OCTOBER TERM, 2002
Syllabus
NEVADA DEPARTMENT OF HUMAN RESOURCES ET AL.
v. HIBBS ET
AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT
No. 01-1368. Argued January 15, 2003-Decided May 27, 2003
Respondent Hibbs (hereinafter respondent), an employee of the
Nevada Department of Human Resources (Department), sought leave to
care for his ailing wife under the Family and Medical Leave Act of
1993 (FMLA), which entitles an eligible employee to take up to 12
work weeks of unpaid leave annually for the onset of a "serious
health condition" in the employee's spouse and for other reasons,
29 U. S. C. § 2612(a)(I)(C). The Department granted respondent's
request for the full 12 weeks of FMLA leave, but eventually
informed him that he had exhausted that leave and that he must
report to work by a certain date. Respondent failed to do so and
was terminated. Pursuant to FMLA provisions creating a private
right of action to seek both equitable relief and money damages
"against any employer (including a public agency)," § 2617(a)(2),
that "interfere[d] with, restrain[ed], or den[ied] the exercise of"
FMLA rights, § 2615(a)(I), respondent sued petitioners, the
Department and two of its officers, in Federal District Court
seeking damages and injunctive and declaratory relief for,
inter
alia, violations of § 2612(a)(I)(C). The court awarded
petitioners summary judgment on the grounds that the FMLA claim was
barred by the Eleventh Amendment and that respondent's Fourteenth
Amendment rights had not been violated. The Ninth Circuit
reversed.
Held: State employees may recover money damages in
federal court in the event of the State's failure to comply with
the FMLA's family-care provision. Congress may abrogate the States'
Eleventh Amendment immunity from suit in federal court if it makes
its intention to abrogate unmistakably clear in the language of the
statute and acts pursuant to a valid exercise of its power under §
5 of the Fourteenth Amendment. See,
e. g., Board of Trustees of
Univ. of Ala. v.
Garrett, 531 U. S. 356, 363. The
FMLA satisfies the clear statement rule. See
Kimel v.
Florida Bd. of Regents, 528 U. S. 62, 73-78.
Congress also acted within its authority under § 5 of the
Fourteenth Amendment when it sought to abrogate the States'
immunity for purposes of the FMLA's family-leave provision. In the
exercise of its § 5 power, Congress may enact socalled prophylactic
legislation that proscribes facially constitutional con-
722
duct in order to prevent and deter unconstitutional conduct,
e. g., City of Boerne v.
Flores, 521 U. S. 507, 536, but
it may not attempt to substantively redefine the States' legal
obligations,
Kimel, supra, at 88. The test for
distinguishing appropriate prophylactic legislation from
substantive redefinition is that valid § 5 legislation must exhibit
"congruence and proportionality between the injury to be prevented
or remedied and the means adopted to that end."
City of Boerne,
supra, at 520. The FMLA aims to protect the right to be free
from gender-based discrimination in the workplace. Statutory
classifications that distinguish between males and females are
subject to heightened scrutiny, see,
e. g., Craig v.
Boren, 429 U.
S. 190, 197-199; i.
e., they must "serv[e] important
governmental objectives," and "the discriminatory means employed
[must be] substantially related to the achievement of those
objectives,"
United States v.
Virginia, 518 U. S. 515, 533. When
it enacted the FMLA, Congress had before it significant evidence of
a long and extensive history of sex discrimination with respect to
the administration of leave benefits by the States, which is
weighty enough to justify the enactment of prophylactic § 5
legislation. Cf.
Fitzpatrick v.
Bitzer, 427 U. S. 445, 456.
Garrett, supra, and
Kimel, supra, in which the Court
reached the opposite conclusion, are distinguished on the ground
that the § 5 legislation there at issue responded to a purported
tendency of state officials to make age- or disability-based
distinctions, characteristics that are not judged under a
heightened review standard, but pass equal protection muster if
there is a rational basis for enacting them. See,
e. g., Kimel,
supra, at 86. Here, because the standard for demonstrating the
constitutionality of a gender-based classification is more
difficult to meet than the rational-basis test, it was easier for
Congress to show a pattern of state constitutional violations. Cf.
South Carolina v.
Katzenbach, 383 U. S. 301, 308-313.
The impact of the discrimination targeted by the FMLA, which is
based on mutually reinforcing stereotypes that only women are
responsible for family caregiving and that men lack domestic
responsibilities, is significant. Moreover, Congress' chosen
remedy, the FMLA's family-care provision, is "congruent and
proportional to the targeted violation,"
Garrett, supra, at
374. Congress had already tried unsuccessfully to address this
problem through Title VII of the Civil Rights Act of 1964 and the
Pregnancy Discrimination Act. Where previous legislative attempts
have failed, see
Katzenbach, supra, at 313, such problems
may justify added prophylactic measures in response,
Kimel,
supra, at 88. By creating an across-the-board, routine
employment benefit for all eligible employees, Congress sought to
ensure that family-care leave would no longer be stigmatized as an
inordinate drain on the workplace caused by female
723
employees, and that employers could not evade leave obligations
simply by hiring men. Unlike the statutes at issue in
City of
Boerne, Kimel, and
Garrett, which applied broadly to
every aspect of state employers' operations, the FMLA is narrowly
targeted at the faultline between work and family-precisely where
sex-based overgeneralization has been and remains strongest-and
affects only one aspect of the employment relationship. Also
significant are the many other limitations that Congress placed on
the FMLA's scope. See
Florida Prepaid Postsecondary Ed. Expense
Bd. v.
College Savings Bank, 527 U. S. 627, 647. For
example, the FMLA requires only unpaid leave, § 2612(a)(1); applies
only to employees who have worked for the employer for at least one
year and provided 1,250 hours of service within the last 12 months,
§ 2611(2)(A); and does not apply to employees in high-ranking or
sensitive positions, including state elected officials, their
staffs, and appointed policymakers, §§2611(2)(B)(i) and (3),
203(e)(2)(C). pp.726-740.
273 F.3d
844, affirmed.
REHNQUIST, C. J., delivered the opinion of the Court, in which
O'CONNOR, SOUTER, GINSBURG, and BREYER, JJ., joined. SOUTER, J.,
filed a concurring opinion, in which GINSBURG and BREYER, JJ.,
joined,
post, p. 740. STEVENS, J., filed an opinion
concurring in the judgment,
post, p. 740. SCALIA, J., filed
a dissenting opinion,
post, p. 741. KENNEDY, J., filed a
dissenting opinion, in which SCALIA and THOMAS, JJ., joined,
post, p.744.
Paul G.
Taggart, Deputy Attorney General of
Nevada, argued the cause for petitioners. With him on the briefs
were
Frankie Sue Del Papa, Attorney General, and
Traci L.
Lovitt.
Cornelia T. L. Pillard argued the cause for respondent Hibbs.
With her on the brief were Jonathan
J. Frankel, Judith L.
Lichtman, and Treva
J. Hearne.
Assistant Attorney General Dinh argued the cause for the United
States. With him on the brief were Solicitor General Olson,
Assistant Attorneys General Boyd and McCallum, Deputy Solicitor
General Clement, Patricia A. Millett, Mark B. Stern, and Kathleen
Kane.
*
*Briefs of
amici curiae urging reversal were filed for
the State of Alabama et al. by
Bill Pryor, Attorney General
of Alabama,
Nathan A. Forrester, Solicitor General, and
Charles B. Campbell, Deputy Solicitor Gen-
724
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
The Family and Medical Leave Act of 1993 (FMLA or Act) entitles
eligible employees to take up to 12 work weeks of unpaid leave
annually for any of several reasons, including the onset of a
"serious health condition" in an employee's spouse, child, or
parent. 107 Stat. 9, 29 U. S. C. § 2612(a) (l)(C). The Act creates
a private right of action to seek both equitable relief and money
damages "against any employer (including a public agency) in any
Federal or State court of competent jurisdiction," § 2617(a)(2),
should that em-
eral, and by the Attorneys General for their respective States
as follows:
Bruce M. Botelho of Alaska,
M. Jane Brady of
Delaware,
Earl I. Anzai of Hawaii,
Steve Carter of
Indiana,
Don Stenberg of Nebraska,
Betty D.
Montgomery of Ohio,
W A. Drew Edmondson of Oklahoma,
Charles M. Condon of South Carolina,
Paul G.
Summers of Tennessee,
John Cornyn of Texas,
Mark
Shurtleff of Utah, and
Jerry W Kilgore of Virginia; for
the Coalition for Local Sovereignty by
Kenneth B. Clark; and
for the Pacific Legal Foundation by
Deborah J. La
Fetra.
