid, supra, at 641.
Finally, the United States' argument that Congress found
substantial age discrimination in the private sector, see Brief for
United States 38, is beside the point. Congress made no such
findings with respect to the States. Although we also have doubts
whether the findings Congress did make with respect to the private
sector could be extrapolated to support a finding of
unconstitutional age discrimination in the public sector, it
is sufficient for these cases to note that Congress failed to
identify a widespread pattern of age dis-
91
crimination by the States. See
Florida Prepaid, 527 U.
S., at 640.
A review of the ADEA's legislative record as a whole, then,
reveals that Congress had virtually no reason to believe that state
and local governments were unconstitutionally discriminating
against their employees on the basis of age. Although that lack of
support is not determinative of the § 5 inquiry,
id., at
646;
City of Boerne, supra, at 531-532, Congress' failure to
uncover any significant pattern of unconstitutional discrimination
here confirms that Congress had no reason to believe that broad
prophylactic legislation was necessary in this field. In light of
the indiscriminate scope of the Act's substantive requirements, and
the lack of evidence of widespread and unconstitutional age
discrimination by the States, we hold that the ADEA is not a valid
exercise of Congress' power under § 5 of the Fourteenth Amendment.
The ADEA's purported abrogation of the States' sovereign immunity
is accordingly invalid.
D
Our decision today does not signal the end of the line for
employees who find themselves subject to age discrimination at the
hands of their state employers. We hold only that, in the ADEA,
Congress did not validly abrogate the States' sovereign immunity to
suits by private individuals. State employees are protected by
state age discrimination statutes, and may recover money damages
from their state employers, in almost every State of the Union.*
Those ave-
*See Alaska Stat. Ann. § 18.80.010
et seq. (1998); Ariz.
Rev. Stat. Ann. §41-1401
et seq. (1999); Ark. Code Ann.
§§21-3-201, 21-3-203 (1996); Cal. Govt. Code Ann. § 12900
et
seq. (West 1992 and Supp. 1999); Colo. Rev. Stat. § 24-34-301
et seq. (1998); Conn. Gen. Stat. § 46a-51
et seq.
(1999); Del. Code Ann., Tit. 19, § 710
et seq. (Supp.
1998); Fla. Stat. §§ 112.044,
760.01 et seq. (1997
and 1998 Supp.); Ga. Code Ann. §45-19-21
et seq.
(1990 and Supp. 1996); Haw. Rev. Stat. § 378-1
et
seq. (1993 and Cum. Supp. 1998); Idaho Code § 67-5901
et
seq. (1995 and Supp. 1999); Ill. Compo Stat., ch. 775, §5/1-101
et seq. (1998); Ind. Code §22-9-2-1
et seq. (1993);
Iowa
92
Opinion of STEVENS, J.
nues of relief remain available today, just as they were before
this decision.
Because the ADEA does not validly abrogate the States' sovereign
immunity, however, the present suits must be dismissed.
Accordingly, the judgment of the Court of Appeals is affirmed.
It is so ordered.
JUSTICE STEVENS, with whom JUSTICE SOUTER, JUSTICE GINSBURG, and
JUSTICE BREYER join, dissenting in part and concurring in part.
Congress' power to regulate the American economy includes the
power to regulate both the public and the private
Code §216.1
et seq. (1994 and Supp. 1999); Kan. Stat.
Ann. §44-1111
et seq. (1993 and Cum. Supp. 1998); Ky. Rev.
Stat. Ann. § 344.010
et seq. (Michie 1997 and Supp. 1998);
La. Rev. Stat. Ann. § 23:311
et seq. (West 1998);
id., § 51:2231
et seq. (West Supp. 1999); Me. Rev.
Stat. Ann., Tit. 5, § 4551
et seq. (1998-1999 Supp.); Md.
Ann. Code, Art. 49B, § 1
et seq. (1998 and Supp. 1999);
Mass. Gen. Laws § 151:1
et seq. (1997 and 1997 Supp.); Mich.
Compo Laws § 37.2101
et seq. (West 1985 and Supp. 1999);
Minn. Stat. § 363.01
et seq. (1991 and Supp. 1999); Miss.
Code Ann. §25-9-149 (1991); Mo. Rev. Stat. §213.010
et seq.
(1994 and Cum. Supp. 1998); Mont. Code Ann. §49-1
101 et seq.
(1997); Neb. Rev. Stat. §48-1001
et seq. (1998); Nev. Rev.
Stat. § 613.310
et seq. (1995); N. H. Rev. Stat. Ann. §
354-A:1
et seq. (1995 and Supp. 1998); N. J. Stat. Ann. §§
10:3-1, 10:5-1
et seq. (West 1993 and Supp. 1999); N. M.