Briefs of
amici curiae urging affirmance were filed for
the State of New York et al. by
Eliot Spitzer, Attorney
General of New York,
Caitlin J. Halligan,
Solicitor General,
Michelle Aronowitz, Deputy Solicitor
General,
Denise A. Hartman, Robert H. Easton, and
David
Axinn, Assistant Solicitors General, and
Hilary Klein,
Assistant Attorney General, and by the Attorneys General for their
respective States as follows:
Richard Blumenthal of
Connecticut,
James Ryan of Illinois,
Michael Hatch of
Minnesota,
Patricia A. Madrid of New Mexico, and
Christine Q Gregoire of Washington; for the American
Federation of Labor and Congress of Industrial Organizations by
Jonathan P. Hiatt, James B. Coppess, Laurence Gold, and
Michael H. Gottesman; for the Lawyers' Committee for Civil
Rights Under Law et al. by
Sidney S.
Rosdeitcher, Barbara
R. Arnwine, Thomas J. Henderson, Michael Foreman,
Vincent A. Eng, Dennis Courtland Hayes, and
Angela
Ciccolo; for the National Women's Law Center et al. by
Walter Dellinger, Pamela Harris, Marcia D. Greenberger,
Judith C.
Appelbaum, and
Dina R. Lassow; for
Senator Christopher Dodd et al. by
Mark E. Haddad and
Carter G.
Phillips; and for Alice Kessler-Harris et
al. by
Isabelle Katz Pinzler, Conrad K. Harper, and
William T. Russell, Jr.
725
ployer "interfere with, restrain, or deny the exercise of" FMLA
rights, § 2615(a)(1). We hold that employees of the State of Nevada
may recover money damages in the event of the State's failure to
comply with the family-care provision of the Act.
Petitioners include the Nevada Department of Human Resources
(Department) and two of its officers. Respondent William Hibbs
(hereinafter respondent) worked for the Department's Welfare
Division. In April and May 1997, he sought leave under the FMLA to
care for his ailing wife, who was recovering from a car accident
and neck surgery. The Department granted his request for the full
12 weeks of FMLA leave and authorized him to use the leave
intermittently as needed between May and December 1997. Respondent
did so until August 5, 1997, after which he did not return to work.
In October 1997, the Department informed respondent that he had
exhausted his FMLA leave, that no further leave would be granted,
and that he must report to work by November 12,1997. Respondent
failed to do so and was terminated.
Respondent sued petitioners in the United States District Court
seeking damages and injunctive and declaratory relief for,
inter
alia, violations of 29 U. S. C. § 2612(a)(1)(C). The District
Court awarded petitioners summary judgment on the grounds that the
FMLA claim was barred by the Eleventh Amendment and that
respondent's Fourteenth Amendment rights had not been violated.
Respondent appealed, and the United States intervened under 28 U.
S. C. § 2403 to defend the validity of the FMLA's application to
the States. The Ninth Circuit reversed.
273 F.3d
844 (2001).
We granted certiorari, 536 U. S. 938 (2002), to resolve a split
among the Courts of Appeals on the question whether an individual
may sue a State for money damages in federal court for violation of
§ 2612(a)(1)(C). Compare
Kazmier v.
726
Widmann, 225 F.3d
519, 526, 529
(CA5 2000), with
273
F.3d 844 (case below).
For over a century now, we have made clear that the Constitution
does not provide for federal jurisdiction over suits against
nonconsenting States.
Board of Trustees of Univ. of Ala. v.
Garrett, 531
U. S. 356, 363 (2001);
Kimel v.
Florida Bd. of
Regents, 528 U. S.
62, 72-73 (2000);
College Savings Bank v.
Florida
Prepaid Postsecondary Ed. Expense Bd., 527 U. S. 666, 669-670
(1999);
Seminole Tribe of Fla. v.
Florida, 517 U. S. 44, 54 (1996);
Hans v.
Louisiana, 134 U. S. 1, 15 (1890).
Congress may, however, abrogate such immunity in federal court
if it makes its intention to abrogate unmistakably clear in the
language of the statute and acts pursuant to a valid exercise of
its power under § 5 of the Fourteenth Amendment. See
Garrett,
supra, at 363;
Blatchford v.
Native Village of
Noatak, 501 U. S.
775, 786 (1991) (citing
Dellmuth v.
Muth,
491 U. S. 223,
228 (1989)). The clarity of Congress' intent here is not fairly
debatable. The Act enables employees to seek damages "against any
employer (including a public agency) in any Federal or State court
of competent jurisdiction," 29 U. S. C. § 2617(a)(2), and Congress
has defined "public agency" to include both "the government of a
State or political subdivision thereof" and "any agency of ... a
State, or a political subdivision of a State," §§ 203(x),
2611(4)(A)(iii). We held in
Kimel that, by using
identicallanguage in the Age Discrimination in Employment Act of
1967 (ADEA), 81 Stat. 602, as amended, 29 U. S. C. § 621
et
seq., Congress satisfied the clear statement rule of
Dellmuth. 528 U. S., at 73-78. This case turns, then, on
whether Congress acted within its constitutional authority when it
sought to abrogate the States' immunity for purposes of the FMLA's
family-leave provision.
In enacting the FMLA, Congress relied on two of the powers
vested in it by the Constitution: its Article I commerce power and
its power under § 5 of the Fourteenth Amendment
727
to enforce that Amendment's guarantees.1 Congress may not
abrogate the States' sovereign immunity pursuant to its Article I
power over commerce.
Seminole Tribe, supra. Congress may,
however, abrogate States' sovereign immunity through a valid
exercise of its § 5 power, for "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."
Fitzpatrick v.
Bitzer, 427 U. S. 445, 456 (1976)
(citation omitted). See also
Garrett, supra, at 364;
Kimel, supra, at 80.
Two provisions of the Fourteenth Amendment are relevant here:
Section 5 grants Congress the power "to enforce" the substantive
guarantees of § i-among them, equal protection of the laws-by
enacting "appropriate legislation." Congress may, in the exercise
of its § 5 power, do more than simply proscribe conduct that we
have held unconstitutional. " '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.'"
Garrett, supra, at 365
(quoting
Kimel, supra, at 81);
City of Boerne v.
Flores, 521 U.
S. 507, 536 (1997);
Katzenbach v.
Morgan,
384 U. S. 641,
658 (1966). In other words, Congress may enact so-called
prophylactic
1 Compare 29 U. S. C. § 2601(b)(1) ("It is the purpose of this
Act ... to balance the demands of the workplace with the needs of
families, to promote the stability and economic security of
families, and to promote national interests in preserving family
integrity") with § 2601(b)(5) ("to promote the goal of equal
employment opportunity for women and men, pursuant to [the Equal
Protection C]lause") and § 2601(b)(4) ("to accomplish [the Act's
other purposes] in a manner that, consistent with the Equal
Protection Clause ... , minimizes the potential for employment
discrimination on the basis of sex"). See also S. Rep. No. 103-3,
p. 16 (1993) (the FMLA "is based not only on the Commerce Clause,
but also on the guarantees of equal protection and due process
embodied in the 14th Amendment"); H. R. Rep. No. 103-8, pt. 1, p.
29 (1993) (same).
728
legislation that proscribes facially constitutional conduct, in
order to prevent and deter unconstitutional conduct.
City of Boerne also confirmed, however, that it falls to
this Court, not Congress, to define the substance of constitutional
guarantees. 521 U. S., at 519-524. "The ultimate interpretation and
determination of the Fourteenth Amendment's substantive meaning
remains the province of the Judicial Branch."
Kimel, 528 U.
S., at 81. Section 5 legislation reaching beyond the scope of § l's
actual guarantees must be an appropriate remedy for identified
constitutional violations, not "an attempt to substantively
redefine the States' legal obligations."
Id., at 88. We
distinguish appropriate prophylactic legislation from "substantive
redefinition of the Fourteenth Amendment right at issue,"
id., at 81, by applying the test set forth in
City of
Boerne: Valid § 5 legislation must exhibit "congruence and
proportionality between the injury to be prevented or remedied and
the means adopted to that end," 521 U. S., at 520.
The FMLA aims to protect the right to be free from gender-based
discrimination in the workplace.2 We have held that statutory
classifications that distinguish between males and females are
subject to heightened scrutiny. See,
e. g., Craig v.
Boren, 429 U.
S. 190, 197-199 (1976). For a gender-based classification to
withstand such scrutiny, it must "serv[e] important governmental
objectives," and "the discriminatory means employed [must be]
substantially related to the achievement of those objectives."
United
2 The text of the Act makes this clear. Congress found that,
"due to the nature of the roles of men and women in our society,
the primary responsibility for family caretaking often falls on
women, and such responsibility affects the working lives of women
more than it affects the working lives of men." 29 U. S. C. §
2601(a)(5). In response to this finding, Congress sought "to
accomplish the [Act's other] purposes ... in a manner that ...
minimizes the potential for employment discrimination
on the
basis of sex by ensuring generally that leave is available ...
on a gender-neutral basis[,] and to promote the goal of
equal employment opportunity
for women and men .... "
§§2601(b)(4) and (5) (emphasis added).
729
States v.
Virginia, 518 U. S. 515, 533 (1996)
(citations and internal quotation marks omitted). The State's
justification for such a classification "must not rely on overbroad
generalizations about the different talents, capacities, or
preferences of males and females."