Stat. Ann. §28-1-1
et seq. (1996); N. Y. Exec. Law §290
et seq. (McKinney 1993 and Supp. 1999); N. C. Gen. Stat. §
126-16
et seq. (1999); N. D. Cent. Code § 14-02.4-01
et
seq. (1997 and Supp. 1999); Ohio Rev. Code Ann. § 4112.01
et
seq. (1998); Okla. Stat., Tit. 25, § 1101
et seq. (1991
and Supp. 1999); Ore. Rev. Stat. § 659.010
et seq. (1997);
43 Pa. Cons. Stat. § 951
et seq. (1991 and Supp. 1999); R.
I. Gen. Laws § 28-5-1
et seq. (1995 and Supp. 1997); S. C.
Code Ann. § 1-13-10
et seq. (1986 and Cum. Supp. 1998);
Tenn. Code Ann. §4-21-101
et seq. (1998); Tex. Lab. Code
Ann. § 21.001
et seq. (1996 and Supp. 1999); Utah Code Ann.
§ 34A-5-101
et seq. (Supp. 1999); Vt. Stat. Ann., Tit. 21, §
495
et seq. (1987 and Supp. 1999); Va. Code Ann. §2.1-116.1O
et seq. (1995 and Supp. 1999); Wash. Rev. Code §49.60.010
et seq. (1994); W. Va. Code §5-11-1
et seq. (1999);
Wis. Stat. Ann. § 111.01
et seq. (West 1997 and Supp. 1998);
Wyo. Stat. Ann. § 27-9
101 et seq. (1999).
93
sectors of the labor market. Federal rules outlawing
discrimination in the workplace, like the regulation of wages and
hours or health and safety standards, may be enforced against
public as well as private employers. In my opinion, Congress' power
to authorize federal remedies against state agencies that violate
federal statutory obligations is coextensive with its power to
impose those obligations on the States in the first place. Neither
the Eleventh Amendment nor the doctrine of sovereign immunity
places any limit on that power. See
Seminole Tribe of Fla.
v.
Florida, 517
U. S. 44, 165-168 (1996) (SOUTER, J., dissenting);
EEOC
v.
Wyoming, 460 U. S. 226, 247-248
(1983) (STEVENS, J., concurring).
The application of the ancient judge-made doctrine of sovereign
immunity in cases like these is supposedly justified as a
freestanding limit on congressional authority, a limit necessary to
protect States' "dignity and respect" from impairment by the
National Government. The Framers did not, however, select the
Judicial Branch as the constitutional guardian of those state
interests. Rather, the Framers designed important structural
safeguards to ensure that when the National Government enacted
substantive law (and provided for its enforcement), the normal
operation of the legislative process itself would adequately defend
state interests from undue infringement. See generally Wechsler,
The Political Safeguards of Federalism: The Role of the States in
the Composition and Selection of the N ational Government, 54
Colum. L. Rev. 543 (1954).
It is the Framers' compromise giving each State equal
representation in the Senate that provides the principal structural
protection for the sovereignty of the several States. The
composition of the Senate was originally determined by the
legislatures of the States, which would guarantee that their
interests could not be ignored by Congress.1
IThe Federalist No. 45, p. 291
(C. Rossiter ed. 1961) (J.
Madison) ("The State governments may be regarded as constituent and
essential parts of the federal government .... The Senate will be
elected absolutely and
94
Opinion of STEVENS, J.
The Framers also directed that the House be composed of
Representatives selected by voters in the several States, the
consequence of which is that "the states are the strategic
yardsticks for the measurement of interest and opinion, the special
centers of political activity, the separate geographical
determinants of national as well as local politics."
Id., at
546.
Whenever Congress passes a statute, it does so against the
background of state law already in place; the propriety of taking
national action is thus measured by the metric of the existing
state norms that Congress seeks to supplement or supplant.2 The
persuasiveness of any justification for overcoming legislative
inertia and taking national action, either creating new federal
obligations or providing for their enforcement, must necessarily be
judged in reference to state interests, as expressed in existing
state laws. The precise scope of federal laws, of course, can be
shaped with nuanced attention to state interests. The Congress also
has the authority to grant or withhold jurisdiction in lower
federal courts. The burden of being haled into a federal forum for
the enforcement of federal law, thus, can be expanded or contracted
as Congress deems proper, which decision, like all other
legislative acts, necessarily contemplates state interests. Thus,
Congress can use its broad range of flexible legislative tools to
approach the delicate issue of how to balance local and national
interests in the
exclusively by the State legislatures .... Thus, [it] will owe
its existence more or less to the favor of the State governments,
and must consequently feel a dependence, which is much more likely
to beget a disposition too obsequious than too overbearing towards
them").
2 When Congress expanded the Age Discrimination in Employment
Act of 1967 (ADEA) in 1974 to apply to public employers, all 50
States had some form of age discrimination law, but 24 of them did
not extend their own laws to public employers. See App. to Brief
for Respondents 1a-25a.
95
most responsive and careful manner.3 It is quite evident,
therefore, that the Framers did not view this Court as the ultimate
guardian of the States' interest in protecting their own
sovereignty from impairment by "burdensome" federal laws.4
3 Thus, the present majority's view does more than simply
aggrandize the power of the Judicial Branch. It also limits
Congress' options for responding with precise attention to state
interests when it takes national action. The majority's view,
therefore, does not bolster the Framers' plan of structural
safeguards for state interests. Rather, it is fundamentally at odds
with that plan. Indeed, as JUSTICE BREYER has explained, forbidding
private remedies may necessitate the enlargement of the federal
bureaucracy and make it more difficult "to decentralize
governmental decisionmaking and to provide individual citizens, or
local communities, with a variety of enforcement powers."
College Savings Bank v.
Florida Prepaid Postsecondary Ed.
Expense Bd., 527
U. S. 666, 705 (1999) (dissenting opinion); see also
Printz v.
United States, 521 U. S. 898, 976-978
(1997) (BREYER, J., dissenting).
4 The President also plays a role in the enactment of federal
law, and the Framers likewise provided structural safeguards to
protect state interests in the selection of the President. The
electors who choose the President are appointed in a manner
directed by the state legislatures. Art. II, § 1, cl. 2. And if a
majority of electors do not cast their vote for one person, then
the President is chosen by the House of Representatives. "But in
chusing the President" by this manner, the Constitution directs
that "the Votes shall be taken
by States, the
Representatives from each State having one Vote." Art. II, § 1, cl.
3 (emphasis added); see also Arndt. 12.
Moreover, the Constitution certainly protects state interests in
other ways as well, as in the provisions of Articles IV, V, and
VII. My concern here, however, is with the respect for state
interests safeguarded by the ordinary legislative process. The
balance between national and local interests reflected in other
constitutional provisions may vary, see,
e. g.,
U S.
Term Limits, Inc. v.
Thornton, 514 U. S. 779 (1995), but
insofar as Congress' legislative authority is concerned, the
relevant constitutional provisions were crafted to ensure that the
process itself adequately accounted for local interests.
I also recognize that the Judicial Branch sometimes plays a role
in limiting the product of the legislative process. It may do so,
for example, when the exercise of legislative authority runs up
against some other con-
96
Opinion of STEVENS, J.
Federalism concerns do make it appropriate for Congress to speak
clearly when it regulates state action. But when it does so, as it
has in these cases,5 we can safely presume that the burdens the
statute imposes on the sovereignty of the several States were taken
into account during the deliberative process leading to the
enactment of the measure. Those burdens necessarily include the
cost of defending against enforcement proceedings and paying
whatever penalties might be incurred for violating the statute. In
my judgment, the question whether those enforcement proceedings
should be conducted exclusively by federal agencies, or may be
brought by private parties as well, is a matter of policy for
Congress to decide. In either event, once Congress has made its
policy choice, the sovereignty concerns of the several States are
satisfied, and the federal interest in evenhanded enforcement of
federal law, explicitly endorsed in Article VI of the Constitution,
does not countenance further limitations. There is not a word in
the text of the Constitution supporting the Court's conclusion that
the judgemade doctrine of sovereign immunity limits Congress' power
to authorize private parties, as well as federal agencies, to
enforce federal law against the States. The importance of
respecting the Framers' decision to assign the business of
lawmaking to the Congress dictates firm resistance to the present
majority's repeated substitution of its own views of federalism for
those expressed in statutes enacted by the Congress and signed by
the President.
stitutional command. See
Seminole Tribe of Fla. v.
Florida, 517 U.
S. 44, 166-167 (1996) (SOUTER, J., dissenting). But in those
instances, courts are not crafting wholly judge-made doctrines
unrelated to any constitutional text, nor are they doing so solely
under the guise of the necessity of safeguarding state
interests.
5 Because Congress has clearly expressed its intention to
subject States to suits by private parties under the ADEA, I join
Part III of the opinion of the Court.
97
The Eleventh Amendment simply does not support the Court's view.
As has been stated before, the Amendment only places a textual
limitation on the diversity jurisdiction of the federal courts. See
Atascadero State Hospital v.
Scanlon, 473 U. S. 234, 286-289
(1985) (Brennan, J., dissenting). Because the Amendment is a part
of the Constitution, I have never understood how its limitation on
the diversity jurisdiction of federal courts defined in Article III
could be "abrogated" by an Act of Congress.
Seminole Tribe,
517 U. S., at 93 (STEVENS, J., dissenting). Here, however,
private petitioners did not invoke the federal courts' diversity
jurisdiction; they are citizens of the same State as the defendants
and they are asserting claims that arise under federal law. Thus,
to day's decision (relying as it does on
Seminole Tribe)
rests entirely on a novel judicial interpretation of the doctrine
of sovereign immunity,6 which the Court treats as though it were a
constitutional precept. It is nevertheless clear to me that if
Congress has the power to create the federal rights that these
petitioners are asserting, it must also have the power to give the
federal courts jurisdiction to remedy violations of those rights,
even if it is necessary to "abrogate" the Court's "Eleventh
Amendment" version of the common-law defense of sovereign immunity
to do so. That is the essence of the Court's holding in
Pennsylvania v.