Ibid. We now inquire
whether Congress had evidence of a pattern of constitutional
violations on the part of the States in this area.
The history of the many state laws limiting women's employment
opportunities is chronicled in-and, until relatively recently, was
sanctioned by-this Court's own opinions. For example, in
Bradwell v.
State, 16 Wall. 130 (1873) (Illinois),
and
Goesaert v.
Cleary, 335 U. S. 464, 466 (1948)
(Michigan), the Court upheld state laws prohibiting women from
practicing law and tending bar, respectively. State laws frequently
subjected women to distinctive restrictions, terms, conditions, and
benefits for those jobs they could take. In
Muller v.
Oregon, 208 U.
S. 412, 419, n. 1 (1908), for example, this Court approved a
state law limiting the hours that women could work for wages, and
observed that 19 States had such laws at the time. Such laws were
based on the related beliefs that (1) a woman is, and should
remain, "the center of home and family life,"
Hoyt v.
Florida, 368 U.
S. 57, 62 (1961), and (2) "a proper discharge of [a woman's]
maternal functions-having in view not merely her own health, but
the well-being of the race-justif[ies] legislation to protect her
from the greed as well as the passion of man,"
Muller,
supra, at 422. Until our decision in
Reed v.
Reed, 404 U. S.
71 (1971), "it remained the prevailing doctrine that
government, both federal and state, could withhold from women
opportunities accorded men so long as any 'basis in reason' "-such
as the above beliefs-"could be conceived for the discrimination."
Virginia, supra, at 531 (quoting
Goesaert, supra, at
467).
Congress responded to this history of discrimination by
abrogating States' sovereign immunity in Title VII of the Civil
Rights Act of 1964, 78 Stat. 255, 42 U. S. C. § 2000e-2(a),
730
and we sustained this abrogation in
Fitzpatrick. But
state gender discrimination did not cease. "[I]t can hardly be
doubted that ... women still face pervasive, although at times more
subtle, discrimination ... in the job market."
Frontiero v.
Richardson, 411 U. S. 677, 686
(1973). According to evidence that was before Congress when it
enacted the FMLA, States continue to rely on invalid gender
stereotypes in the employment context, specifically in the
administration of leave benefits. Reliance on such stereotypes
cannot justify the States' gender discrimination in this area.
Virginia, supra, at 533. The long and extensive history of
sex discrimination prompted us to hold that measures that
differentiate on the basis of gender warrant heightened scrutiny;
here, as in
Fitzpatrick, the persistence of such
unconstitutional discrimination by the States justifies Congress'
passage of prophylactic § 5 legislation.
As the FMLA's legislative record reflects, a 1990 Bureau of
Labor Statistics (BLS) survey stated that 37 percent of surveyed
private-sector employees were covered by maternity leave policies,
while only 18 percent were covered by paternity leave policies. S.
Rep. No. 103-3, pp. 14-15 (1993). The corresponding numbers from a
similar BLS survey the previous year were 33 percent and 16
percent, respectively.
Ibid. While these data show an
increase in the percentage of employees eligible for such leave,
they also show a widening of the gender gap during the same period.
Thus, stereotype-based beliefs about the allocation of family
duties remained firmly rooted, and employers' reliance on them in
establishing discriminatory leave policies remained
widespread.3
3 While this and other material described leave policies in the
private sector, a 50-state survey also before Congress demonstrated
that "[t]he proportion and construction of leave policies available
to public sector employees differs little from those offered
private sector employees." The Parental and Medical Leave Act of
1986: Joint Hearing before the Subcommittee on Labor-Management
Relations and the Subcommittee on Labor
731
Congress also heard testimony that "[p]arentalleave for fathers
... is rare. Even ... [w]here child-care leave policies do exist,
men,
both in the public and private sectors, receive
notoriously discriminatory treatment in their requests for such
leave." Joint Hearing 147 (Washington Council of Lawyers) (emphasis
added). Many States offered women extended "maternity" leave that
far exceeded the typical 4to 8-week period of physical disability
due to pregnancy and childbirth,4 but very few States granted men a
parallel benefit: Fifteen States provided women up to one year of
extended maternity leave, while only four provided men with the
same. M. Lord & M. King, The State Reference Guide to
Work-Family Programs for State Employees 30 (1991). This and other
differential leave policies were not attributable to any
differential physical needs of men and women, but rather to the
pervasive sex-role stereotype that caring for family members is
women's work. 5
Standards of the House Committee on Education and Labor, 99th
Cong., 2d Sess., 33 (1986) (hereinafter Joint Hearing) (statement
of Meryl Frank, Director of the Yale Bush Center Infant Care Leave
Project). See also
id., at 29-30.
4 See,
e. g., id., at 16 (six weeks is the
medically recommended pregnancy disability leave period); H. R.
Rep. No. 101-28, pt. 1, p. 30 (1989) (referring to Pregnancy
Discrimination Act legislative history establishing four to eight
weeks as the medical recovery period for a normal childbirth).
5 For example, state employers' collective-bargaining agreements
often granted extended "maternity" leave of six months to a year to
women only. Gerald McEntee, President of the American Federation of
State, County and Municipal Employees, AFL-CIO, testified that "the
vast majority of our contracts, even though we look upon them with
great pride, really cover essentially maternity leave, and not
paternity leave." The Parental and Medical Leave Act of 1987:
Hearings before the Subcommittee on Children, Family, Drugs and
Alcoholism of the Senate Committee on Labor and Human Resources,
100th Cong., 1st Sess., pt. 1, p. 385 (1987) (hereinafter 1987
Senate Labor Hearings). In addition, state leave laws often
specified that catchallieave-without-pay provisions could be used
for extended maternity leave, but did not authorize such leave for
paternity purposes. See,
e. g., Family and Medical
Leave Act of 1987: Joint Hearing before the House Committee on Post
Office and Civil Service, 100th Cong.,
732
Finally, Congress had evidence that, even where state laws and
policies were not facially discriminatory, they were applied in
discriminatory ways. It was aware of the "serious problems with the
discretionary nature of family leave," because when "the authority
to grant leave and to arrange the length of that leave rests with
individual supervisors," it leaves "employees open to discretionary
and possibly unequal treatment." H. R. Rep. No. 103-8, pt. 2, pp.
10-11 (1993). Testimony supported that conclusion, explaining that
"[t]he lack of uniform parental and medical leave policies in the
work place has created an environment where [sex] discrimination is
rampant." 1987 Senate Labor Hearings, pt. 2, at 170 (testimony of
Peggy Montes, Mayor's Commission on Women's Affairs, City of
Chicago).
In spite of all of the above evidence, JUSTICE KENNEDY argues in
dissent that Congress' passage of the FMLA was unnecessary because
"the States appear to have been ahead of Congress in providing
gender-neutral family leave benefits,"
post, at 750, and
points to Nevada's leave policies in particular,
post, at
755. However, it was only "[s]ince Federal family leave legislation
was first introduced" that the States had even "begun to consider
similar family leave initiatives." S. Rep. No. 103-3, at 20; see
also S. Rep. No. 102-
1st Sess., 2-5 (1987) (Rep. Gary Ackerman recounted suffering
expressly sex-based denial of unpaid leave of absence where benefit
was ostensibly available for "child care leave").
Evidence pertaining to parenting leave is relevant here because
state discrimination in the provision of both types of benefits is
based on the same gender stereotype: that women's family duties
trump those of the workplace. JUSTICE KENNEDY'S dissent
(hereinafter dissent) ignores this common foundation that, as
Congress found, has historically produced discrimination in the
hiring and promotion of women. See
post, at 748-749.
Consideration of such evidence does not, as the dissent contends,
expand our § 5 inquiry to include
"general gender-based
stereotypes in employment."
Post, at 749 (emphasis added).
To the contrary, because parenting and family leave address very
similar situations in which work and family responsibilities
conflict, they implicate the same stereotypes.
733
68, p. 77 (1991) (minority views of Sen. Durenberger) ("[S]o few
states have elected to enact similar legislation at the state
level").
Furthermore, the dissent's statement that some States "had
adopted some form of family-care leave" before the FMLA's
enactment,
post, at 750, glosses over important shortcomings
of some state policies. First, seven States had childcare leave
provisions that applied to women only. Indeed, Massachusetts
required that notice of its leave provisions be posted only in
"establishment[s] in which females are employed." 6 These laws
reinforced the very stereotypes that Congress sought to remedy
through the FMLA. Second, 12 States provided their employees no
family leave, beyond an initial childbirth or adoption, to care for
a seriously ill child or family member.7 Third, many States
pro-
6 Mass. Gen. Laws, ch. 149, § 105D (West 1997) (providing leave
to "female employee[s]" for childbirth or adoption); see also 3
Colo. Code Regs. § 708-1, Rule 80.8 (2002) (pregnancy disability
leave only); Iowa Code § 216.6(2) (2000) (former § 601A.6(2))
(same); Kan. Admin. Regs. 21-32-6(d) (2003) ("a reasonable period"
of maternity leave for female employees only); N. H. Stat. Ann. §
354-A:7(VI)(b) (Michie Supp. 2000) (pregnancy disability leave
only); La. Stat. Ann. § 23:1008(A)(2) (West Supp. 1993) (repealed
1997) (4-month maternity leave for female employees only); Tenn.
Code Ann. §4-21-408(a) (1998) (same).
The dissent asserts that four of these schemes-those of
Colorado, Iowa, Louisiana, and New Hampshire-concern "pregnancy
disability leave only."
Post, at 752. But Louisiana provided
women with four months of such leave, which far exceeds the
medically recommended pregnancy disability leave period of six
weeks. See n. 4,
supra. This genderdiscriminatory policy is
not attributable to any different physical needs of men and women,
but rather to the invalid stereotypes that Congress sought to
counter through the FMLA. See
supra, at 731.
7 See 3 Colo. Code Regs. § 708-1, Rule 80.8 (2002); Del. Code
Ann., Tit. 29, § 5116 (1997); Iowa Code § 216.6(2) (2000); Kan.
Admin. Regs. 21-32-6 (2003); Ky. Rev. Stat. Ann. § 337.015 (Michie
2001); La. Stat. Ann. § 23:1008(A)(2) (West Supp. 1993); Mass. Gen.
Laws, ch. 149, § 105(D) (West 1997); Mo. Rev. Stat. § 105.271
(2000); N. H. Stat. Ann. § 354-A:7(VI)(b) (Michie Supp. 2000); N.
Y. Lab. Law §201-c (West 2002); Tenn. Code
734
vided no statutorily guaranteed right to family leave, offering
instead only voluntary or discretionary leave programs. Three
States left the amount of leave time primarily in employers'
hands.8 Congress could reasonably conclude that such discretionary
family-leave programs would do little to combat the stereotypes
about the roles of male and female employees that Congress sought
to eliminate. Finally, four States provided leave only through
administrative regulations or personnel policies, which Congress
could reasonably conclude offered significantly less firm
protection than a federallaw.9 Against the above backdrop of
limited state leave policies, no matter how generous petitioners'
own may have been, see
post, at 755 (dissent), Congress was
justified in enacting the FMLA as remediallegislation.10
Ann. §4-21-408(a) (1998); U. S. Dept. of Labor, Women's Bureau,
State Maternity/Family Leave Law, p. 12 (June 1993) (citing a
Virginia personnel policy).
8 See 3 Colo. Code Regs. § 708-1, Rule 80.8 (2002); Kan. Admin.
Regs. 21-32-6 (2003); N. H. Stat. Ann. § 354-A:7(VI)(b) (Michie
Supp. 2000). Oklahoma offered only a system by which employees
could voluntarily donate leave time for colleagues' family
emergencies. Okla. Stat., Tit. 74, § 840-2.22 (historical note)
(West 2002).
9 See 3 Colo. Code Regs. § 708-1, Rule 80.8 (2002); Kan. Admin.
Regs. 21-32-6 (2003); Wis. Admin. Code ch. DWD 225 (1997) (former
ch. ILHR 225); State Maternity/Family Leave Law,
supra, at
12 (Virginia).
10 Contrary to the dissent's belief, we do not hold that
Congress may "abrogat[e] state immunity from private suits whenever
the State's social benefits program is not enshrined in the
statutory code and provides employers with discretion,"
post, at 753, or when a State does not confer social
benefits "as generous or extensive as Congress would later deem
appropriate,"
post, at 752. The dissent misunderstands the
purpose of the FMLA's family-leave provision. The FMLA is not a
"substantive entitlement program,"
post, at 754; Congress
did not create a particular leave policy for its own sake. See
infra, at 737-738. Rather, Congress sought to adjust
family-leave policies in order to eliminate their reliance on, and
perpetuation of, invalid stereotypes, and thereby dismantle
persisting gender-based barriers to the hiring, retention, and
promotion of women in the workplace. In pursuing that goal, for the
reasons discussed above,
735
In sum, the States' record of unconstitutional participation in,
and fostering of, gender-based discrimination in the administration
of leave benefits is weighty enough to justify the enactment of
prophylactic § 5 legislation.ll
We reached the opposite conclusion in
Garrett and
Kimel.
In those cases, the § 5 legislation under review responded to a
purported tendency of state officials to make age- or
disability-based distinctions. Under our equal protection case law,
discrimination on the basis of such characteristics is not judged
under a heightened review standard, and passes muster if there is
"a rational basis for doing so at a classbased level, even if it
'is probably not true' that those reasons are valid in the majority
of cases."
Kimel, 528 U. S., at 86 (quoting
Gregory
v.
Ashcroft, 501 U. S. 452, 473
(1991)). See also
Garrett, 531 U. S., at 367 ("States are
not required by the Fourteenth Amendment to make special
accommodations for the disabled, so long as their actions toward
such individuals are rational"). Thus, in order to impugn the
constitutionality of state discrimination against the disabled or
the elderly, Congress must identify, not just the existence of
ageor disability-based state decisions, but a "widespread pattern"
of irrational reliance on such criteria.
Kimel, supra, at
90. We found no such showing with respect to the ADEA and Title I
of the Americans with Disabilities Act of 1990 (ADA).
Kimel,
supra, at 89;
Garrett, supra, at 368.
supra, at 733-734 and this page, Congress reasonably
concluded that state leave laws and practices should be brought
within the Act.
11 Given the extent and specificity of the above record of
unconstitutional state conduct, it is difficult to understand the
dissent's accusation that we rely on "a simple recitation of a
general history of employment discrimination against women."
Post, at 746. As we stated above, our holding rests on
congressional findings that, at the time the FMLA was enacted,
States "rel[ied] on invalid gender stereotypes in the employment
context,
specifically in the administration of leave benefits."
Supra, at 730 (emphasis added). See
supra, at
730-732.
736
Here, however, Congress directed its attention to state gender
discrimination, which triggers a heightened level of scrutiny. See,
e. g., Craig, 429 U. S., at 197-199. Because the standard
for demonstrating the constitutionality of a gender-based
classification is more difficult to meet than our rational-basis
test-it must "serv[e] important governmental objectives" and be
"substantially related to the achievement of those objectives,"
Virginia, 518 U. S., at 533-it was easier for Congress to
show a pattern of state constitutional violations. Congress was
similarly successful in
South Carolina v.
Katzenbach,
383 U. S. 301,
308-313 (1966), where we upheld the Voting Rights Act of 1965:
Because racial classifications are presumptively invalid, most of
the States' acts of race discrimination violated the Fourteenth
Amendment.
The impact of the discrimination targeted by the FMLA
is significant. Congress determined:
"Historically, denial or curtailment of women's employment
opportunities has been traceable directly to the pervasive
presumption that women are mothers first, and workers second. This
prevailing ideology about women's roles has in turn justified
discrimination against women when they are mothers or
mothers-tobe." Joint Hearing 100.
Stereotypes about women's domestic roles are reinforced by
parallel stereotypes presuming a lack of domestic responsibilities
for men. Because employers continued to regard the family as the
woman's domain, they often denied men similar accommodations or
discouraged them from taking leave. These mutually reinforcing
stereotypes created a self-fulfilling cycle of discrimination that
forced women to continue to assume the role of primary family
caregiver, and fostered employers' stereotypical views about
women's commitment to work and their value as employees. Those
perceptions, in turn, Congress reasoned, lead to subtle
discrimination that may be difficult to detect on a case-by-case
basis.
737
We believe that Congress' chosen remedy, the family-care leave
provision of the FMLA, is "congruent and proportional to the
targeted violation,"
Garrett, supra, at 374. Congress had
already tried unsuccessfully to address this problem through Title
VII and the amendment of Title VII by the Pregnancy Discrimination
Act, 42 U. S. C. § 2000e(k). Here, as in
Katzenbach, supra,
Congress again confronted a "difficult and intractable proble[m],"
Kimel, supra, at 88, where previous legislative attempts had
failed. See
Katzenbach, supra, at 313 (upholding the Voting
Rights Act). Such problems may justify added prophylactic measures
in response.
Kimel, supra, at 88.
By creating an across-the-board, routine employment benefit for
all eligible employees, Congress sought to ensure that family-care
leave would no longer be stigmatized as an inordinate drain on the
workplace caused by female employees, and that employers could not
evade leave obligations simply by hiring men. By setting a minimum
standard of family leave for
all eligible employees,
irrespective of gender, the FMLA attacks the formerly
state-sanctioned stereotype that only women are responsible for
family care giving, thereby reducing employers' incentives to
engage in discrimination by basing hiring and promotion decisions
on stereotypes.
The dissent characterizes the FMLA as a "substantive entitlement
program" rather than a remedial statute because it establishes a
floor of 12 weeks' leave.