Union Gas Co., 491 U. S. 1, 13-23
(1989).
I remain convinced that
Union Gas was correctly decided
and that the decision of five Justices in
Seminole Tribe to
overrule that case was profoundly misguided. Despite my respect for
stare decisis, I am unwilling to accept
Seminole
Tribe as controlling precedent. First and foremost, the
reasoning of that opinion is so profoundly mistaken and so
6 Under the traditional view, the sovereign immunity defense was
recognized only as a matter of comity when asserted in the courts
of another sovereign, rather than as a limitation on the
jurisdiction of that forum. See
Schooner Exchange v.
McFaddon, 7 Cranch 116, 136 (1812) (Marshall, C. J.);
Nevada v.
Hall, 440 U. S. 410, 414-418
(1979).
98
Opinion of STEVENS, J.
fundamentally inconsistent with the Framers' conception of the
constitutional order that it has forsaken any claim to the usual
deference or respect owed to decisions of this Court.
Stare
decisis, furthermore, has less force in the area of
constitutional law. See,
e. g., Burnet v.
Coronado Oil &
Gas Co., 285 U. S. 393, 406-410
(1932) (Brandeis, J., dissenting). And in this instance, it is but
a hollow pretense for any State to seek refuge in
stare
decisis' protection of reliance interests. It cannot be
credibly maintained that a State's ordering of its affairs with
respect to potential liability under federal law requires adherence
to
Seminole Tribe, as that decision leaves open a State's
liability upon enforcement of federal law by federal agencies. Nor
can a State find solace in the
stare decisis interest of
promoting "the evenhanded ... and consistent development of legal
principles."
Payne v.
Tennessee, 501 U. S. 808, 827
(1991). That principle is perverted when invoked to rely on
sovereign immunity as a defense to deliberate violations of settled
federal law. Further,
Seminole Tribe is a case that will
unquestionably have serious ramifications in future cases; indeed,
it has already had such an effect, as in the Court's decision today
and in the equally misguided opinion of
Alden v.
Maine, 527 U.
S. 706 (1999). Further still, the
Seminole Tribe
decision unnecessarily forces the Court to resolve vexing questions
of constitutional law respecting Congress' § 5 authority. Finally,
by its own repeated overruling of earlier precedent, the majority
has itself discounted the importance of
stare decisis in
this area of the law.7 The kind of judicial activism manifested in
cases like
Seminole Tribe,
7 See,
e. g., College Savings Bank v.
Florida Prepaid
Postsecondary Ed. Expense Bd., 527 U. S., at 675-683
(overruling
Parden v.
Terminal R. Co. of Ala. Docks
Dept., 377 U. S.
184 (1964));
Seminole Tribe, 517 U. S., at 63-73
(overruling
Pennsylvania v.
Union Gas Co., 491 U. S. 1 (1989));
Pennhurst State School and Hospital v.
Halderman,
465 U. S. 89, 127,
132-137 (1984) (STEVENS, J., dissenting) ("[T]he Court repudiates
at least 28 cases, spanning well over a century of this Court's
jurisprudence").
99
Alden v.
Maine, Florida Prepaid Postsecondary Ed.
Expense Bd. v.
College Savings Bank, 527 U. S. 627 (1999), and
College Savings Bank v.
Florida Prepaid Postsecondary Ed.
Expense Bd., 527
U. S. 666 (1999), represents such a radical departure from the
proper role of this Court that it should be opposed whenever the
opportunity arises.
Accordingly, I respectfully dissent.
JUSTICE THOMAS, with whom JUSTICE KENNEDY joins, concurring in
part and dissenting in part.
In
Atascadero State Hospital v.
Scanlon, 473 U. S. 234 (1985),
this Court, cognizant of the impact of an abrogation of the States'
Eleventh Amendment immunity from suit in federal court on "the
usual constitutional balance between the States and the Federal
Government," reaffirmed that "Congress may abrogate ... only by
making its intention unmistakably clear in the language of the
statute."
Id., at 242. This rule "'assures that the
legislature has in fact faced, and intended to bring into issue,
the critical matters involved in the judicial decision.'''
Will v.
Michigan Dept. of State Police, 491 U. S. 58, 65 (1989)
(quoting
United States v.
Bass, 404 U. S. 336, 349
(1971)). And it is especially applicable when this Court deals with
a statute like the Age Discrimination in Employment Act of 1967
(ADEA), whose substantive mandates extend to "elevator operators,
janitors, charwomen, security guards, secretaries, and the like in
every office building in a State's governmental hierarchy."