Post, at 754. In the dissent's
view, in the face of evidence of gender-based discrimination by the
States in the provision of leave benefits, Congress could do no
more in exercising its § 5 power than simply proscribe such
discrimination. But this position cannot be squared with our
recognition that Congress "is not confined to the enactment of
legislation that merely parrots the precise wording of the
Fourteenth Amendment," but may prohibit "a somewhat broader swath
of conduct, including that which is not itself forbidden by the
Amendment's text."
Kimel, supra, at 81. For example, this
Court has
738
upheld certain prophylactic provisions of the Voting Rights Act
as valid exercises of Congress' § 5 power, including the literacy
test ban and preclearance requirements for changes in States'
voting procedures. See,
e. g., Katzenbach v.
Morgan,
384 U. S. 641
(1966);
Oregon v.
Mitchell, 400 U. S. 112 (1970);
South Carolina v.
Katzenbach, supra.
Indeed, in light of the evidence before Congress, a statute
mirroring Title VII, that simply mandated gender equality in the
administration of leave benefits, would not have achieved Congress'
remedial object. Such a law would allow States to provide for no
family leave at all. Where "[t]wothirds of the nonprofessional
caregivers for older, chronically ill, or disabled persons are
working women," H. R. Rep. No. 103-8, pt. 1, at 24; S. Rep. No.
103-3, at 7, and state practices continue to reinforce the
stereotype of women as caregivers, such a policy would exclude far
more women than men from the workplace.
Unlike the statutes at issue in
City of Boerne, Kimel,
and
Garrett, which applied broadly to every aspect of state
employers' operations, the FMLA is narrowly targeted at the
faultline between work and family-precisely where sexbased
overgeneralization has been and remains strongestand affects only
one aspect of the employment relationship. Compare
Ragsdale
v.
Wolverine World Wide, Inc., 535 U. S. 81, 91 (2002)
(discussing the "important limitations of the [FMLA's] remedial
scheme"), with
City of Boerne, 521 U. S., at 532 (the
"[s]weeping coverage" of the Religious Freedom Restoration Act of
1993);
Kimel, 528 U. S., at 91 ("the indiscriminate scope of
the [ADEA's] substantive requirements"); and
Garrett, 531 U.
S., at 361 (the ADA prohibits disability discrimination "in regard
to [any] terms, conditions, and privileges of employment" (internal
quotation marks omitted)).
We also find significant the many other limitations that
Congress placed on the scope of this measure. See
Florida
Prepaid, 527 U. S., at 647 ("[W]here 'a congressional
enact-
739
ment pervasively prohibits constitutional state action in an
effort to remedy or to prevent unconstitutional state action,
limitations of this kind tend to ensure Congress' means are
proportionate to ends legitimate under § 5'" (quoting
City
of Boerne, supra, at 532-533)). The FMLA requires only
unpaid leave, 29 U. S. C. § 2612(a)(1), and applies only to
employees who have worked for the employer for at least one year
and provided 1,250 hours of service within the last 12 months, §
2611(2)(A). Employees in high-ranking or sensitive positions are
simply ineligible for FMLA leave; of particular importance to the
States, the FMLA expressly excludes from coverage state elected
officials, their staffs, and appointed policymakers. §§
2611(2)(B)(i) and (3), 203(e)
(2)(C). Employees must give
advance notice of foreseeable leave, § 2612(e), and employers may
require certification by a health care provider of the need for
leave, § 2613. In choosing 12 weeks as the appropriate leave floor,
Congress chose "a middle ground, a period long enough to serve 'the
needs of families' but not so long that it would upset 'the
legitimate interests of employers.'"
Ragsdale, supra, at 94
(quoting 29 U. S. C. §2601(b)).12 Moreover, the cause
12 Congress established 12 weeks as a floor, thus leaving States
free to provide their employees with more family-leave time if they
so choose. See 29 U. S. C. §2651(b) ("Nothing in this Act or any
amendment made by this Act shall be construed to supersede any
provision of any State or local law that provides greater family or
medical leave rights than the rights established under this Act or
any amendment made by this Act"). The dissent faults Congress for
giving States this choice, arguing that the FMLA's terms do not bar
States from granting more family-leave time to women than to men.
Post, at 756. But JUSTICE KENNEDY effectively counters his
own argument in his very next breath, recognizing that such
gender-based discrimination would "run afoul of the Equal
Protection Clause or Title VI!."
Ibid. In crafting new
legislation to remedy unconstitutional state conduct, Congress may
certainly rely on and take account of existing laws. Indeed,
Congress expressly did so here. See 29 U. S. C. §2651(a) ("Nothing
in this Act or any amendment made by this Act shall be construed to
modify or affect any Federal or State law prohibiting
discrimination on the basis of ... sex ... ").
740
740 NEVADA DEPT. OF HUMAN RESOURCES
v. HIBBS
STEVENS, J., concurring in judgment
of action under the FMLA is a restricted one: The damages
recoverable are strictly defined and measured by actual monetary
losses, §§ 2617(a)(1)(A)(i)-(iii), and the accrual period for
backpay is limited by the Act's 2-year statute of limitations
(extended to three years only for willful violations), §§
2617(c)(1) and (2).
For the above reasons, we conclude that § 2612(a)(1)(C) is
congruent and proportional to its remedial object, and can "be
understood as responsive to, or designed to prevent,
unconstitutional behavior."
City of Boerne, supra, at
532.
The judgment of the Court of Appeals is therefore
Affirmed.
JUSTICE SOUTER, with whom JUSTICE GINSBURG and JusTICE BREYER
join, concurring.
Even on this Court's view of the scope of congressional power
under § 5 of the Fourteenth Amendment, see
Board of Trustees of
Univ. of Ala. v.
Garrett, 531 U. S. 356 (2001);
Kimel v.
Florida Bd. of Regents, 528 U. S. 62 (2000);
Florida Prepaid Postsecondary Ed. Expense Bd. v.
College
Savings Bank, 527
U. S. 627 (1999), the Family and Medical Leave Act of 1993 is
undoubtedly valid legislation, and application of the Act to the
States is constitutional; the same conclusions follow
a
fortiori from my own understanding of § 5, see
Garrett,
supra, at 376 (BREYER, J., dissenting);
Kimel, supra, at
92 (STEVENS, J., dissenting);
Florida Prepaid, supra, at 648
(STEVENS, J., dissenting); see also
Katzenbach v.
Morgan, 384 U.
S. 641, 650-651 (1966). I join the Court's opinion here without
conceding the dissenting positions just cited or the dissenting
views expressed in
Seminole Tribe of Fla. v.
Florida,
517 U. S. 44, 100
(1996) (SOUTER, J., dissenting).
JUSTICE STEVENS, concurring in the judgment.
Because I have never been convinced that an Act of Congress can
amend the Constitution and because I am uncer-
741
tain whether the congressional enactment before us was truly
"'needed to secure the guarantees of the Fourteenth Amendment,'" I
write separately to explain why I join the Court's judgment.
Fitzpatrick v.
Bitzer, 427 U. S. 445, 458 (1976)
(STEVENS, J., concurring in judgment) (quoting
Katzenbach v.
Morgan, 384 U.
S. 641, 651 (1966)).
The plain language of the Eleventh Amendment poses no barrier to
the adjudication of this case because respondents are citizens of
Nevada. The sovereign immunity defense asserted by Nevada is based
on what I regard as the second Eleventh Amendment, which has its
source in judge-made common law, rather than constitutional text.
Pennsylvania v.
Union Gas Co., 491 U. S. 1,23 (1989)
(STEVENS, J., concurring). As long as it clearly expresses its
intent, Congress may abrogate that common-law defense pursuant to
its power to regulate commerce "among the several States." U. S.
Const., Art. I, § 8. The family-care provision of the Family and
Medical Leave Act of 1993 is unquestionably a valid exercise of a
power that is "broad enough to support federal legislation
regulating the terms and conditions of state employment."
Fitzpatrick, 427 U. S., at 458 (STEVENS, J., concurring in
judgment).* Accordingly, Nevada's sovereign immunity defense is
without merit.
JUSTICE SCALIA, dissenting.
I join JUSTICE KENNEDY'S dissent, and add one further
observation: The constitutional violation that is a prerequisite to
"prophylactic" congressional action to "enforce" the Fourteenth
Amendment is a violation
by the State against which the
enforcement action is taken. There is no guilt by association,
enabling the sovereignty of one State to be abridged under § 5 of
the Fourteenth Amendment because of violations by another State, or
by most other States, or even
*See Stevens, "Two Questions About Justice," 2003 U. Ill. L.
Rev. 821 (discussing
Fitzpatrick).
742
by 49 other States. We explained as much long ago in the
Civil Rights Cases, 109 U. S. 3, 14 (1883),
which invalidated a portion of the Civil Rights Act of 1875,
purportedly based on § 5, in part for the following reason:
"It applies equally to cases arising in states which have the
justest laws respecting the personal rights of citizens, and whose
authorities are ever ready to enforce such laws as to those which
arise in states that may have violated the prohibition of the
amendment."
Congress has sometimes displayed awareness of this selfevident
limitation. That is presumably why the most sweeping provisions of
the Voting Rights Act of 1965-which we upheld in
City of
Rome v.
United States, 446 U. S. 156 (1980), as
a valid exercise of congressional power under § 2 of the Fifteenth
Amendment*-were restricted to States "with a demonstrable history
of intentional racial discrimination in voting,"
id., at
177.
Today's opinion for the Court does not even attempt to
demonstrate that each one of the 50 States covered by 29 U. S. C. §
2612(a)(1)(C) was in violation of the Fourteenth Amendment. It
treats "the States" as some sort of collective entity which is
guilty or innocent as a body. "[T]he States' record of
unconstitutional participation in, and fostering of, gender-based
discrimination," it concludes, "is weighty enough to justify the
enactment of prophylactic § 5 legislation."
Ante, at 735.
This will not do. Prophylaxis in the sense of extending the remedy
beyond the violation is one thing; prophylaxis in the sense of
extending the remedy beyond the violator is something else. See
City of Rome, supra, at 177 ("Congress could rationally have
concluded
*Section 2 of the Fifteenth Amendment is practically identical
to § 5 of the Fourteenth Amendment. Compare Arndt. 14, § 5 ("The
Congress shall have power to enforce, by appropriate legislation,
the provisions of this article"), with Arndt. 15, § 2 ("The
Congress shall have power to enforce this article by appropriate
legislation").
743
that, because electoral changes
by jurisdictions with a
demonstrable history of intentional racial discrimination in
voting create the risk of purposeful discrimination, it was proper
to prohibit changes that have a discriminatory impact" (emphasis
added)).
When a litigant claims that legislation has denied him
individual rights secured by the Constitution, the court ordinarily
asks first whether the legislation is constitutional
as
applied to him. See
Broadrick v.
Oklahoma, 413 U. S. 601, 613
(1973). When, on the other hand, a federal statute is challenged as
going beyond Congress's enumerated powers, under our precedents the
court first asks whether the statute is unconstitutional
on its
face. Ante, at 727-728;
Post, at 744 (KENNEDY, J.,
dissenting); see
United States v.
Morrison, 529 U. S. 598 (2000);
City of Boerne v.
Flores, 521 U. S. 507 (1997);
United States v.
Lopez, 514 U. S. 549 (1995). If
the statute survives this challenge, however, it stands to reason
that the court may, if asked, proceed to analyze whether the
statute (constitutional on its face) can be validly applied to the
litigant. In the context of § 5 prophylactic legislation applied
against a State, this would entail examining whether the State has
itself engaged in discrimination sufficient to support the exercise
of Congress's prophylactic power.
It seems, therefore, that for purposes of defeating petitioners'
challenge, it would have been enough for respondents to demonstrate
that § 2612(a)(1)(C) was
facially valid-i.
e., that
it could constitutionally be applied to
some jurisdictions.
See
United States v.
Salerno, 481 U. S. 739, 745
(1987). (Even that demonstration, for the reasons set forth by
JusTICE KENNEDY, has not been made.) But when it comes to an
as-applied challenge, I think Nevada will be entitled to assert
that the mere facts that (1) it is a State, and (2) some States are
bad actors, is not enough; it can demand that
it be shown to
have been acting in violation of the Fourteenth Amendment.
744
744 NEVADA DEPT. OF HUMAN RESOURCES
v. HIBBS
KENNEDY, J., dissenting
JUSTICE KENNEDY, with whom JUSTICE SCALIA and JusTICE THOMAS
join, dissenting.
The Family and Medical Leave Act of 1993 makes explicit the
congressional intent to invoke § 5 of the Fourteenth Amendment to
abrogate state sovereign immunity and allow suits for money damages
in federal courts.
Ante, at 726727, and n. 1. The specific
question is whether Congress may impose on the States this
entitlement program of its own design, with mandated minimums for
leave time, and then enforce it by permitting private suits for
money damages against the States. This in turn must be answered by
asking whether subjecting States and their treasuries to monetary
liability at the insistence of private litigants is a congruent and
proportional response to a demonstrated pattern of unconstitutional
conduct by the States. See
ante, at 728;
Board of
Trustees of Univ. of Ala. v.
Garrett, 531 U. S. 356, 365
(2001);
City of Boerne v.
Flores, 521 U. S. 507, 520
(1997). If we apply the teaching of these and related cases, the
family leave provision of the Act, 29 U. S. C. § 2612(a)(1)(C), in
my respectful view, is invalid to the extent it allows for private
suits against the unconsenting States.
Congress does not have authority to define the substantive
content of the Equal Protection Clause; it may only shape the
remedies warranted by the violations of that guarantee.
City of
Boerne, supra, at 519-520. This requirement has special force
in the context of the Eleventh Amendment, which protects a State's
fiscal integrity from federal intrusion by vesting the States with
immunity from private actions for damages pursuant to federal laws.
The Commerce Clause likely would permit the National Government to
enact an entitlement program such as this one; but when Congress
couples the entitlement with the authorization to sue the States
for monetary damages, it blurs the line of accountability the State
has to its own citizens. These basic concerns underlie cases such
as
Garrett and
Kimel v.
Florida Bd. of
Regents, 528 U. S.
62 (2000), and should counsel far
745
more caution than the Court shows in holding § 2612(a)(1)(C) is
somehow a congruent and proportional remedy to an identified
pattern of discrimination.
The Court is unable to show that States have engaged in a
pattern of unlawful conduct which warrants the remedy of opening
state treasuries to private suits. The inability to adduce evidence
of alleged discrimination, coupled with the inescapable fact that
the federal scheme is not a remedy but a benefit program,
demonstrates the lack of the requisite link between any problem
Congress has identified and the program it mandated.
In examining whether Congress was addressing a demonstrated
"pattern of unconstitutional employment discrimination by the
States," the Court gives superficial treatment to the requirement
that we "identify with some precision the scope of the
constitutional right at issue."
Garrett, supra, at 365, 368.
The Court suggests the issue is "the right to be free from
gender-based discrimination in the workplace,"
ante, at 728,
and then it embarks on a survey of our precedents speaking to
"[t]he history of the many state laws limiting women's employment
opportunities,"
ante, at 729. All would agree that women
historically have been subjected to conditions in which their
employment opportunities are more limited than those available to
men. As the Court acknowledges, however, Congress responded to this
problem by abrogating States' sovereign immunity in Title VII of
the Civil Rights Act of 1964, 42 U. S. C. § 2000e-2(a).
Ante, at 729; see also
Fitzpatrick v.
Bitzer,
427 U. S. 445
(1976). The provision now before us, 29 U. S. C. § 2612(a)(1)(C),
has a different aim than Title VII. It seeks to ensure that
eligible employees, irrespective of gender, can take a minimum
amount of leave time to care for an ill relative.
The relevant question, as the Court seems to acknowledge, is
whether, notwithstanding the passage of Title VII and similar state
legislation, the States continued to engage in widespread
discrimination on the basis of gender in the pro-
746
vision of family leave benefits.
Ante, at 730. If such a
pattern were shown, the Eleventh Amendment would not bar Congress
from devising a congruent and proportional remedy. The evidence to
substantiate this charge must be far more specific, however, than a
simple recitation of a general history of employment discrimination
against women. When the federal statute seeks to abrogate state
sovereign immunity, the Court should be more careful to insist on
adherence to the analytic requirements set forth in its own
precedents. Persisting overall effects of gender-based
discrimination at the workplace must not be ignored; but simply
noting the problem is not a substitute for evidence which
identifies some real discrimination the family leave rules are
designed to prevent.
Respondents fail to make the requisite showing. The Act's
findings of purpose are devoid of any discussion of the relevant
evidence. See
Lizzi v.
Alexander, 255 F.3d
128,
135 (CA4 2001) ("In making [its] finding of
purpose, Congress did not identify, as it is required to do, any
pattern of gender discrimination by the states with respect to the
granting of employment leave for the purpose of providing family or
medical care"); see also
Chittister v.
Department of
Community and Econ. Dev., 226 F.3d
223, 228-229
(CA3 2000) ("Notably absent is any finding
concerning the existence, much less the prevalence, in public
employment of personal sick leave practices that amounted to
intentional gender discrimination in violation of the Equal
Protection Clause").
As the Court seems to recognize, the evidence considered by
Congress concerned discriminatory practices of the private sector,
not those of state employers.
Ante, at 730-731, n. 3. The
statistical information compiled by the Bureau of Labor Statistics
(BLS), which are the only factual findings the Court cites,
surveyed only private employers.
Ante, at 730. While the
evidence of discrimination by private entities may be relevant, it
does not, by itself, justify the abrogation of States' sovereign
immunity.
Garrett, 531
747
u. S., at 368 ("Congress' § 5 authority is appropriately
exercised only in response to state transgressions").
The Court seeks to connect the evidence of private
discrimination to an alleged pattern of unconstitutional behavior
by States through inferences drawn from two sources. The first is
testimony by Meryl Frank, Director of the Infant Care Leave
Project, Yale Bush Center in Child Development and Social Policy,
who surveyed both private and public employers in all 50 States and
found little variation between the leave policies in the two
sectors.