Employees of Dept. of Public Health and Welfare of Mo. v.
Department of Public Health and Welfare of Mo., 411 U. S. 279, 285
(1973). Because I think that Congress has not made its intention to
abrogate "unmistakably clear" in the text of the ADEA, I
respectfully dissent from Part III of the Court's opinion.1
1 I concur in Parts I, II, and IV of the Court's opinion because
I agree that the purported abrogation of the States' Eleventh
Amendment immunity in the ADEA falls outside Congress' § 5
enforcement power.
100
I
It is natural to begin the clear statement inquiry by examining
those provisions that reside within the four corners of the Act in
question. Private petitioners and the government correctly observe
that the ADEA's substantive provisions extend to the States as
employers, see 29 U. S. C. § 623(a) (providing that "[i]t shall be
unlawful for an employer" to engage in certain age discriminatory
practices); § 630(b) (defining "employer" to include "a State or a
political subdivision of a State"); § 630(f) (defining "employee"
as "an individual employed by any employer"), and that the ADEA
establishes an individual right-of-action provision for "aggrieved"
persons, see § 626(c)(1) ("Any person aggrieved may bring a civil
action in any court of competent jurisdiction for such legal or
equitable relief as will effectuate the purposes of this chapter").
Since, in the case of a state employee, the only possible defendant
is the State, it is submitted that Congress clearly expressed its
intent that a state employee may qualify as a "person aggrieved"
under § 626(c)(1) and bring suit against his state employer in
federal court.
While the argument may have some logical appeal, it is squarely
foreclosed by precedent-which explains the Court's decision to
employ different reasoning in finding a clear statement, see
ante, at 73. In
Employees, we confronted the pre-1974
version of the Fair Labor Standards Act of 1938 (FLSA), which
clearly extended as a substantive matter to state employers, and
included the following private right-of-action provision: "'Action
to recover such liability may be maintained in any court of
competent jurisdiction.'"
Employees, supra, at 283 (quoting
29 U. S. C. § 216(b) (1970 ed.)). We held that this language fell
short of a clear statement of Congress' intent to abrogate. The
FLSA's substantive coverage of state employers could be given
meaning through enforcement by the Secretary of Labor, which would
raise no Eleventh Amendment issue, 411 U. S., at 285-286, and we
were "reluctant to believe that Congress in pursuit
101
of a harmonious federalism desired to treat the States so
harshly" by abrogating their Eleventh Amendment immunity,
id., at 286. See also,
e. g., Dellmuth v.
Muth, 491 U.
S. 223, 228 (1989) (holding that Congress had not clearly
stated its intent to abrogate in a statute that authorized "parties
aggrieved ... to 'bring a civil action ... in any State court of
competent jurisdiction or in a district court of the United States
without regard to the amount in controversy''') (quoting 20 U. S.
C. § 1415(e)(2) (1982 ed.)).
The ADEA is no different from the version of the FLSA we
examined in
Employees. It unquestionably extends as a
substantive matter to state employers, but does not mention States
in its right-of-action provision: "Any person aggrieved may bring a
civil action in any court of competent jurisdiction for such legal
or equitable relief as will effectuate the purposes of this
chapter." 29 U. S. C. § 626(c)(1). This provision simply does not
reveal Congress' attention to the augmented liability and
diminished sovereignty concomitant to an abrogation of Eleventh
Amendment immunity. "Congress, acting responsibly, would not be
presumed to take such action silently."
Employees, supra, at
284-285.
II
Perhaps recognizing the obstacle posed by
Employees,
private petitioners and the Government contend that the ADEA
incorporates a clear statement from the FLSA. The ADEA's
incorporating reference, which has remained constant since the
enactment of the ADEA in 1967, provides:
"The provisions of this chapter shall be enforced in accordance
with the powers, remedies, and procedures provided in sections
211(b), 216 (except for subsection (a) thereof), and 217 of this
title, and subsection (c) of this section." 29 U. S. C. § 626(b).
It is argued that § 216(b)-one of the incorporated provisions from
the FLSA-unequivocally abrogates the States' immunity from suit in
federal court. That section states in relevant part that "[a]n
action
102
to recover the liability prescribed in either of the preceding
sentences may be maintained against any employer (including a
public agency) in any Federal or State court of competent
jurisdiction." 29 U. S. C. § 216(b).
But, as noted in the above discussion of
Employees, §
216(b) was not always so worded. At the time the ADEA was enacted
in 1967, a relatively sparse version of § 216(b)which
Employees held insufficient to abrogate the States'
immunity-provided that an "[a]ction to recover such liability may
be maintained in any court of competent jurisdiction." 29 U. S. C.
§ 216(b) (1964 ed.). It was not until 1974 that Congress modified §
216(b) to its current formulation. Fair Labor Standards Amendments
of 1974 (1974 Amendments), § 6(d)(1), 88 Stat. 61.