Ante, at 730-731, n. 3 (citing The Parental and
Medical Leave Act of 1986: Joint Hearing before the Subcommittee on
Labor-Management Relations and the Subcommittee on Labor Standards
of the House Committee on Education and Labor, 99th Cong., 2d
Sess., 33 (1986) (hereinafter Joint Hearing)). The second is a view
expressed by the Washington Council of Lawyers that even" '[w]here
child-care leave policies do exist, men,
both in the public and
private sectors, receive notoriously discriminatory treatment
in their requests for such leave.'"
Ante, at 731 (quoting
Joint Hearing 147) (emphasis added by the Court).
Both statements were made during the hearings on the proposed
1986 national leave legislation, and so preceded the Act by seven
years. The 1986 bill, which was not enacted, differed in an
important respect from the legislation Congress eventually passed.
That proposal sought to provide parenting leave, not leave to care
for another ill family member. Compare H. R. 4300, 99th Cong., 2d
Sess., §§ 102(3), 103(a) (1986), with 29 U. S. C. § 2612(a)(1)(C).
See also L. Gladstone, Congressional Research Service Issue Brief,
Family and Medical Leave Legislation, pp. 4-5, 10 (Oct. 26, 1995);
Tr. of Oral Arg. 43 (statement of counsel for the United States
that "the first time that the family leave was introduced and the
first time the section (5) authority was invoked was in H. R. 925,"
which was proposed in 1987). The testimony on which the Court
relies concerned the discrimination
748
with respect to the parenting leave. See Joint Hearing 31
(statement of Meryl Frank) (the Yale Bush study "evaluate[d] the
impact of the changing composition of the workplace on families
with infants");
id., at 147 (statement of the Washington
Council of Lawyers) ("[F]or the first time,
childcare
responsibilities of
both natural and adoptive mothers
and fathers will be legislatively protected"). Even if this
isolated testimony could support an inference that private sector's
gender-based discrimination in the provision of parenting leave was
parallel to the behavior by state actors in 1986, the evidence
would not be probative of the States' conduct some seven years
later with respect to a statutory provision conferring a different
benefit. The Court of Appeals admitted as much: "We recognize that
a weakness in this evidence as applied to Hibbs' case is that the
BLS and Yale Bush Center studies deal only with parental leave, not
with leave to care for a sick family member. They thus do not
document a widespread pattern of precisely the kind of
discrimination that § 2612(a)(1)(C) is intended to prevent."
273
The Court's reliance on evidence suggesting States provided men
and women with the parenting leave of different length,
ante, at 731, and n. 5, suffers from the same flaw. This
evidence concerns the Act's grant of parenting leave, §§
2612(a)(1)(A), (B), and is too attenuated to justify the family
leave provision. The Court of Appeals' conclusion to the contrary
was based on an assertion that "if states discriminate along gender
lines regarding the one kind of leave, then they are likely to do
so regarding the other." 273 F. 3d, at 859. The charge that a State
has engaged in a pattern of unconstitutional discrimination against
its citizens is a most serious one. It must be supported by more
than conjecture.
The Court maintains the evidence pertaining to the parenting
leave is relevant because both parenting and family leave
provisions respond to "the same gender stereotype: that women's
family duties trump those of the workplace."
749
Ante, at 732, n. 5. This sets the contours of the inquiry
at too high a level of abstraction. The question is not whether the
family leave provision is a congruent and proportional response to
general gender-based stereotypes in employment which "ha[ve]
historically produced discrimination in the hiring and promotion of
women,"
ibid.; the question is whether it is a proper remedy
to an alleged pattern of unconstitutional discrimination by States
in the grant of family leave. The evidence of gender-based
stereotypes is too remote to support the required showing.
The Court next argues that "even where state laws and policies
were not facially discriminatory, they were applied in
discriminatory ways."
Ante, at 732. This charge is based on
an allegation that many States did not guarantee the right to
family leave by statute, instead leaving the decision up to
individual employers, who could subject employees to
"'discretionary and possibly unequal treatment.'''
Ibid.
(quoting H. R. Rep. No. 103-8, pt. 2, pp. 10-11 (1993)). The study
from which the Court derives this conclusion examined "the parental
leave policies of Federal executive branch agencies," H. R. Rep.
No. 103-8, at 10, not those of the States. The study explicitly
stated that its conclusions concerned federal employees: "'[I]n the
absence of a national minimum standard for granting leave for
parental purposes, the authority to grant leave and to arrange the
length of that leave rests with individual supervisors, leaving
Federal employees open to discretionary and possibly unequal
treatment.'''
Id., at 10-11. A history of discrimination on
the part of the Federal Government may, in some situations, support
an inference of similar conduct by the States, but the Court does
not explain why the inference is justified here.
Even if there were evidence that individual state employers, in
the absence of clear statutory guidelines, discriminated in the
administration of leave benefits, this circumstance alone would not
support a finding of a state-sponsored pattern of discrimination.
The evidence could perhaps sup-
750
port the charge of disparate impact, but not a charge that
States have engaged in a pattern of intentional discrimination
prohibited by the Fourteenth Amendment.
Garrett, 531 U. S.,
at 372-373 (citing
Washington v.
Davis, 426 U. S. 229, 239
(1976)).
The federal-state equivalence upon which the Court places such
emphasis is a deficient rationale at an even more fundamentallevel,
however; for the States appear to have been ahead of Congress in
providing gender-neutral family leave benefits. Thirty States, the
District of Columbia, and Puerto Rico had adopted some form of
family-care leave in the years preceding the Act's adoption. The
reports in both Houses of Congress noted this fact. H. R. Rep. No.
103-8, at 32-33; S. Rep. No. 103-3, pp. 20-21 (1993); see also
Brief for State of Alabama et al. as
Amici Curiae 18-22.
Congressional hearings noted that the provision of family leave was
"an issue which has picked up tremendous momentum in the States,
with some 21 of them having some form of family or medical leave on
the books." The Family and Medical Leave Act of 1991: Hearing on H.
R. 2 before the Subcommittee on Labor-Management Relations of the
House Committee on Education and Labor, 102d Cong., 1st Sess., p. 4
(1991) (statement of Rep. Marge Roukema). Congress relied on the
experience of the States in designing the national leave policy to
be cost effective and gender neutral. S. Rep. No. 103-3, at 12-14;
The Parental and Medical Leave Act of 1987: Hearings on S. 249
before the Subcommittee on Children, Family, Drugs and Alcoholism
of the Senate Committee on Labor and Human Resources, 100th Cong.,
1st Sess., pt. 2, pp. 194-195, 533-534 (1987). Congress also
acknowledged that many States had implemented leave policies more
generous than those envisioned by the Act. H. R. Rep. No. 103-8,
pt. 1, at 50; S. Rep. No. 103-3, at 38. At the very least, the
history of the Act suggests States were in the process of solving
any existing gender-based discrimination in the provision of family
leave.
751
The Court acknowledges that States have adopted family leave
programs prior to federal intervention, but argues these policies
suffered from serious imperfections.
Ante, at 733-734. Even
if correct, this observation proves, at most, that programs more
generous and more effective than those operated by the States were
feasible. That the States did not devise the optimal programs is
not, however, evidence that the States were perpetuating
unconstitutional discrimination. Given that the States assumed a
pioneering role in the creation of family leave schemes, it is not
surprising these early efforts may have been imperfect. This is
altogether different, however, from purposeful discrimination.
The Court's lengthy discussion of the allegedly deficient state
policies falls short of meeting this standard. A great majority of
these programs exhibit no constitutional defect and, in fact, are
authorized by this Court's precedent. The Court points out that
seven States adopted leave provisions applicable only to women.
Ante, at 733. Yet it must acknowledge that three of these
schemes concerned solely pregnancy disability leave.
Ante,
at 733, n. 6 (citing 3 Colo. Code Regs. § 708-1, Rule 80.8 (2002);
Iowa Code §216.6(2) (2000); N. H. Stat. Ann. § 354-A:7(VI)(b)
(Michie Supp. 2000)). Our cases make clear that a State does not
violate the Equal Protection Clause by granting pregnancy
disability leave to women without providing for a grant of
parenting leave to men.
Geduldig v.
Aiello, 417 U. S. 484, 496497, n.
20 (1974); see also Tr. of Oral Arg. 49 (counsel for the United
States conceding that
Geduldig would permit this practice).
The Court treats the pregnancy disability scheme of the fourth
State, Louisiana, as a disguised gender-discriminatory provision of
parenting leave because the scheme would permit leave in excess of
the period Congress believed to be medically necessary for
pregnancy disability.
Ante, at 733, n. 6. The Louisiana
statute, however, granted leave only for "that period during which
the female employee is disabled on account of pregnancy, child-
752
birth, or related medical conditions." La. Stat. Ann. §
23:1008(A)(2)(b) (West Supp. 1993) (repealed 1997). Properly
administered, the scheme, despite its generous maximum, would not
transform into a discriminatory "4-month maternity leave for female
employees only."