This sequence of events suggests, in my view, that we should
approach with circumspection any theory of "clear statement by
incorporation." Where Congress amends an Act whose provisions are
incorporated by other Acts, the bill under consideration does not
necessarily mention the incorporating references in those other
Acts, and so fails to inspire confidence that Congress has
deliberated on the consequences of the amendment for the other
Acts. That is the case here. The legislation that amended § 216(b),
§ 6(d)(1) of the 1974 Amendments, did not even acknowledge §
626(b). And, given the purpose of the clear statement rule to
"'assur[e] that the legislature has in fact faced'" the issue of
abrogation,
Will, 491 U. S., at 65 (quoting
Bass, 404
U. S., at 349), I am unwilling to indulge the fiction that
Congress, when it amended § 216(b), recognized the consequences for
a separate Act (the ADEA) that incorporates the amended
provision.
To be sure, §28 of the 1974 Amendments, 88 Stat. 74, did modify
certain provisions of the ADEA, which might suggest that Congress
understood the impact of § 6(d)(1) on the ADEA. See
ante, at
76. But § 6(d)(2)(A), another of the 1974 Amendments, suggests just
the opposite. Section
103
6(d)(2)(A) added to the statute of limitations provision of the
FLSA, 29 U. S. C. § 255, a new subsection (d), which suspended the
running of the statutory periods of limitation on "any cause of
action brought under section 16(b) of the [FLSA, 29 U. S. C. §
216(b)] ... on or before April 18, 1973," the date
Employees
was decided, until "one hundred and eighty days after the effective
date of [the 1974 Amendments]." The purpose of this new
subsection-revealed not only by its reference to the date
Employees was decided, but also by its exception for actions
in which "judgment has been entered for the defendant on the
grounds other than State immunity from Federal jurisdiction"-was to
allow FLSA plaintiffs who had been frustrated by state defendants'
invocation of Eleventh Amendment immunity under
Employees to
avail themselves of the newly amended § 216(b).2 It appears,
however, that Congress was oblivious to the impact of § 6(d)(2)(A)
on the ADEA. The new § 255(d), by operation of § 7(e) of the ADEA,
29 U. S. C. § 626(e) (1988 ed.) ("Sectio[n] 255 ... of this title
shall apply to actions under this chapter"),3 automatically became
part of the ADEA in 1974. And yet the new § 255(d) could have no
possible application to the ADEA because, as the Court observes,
ante, at 76 (citing §28(a) of the 1974 Amendments), the
ADEA's substantive mandates did not even apply to the States until
the 1974 Amendments. Thus, before 1974,
2 That Congress had this purpose in mind as to the FLSA does not
mean that the product of Congress' efforts-the amended §
216(b)-qualifies as a clear statement. The amended § 216(b)'s
description of the forum as "any Federal ... court of
competent jurisdiction," 29 U. S. C. § 216(b) (emphasis
added), is ambiguous insofar as a federal court might not be
"competent" unless the state defendant consents to suit. See
infra, at 108-109. My present point is simply that, even
assuming the amended § 216(b) qualifies as a clear statement, the
1974 Congress likely did not contemplate the impact of the new §
216(b) on the ADEA.
3 The ADEA was amended in 1991 to remove the incorporating
reference. See Civil Rights Act of 1991, § 115, 105 Stat. 1079, 29
U. S. C. § 626(e).
104
there were no ADEA suits against States that could be affected
by § 255(d)'s tolling provision. If Congress had recognized this
"overinclusiveness" problem, it likely would have amended § 626(e)
to incorporate only §§ 255(a)-(c). Cf. § 626(b) (incorporating "the
powers, remedies, and procedures provided in sectio[n] ... 216
(except for subsection (a) thereof") (emphasis added)). But
since Congress did not do so, we are left to conclude that Congress
did not clearly focus on the impact of § 6(d)(2)(A) on the ADEA.
And Congress' insouciance with respect to the impact of §
6(d)(2)(A) suggests that Congress was similarly inattentive to the
impact of § 6(d)(1).
Insofar as § 6(d)(2)(A) is closer to § 6(d)(1) in terms of space
and purpose than is § 28, the implication I would draw from §
6(d)(2)(A) almost certainly outweighs the inference the Court would
draw from § 28. In any event, the notion that § 28 of the 1974
Amendments evidences Congress' awareness of every last ripple those
amendments might cause in the ADEA is at best a permissible
inference, not "the unequivocal declaration which ... is necessary
before we will determine that Congress intended to exercise its
powers of abrogation."
Dellmuth, 491 U. S., at 232.
The Court advances a more general critique of my approach,
explaining that "we have never held that Congress must speak with
different gradations of clarity depending on the specific
circumstances of the relevant legislation .... "
Ante, at
76. But that descriptive observation, with which I agree, is hardly
probative in light of the fact that a "clear statement by
incorporation" argument has not to date been presented to this
Court. I acknowledge that our previous cases have not required a
clear statement to appear within a single section or subsection of
an Act.
Pennsylvania v.
Union Gas Co., 491 U. S. 1, 7-10 (1989),
overruled on other grounds,
Seminole Tribe of Fla. v.
Florida, 517 U.
S. 44 (1996); see also
id., at 56-57 (confirming clear
statement in one statutory subsection by looking to provisions in
other
105
subsection). Nor have our cases required that such separate
sections or subsections of an Act be passed at the same time.
Union Gas, supra, at 7-13, and n. 2 (consulting original
provisions of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 and 1986 amendments to that
Act). But, even accepting
Union Gas to be correctly decided,
I do not think the situation where Congress amends an incorporated
provision is analogous to
Union Gas. In the
Union Gas
setting, where the later Congress actually amends the earlier
enacted Act, it is reasonable to assume that the later Congress
focused on each of the various provisions, whether new or old, that
combine to express an intent to abrogate.
III
Even if a clarifying amendment to an incorporated provision
might sometimes provide a clear statement to abrogate for purposes
of the Act into which the provision is incorporated, this is not
such a case for two reasons. First, § 626(b) does not clearly
incorporate the part of § 216(b) that establishes a private right
of action against employers. Second, even assuming § 626(b)
incorporates § 216(b) in its entirety, § 216(b) itself falls short
of an "unmistakably clear" expression of Congress' intent to
abrogate the States' Eleventh Amendment immunity from suit in
federal court.
A
I do not dispute that § 626(b) incorporates into the ADEA some
provisions of § 216(b). But it seems to me at least open to debate
whether § 626(b) incorporates the portion of § 216(b) that creates
an individual private right of action, for the ADEA already
contains its own private right-of-action provision-§ 626(c)(1). See
McKennon v.
Nashville Banner Publishing Co., 513 U. S. 352, 358 (1995)
("The ADEA ... contains a vital element found in both Title VII and
the Fair Labor Standards Act: It grants an injured employee a
106
right of action to obtain the authorized relief. 29 U. S. C. §
626(c)"); 1 B. Lindemann & P. Grossman, Employment
Discrimination Law 573-574 (3d ed. 1996) ("The ADEA grants any
aggrieved person the right to sue for legal or equitable relief
that will effectuate the purposes of the Act" (citing § 626(c)(1))
(footnote omitted)). While the right-of-action provisions in §§
626(c) and 216(b) are not identically phrased, compare § 626(c)(1)
("Any person aggrieved may bring a civil action in any court of
competent jurisdiction for such legal or equitable relief as will
effectuate the purposes of this chapter"), with § 216(b) ("An
action to recover the liability prescribed in either of the
preceding sentences may be maintained against any employer
(including a public agency) in any Federal or State court of
competent jurisdiction ... "), they are certainly similar in
function.
Indeed, if § 216(b)'s private right-of-action provision were
incorporated by § 626(b) and hence available to ADEA plaintiffs,
the analogous right of action established by § 626(c)(1) would be
wholly superfluous-an interpretive problem the Court does not even
pause to acknowledge. To avoid the overlap, one might read the ADEA
to create an
exclusive private right of action in §
626(c)(1), and then to add various embellishments, whether from
elsewhere in the ADEA, see § 626(c)(2) (trial by jury), or from the
incorporated parts of the FLSA, see,
e. g., § 216(b)
(collective actions);
ibid. (attorney's fees);
ibid.
(liquidated damages).4
Of course the Court's interpretation-that an ADEA plaintiff may
choose § 626(c)(1) or § 216(b) as the basis for his private right
of action-is also plausible. "But such a permissible inference,
whatever its logical force, would remain just that: a permissible
inference. It would not be the unequivocal declaration which ... is
necessary before we will determine that Congress intended to
exercise its powers
4 The ADEA expressly limits this last remedy to "cases of
willful violations." 29 U. S. C. § 626(b); see
Lorillard v.
Pons, 434 U.
S. 575, 581 (1978).
107
of abrogation."
Dellmuth, 491 U. S., at 232. Apparently
cognizant of this rule, the Court resorts to extrinsic evidence:
our prior decisions. See,
e. g., ante, at 74 (" '[T]he ADEA
incorporates enforcement provisions of the Fair Labor Standards Act
of 1938, and provides that the ADEA shall be enforced using certain
of the powers, remedies, and procedures of the FLSA''' (alteration
in original)) (quoting
Hoffmann-La Roche Inc. v.
Sperling, 493
U. S. 165, 167 (1989) (citations omitted)). But judicial
opinions, especially those issued subsequent to the enactments in
question, have no bearing on whether
Congress has clearly
stated its intent to abrogate in the text of the statute. How could
they, given that legislative history-which at least antedates the
enactments under review-is "irrelevant to a judicial inquiry into
whether Congress intended to abrogate the Eleventh Amendment"?
Dellmuth, supra, at 230. In any event,
Hoffmann-La
Roche, which did not present the question of a State's Eleventh
Amendment immunity,5 is perfectly consistent with the view that the
ADEA incorporates only "extras" from the FLSA, not overlapping
provisions.
Hoffmann-La Roche involved the ADEA's
incorporation of the FLSA's authorization of collective actions,
which
follows § 216(b)'s individual private right-of-action
provision, see § 216(b) ("An action to recover the liability
prescribed in either of the preceding sentences may be maintained
against any employer (including a public agency) in any Federal or
State court of competent jurisdiction by anyone
5That the
Hoffmann-La Roche Court did not consider
§216(b)'s implications for the Eleventh Amendment clear statement
rule is apparent from its selective quotation of § 216(b)-omitting
the words "(including a public agency)." See 493 U. S., at 167-168
("This controversy centers around one of the provisions the ADEA
incorporates, which states, in pertinent part, that an action 'may
be maintained against any employer ... in any Federal or State
court of competent jurisdiction by anyone or more employees for and
in behalf of himself or themselves and other employees similarly
situated'" (alteration in original)) (quoting 29 U. S. C. § 216(b)
(1982 ed.)).
108
or more employees for and in behalf of himself or themselves
and other employees similarly situated" (emphasis added)),
and so may be viewed as falling outside the overlap described
above.6
B
Even if § 626(b) incorporates § 216(b)'s individual
rightof-action provision, that provision itself falls short of
"unmistakable" clarity insofar as it describes the forum for suit
as "any Federal or State court of
competent jurisdiction." §
216(b) (emphasis added). For it may be that a federal court is not
"competent" under the Eleventh Amendment to adjudicate a suit by a
private citizen against a State unless the State consents to the
suit. As we explained in
Employees, "[t]he history
and tradition of the Eleventh Amendment indicate that by reason of
that barrier a federal court is not
competent to render
judgment against a
nonconsenting State." 411 U. S., at 284
(emphasis added). The Court suggests,
ante, at 76-77, that
its ability to distinguish a single precedent,
ante, at
75-76 (discussing
Kennecott Copper Corp. v.
State Tax
Comm'n, 327 U. S.
573 (1946)), illuminates this aspect of § 216(b). But the Court
neither acknowledges what
Employees had to say on this point
nor explains why it follows from the modern § 216(b)'s clarity
relative to the old § 216(b) that the modern § 216(b) is
clear enough as an
absolute matter to satisfy the
Atascadero rule, which requires "unmistakable" clarity.
That is not to say that
the FLSA as a whole lacks a clear
statement of Congress' intent to abrogate. Section 255(d)
6The other two cases upon which the Court relies, see
ante, at 74-75 (citing
McKennon v.
Nashville
Banner Publishing Co., 513 U. S. 352, 357
(1995), and
Lorillard v.
Pons, supra, at 582), are
also consistent with the view that the ADEA incorporates only
"extras" from the FLSA, not overlapping provisions. In neither case
did we consider whether the ADEA incorporates the part of § 216(b)
that creates a private action "against any employer (including a
public agency) in any Federal or State court of competent
jurisdiction."
109
elucidates the ambiguity within § 216(b). Section 255(d), it
will be recalled, suspended the running of the statute of
limitations on actions under § 216(b) brought against a State or
political subdivision on or before April 18, 1973 (the date
Employees was decided) until "one hundred and eighty days
after the effective date of the [1974 Amendments], except that such
suspension shall not be applicable if in such action judgment has
been entered for the defendant on the grounds other than
State
immunity from Federal jurisdiction." § 255(d) (emphasis added).
As I explained in Part II,7 however, not only does § 255(d) on its
face apply only to the FLSA, but Congress' failure to amend the
ADEA's general incorporation of § 255, 29 U. S. C. § 626(e) (1988
ed.), strongly suggests that Congress paid scant attention to the
impact of § 255(d) upon the ADEA. Accordingly, I cannot accept the
notion that § 255(d) furnishes clarifying guidance in interpreting
§ 216(b) for ADEA purposes, whatever assistance it might provide to
a construction of § 216(b) for FLSA purposes.8
***
For these reasons, I respectfully dissent from Part III of the
Court's opinion.
7
Supra, at 101-105.
8 While § 255 once was incorporated by the ADEA, see § 7(e), 81
Stat. 605, 29 U. S. C. § 626(e) (1988 ed.), the ADEA was amended in
1991 to remove the incorporating reference, see Civil Rights Act of
1991, § 115, 105 Stat. 1079,29 U. S. C. § 626(e). The current
"unavailability" of § 255(d) for ADEA purposes perhaps explains why
the Court, which purports to examine only the statute in its
current form,
ante, at 76, does not rely on § 255(d). But,
as I have explained, without the light § 255(d) sheds on § 216(b),
§ 216(b) falls short of a clear statement of Congress' intent to
abrogate.
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