Ante, at 733, n.6.
The Court next observes that 12 States "provided their employees
no family leave, beyond an initial childbirth or adoption."
Ante, at 733. Four of these States are those which, as
discussed above, offered pregnancy disability leave only. See
ante, at 733, n. 7 (citing 3 Colo. Code Regs. § 708-1, Rule
80.8 (2002); Iowa Code § 216.6(2) (2000); La. Stat. Ann. §
23:1008(A)(2) (West Supp. 1993) (repealed 1997); N. H. Stat. Ann. §
354-A:7(VI)(b) (Michie Supp. 2000)). Of the remaining eight States,
five offered parenting leave to both men and women on an equal
basis; a practice which no one contends suffers from a
constitutional infirmity. See
ante, at 733-734, n. 7 (citing
Del. Code Ann., Tit. 29, § 5116 (1997); Ky. Rev. Stat. Ann. §
337.015 (Michie 2001); Mo. Rev. Stat. § 105.271 (2000); N. Y. Lab.
Law § 201-c (West 2002); u. S. Dept. of Labor, Women's Bureau,
State Maternity/ Family Leave Law, p. 12 (June 1993) (discussing
the policy adopted by the Virginia Department of Personnel and
Training)). The Court does not explain how the provision of social
benefits either on a gender-neutral level (as with the parenting
leave) or in a way permitted by this Court's case law (as with the
pregnancy disability leave) offends the Constitution. Instead, the
Court seems to suggest that a pattern of unconstitutional conduct
may be inferred solely because a State, in providing its citizens
with social benefits, does not make these benefits as generous or
extensive as Congress would later deem appropriate.
The Court further chastises the States for having "provided no
statutorily guaranteed right to family leave, offering instead only
voluntary or discretionary leave programs."
Ante, at
733-734; see also
ante, at 734 ("[F]our States pro-
753
vided leave only through administrative regulations or personnel
policies"). The Court does not argue the States intended to enable
employers to discriminate in the provision of family leave; nor, as
already noted, is there evidence state employers discriminated in
the administration of leave benefits. See
supra, at 749-750.
Under the Court's reasoning, Congress seems justified in abrogating
state immunity from private suits whenever the State's social
benefits program is not enshrined in the statutory code and
provides employers with discretion.
Stripped of the conduct which exhibits no constitutional
infirmity, the Court's "exten[sive] and specifi[c] ... record of
unconstitutional state conduct,"
ante, at 735, n. 11, boils
down to the fact that three States, Massachusetts, Kansas, and
Tennessee, provided parenting leave only to their female employees,
and had no program for granting their employees (male or female)
family leave. See
ante, at 733-734, nn. 6 and 7 (citing
Mass. Gen. Laws, ch. 149, § 105D (West 1997); Kan. Admin. Regs.
21-32-6(d) (2003); Tenn. Code Ann. §421-408(a) (1998)). As already
explained,
supra, at 748-749, the evidence related to the
parenting leave is simply too attenuated to support a charge of
unconstitutional discrimination in the provision of family leave.
Nor, as the Court seems to acknowledge, does the Constitution
require States to provide their employees with any family leave at
all.
Ante, at 738. A State's failure to devise a family
leave program is not, then, evidence of unconstitutional
behavior.
Considered in its entirety, the evidence fails to document a
pattern of unconstitutional conduct sufficient to justify the
abrogation of States' sovereign immunity. The few incidents
identified by the Court "fall far short of even suggesting the
pattern of unconstitutional discrimination on which § 5 legislation
must be based."
Garrett, 531 U. S., at 370; see also
Kimel, 528 U. S., at 89-91;
City of Boerne, 521 U.
S., at 530-531. Juxtaposed to this evidence is the States' record
of addressing gender-based discrimination in the provi-
754
sion of leave benefits on their own volition. See generally
Brief for State of Alabama et al. as
Amici Curiae 5-14.
Our concern with gender discrimination, which is subjected to
heightened scrutiny, as opposed to age- or disability-based
distinctions, which are reviewed under rational standard, see
Kimel, supra, at 83-84;
Garrett, supra, at 366-367,
does not alter this conclusion. The application of heightened
scrutiny is designed to ensure gender-based classifications are not
based on the entrenched and pervasive stereotypes which inhibit
women's progress in the workplace.
Ante, at 736. This
consideration does not divest respondents of their burden to show
that "Congress identified a history and pattern of unconstitutional
employment discrimination by the States."
Garrett, supra, at
368. The Court seems to reaffirm this requirement.
Ante, at
729 ("We now inquire whether Congress had evidence of a pattern of
constitutional violations on the part of the States ... "); see
also
ante, at 735 ("[T]he States' record of unconstitutional
participation in, and fostering of, gender-based discrimination in
the administration of leave benefits is weighty enough to justify
the enactment of prophylactic § 5 legislation"). In my submission,
however, the Court does not follow it. Given the insufficiency of
the evidence that States discriminated in the provision of family
leave, the unfortunate fact that stereotypes about women continue
to be a serious and pervasive social problem would not alone
support the charge that a State has engaged in a practice designed
to deny its citizens the equal protection of the laws.
Garrett,
supra, at 369.
The paucity of evidence to support the case the Court tries to
make demonstrates that Congress was not responding with a congruent
and proportional remedy to a perceived course of unconstitutional
conduct. Instead, it enacted a substantive entitlement program of
its own. If Congress had been concerned about different treatment
of men and women with respect to family leave, a congruent
remedy
755
would have sought to ensure the benefits of any leave program
enacted by a State are available to men and women on an equal
basis. Instead, the Act imposes, across the board, a requirement
that States grant a minimum of 12 weeks of leave per year. 29 U. S.
C. § 2612(a)(1)(C). This requirement may represent Congress'
considered judgment as to the optimal balance between the family
obligations of workers and the interests of employers, and the
States may decide to follow these guidelines in designing their own
family leave benefits. It does not follow, however, that if the
States choose to enact a different benefit scheme, they should be
deemed to engage in unconstitutional conduct and forced to open
their treasuries to private suits for damages.
Well before the federal enactment, Nevada not only provided its
employees, on a gender-neutral basis, with an option of requesting
up to one year of unpaid leave, Nev. Admin. Code § 284.578(1)
(1984), but also permitted, subject to approval and other
conditions, leaves of absence in excess of one year, § 284.578(2).
Nevada state employees were also entitled to use up to 10 days of
their accumulated paid sick leave to care for an ill relative. §
284.558(1). Nevada, in addition, had a program of special
"catastrophic leave." State employees could donate their accrued
sick leave to a general fund to aid employees who needed additional
leave to care for a relative with a serious illness. Nev. Rev.
Stat. § 284.362(1) (1995).
To be sure, the Nevada scheme did not track that devised by the
Act in all respects. The provision of unpaid leave was
discretionary and subject to a possible reporting requirement. Nev.
Admin. Code § 284.578(2)(3) (1984). A congruent remedy to any
discriminatory exercise of discretion, however, is the requirement
that the grant of leave be administered on a gender-equal basis,
not the displacement of the State's scheme by a federal one. The
scheme enacted by the Act does not respect the States' autonomous
power to design their own social benefits regime.
756
Were more proof needed to show that this is an entitlement
program, not a remedial statute, it should suffice to note that the
Act does not even purport to bar discrimination in some leave
programs the States do enact and administer. Under the Act, a State
is allowed to provide women with, say, 24 weeks of family leave per
year but provide only 12 weeks of leave to men. As the counsel for
the United States conceded during the argument, a law of this kind
might run afoul of the Equal Protection Clause or Title VII, but it
would not constitute a violation of the Act. Tr. of Oral Arg. 49.
The Act on its face is not drawn as a remedy to genderbased
discrimination in family leave.
It has been long acknowledged that federal legislation which
"deters or remedies constitutional violations can fall within the
sweep of Congress' enforcement power even if in the process it
prohibits conduct which is not itself unconstitutional."
City of
Boerne, 521 U. S., at 518; see also
ante, at 737 (in
exercising its power under § 5 of the Fourteenth Amendment,
Congress "may prohibit 'a somewhat broader swath of conduct,
including that which is not itself forbidden by the Amendment's
text'" (quoting
Kimel, 528 U. S., at 81)). The Court has
explained, however, that Congress may not "enforce a constitutional
right by changing what the right is."
City of Boerne, supra,
at 519. The dual requirement that Congress identify a pervasive
pattern of unconstitutional state conduct and that its remedy be
proportional and congruent to the violation is designed to separate
permissible exercises of congressional power from instances where
Congress seeks to enact a substantive entitlement under the guise
of its § 5 authority.
The Court's precedents upholding the Voting Rights Act of 1965
as a proper exercise of Congress' remedial power are instructive.
In
South Carolina v.
Katzenbach, 383 U. S. 301 (1966), the
Court concluded that the Voting Rights Act's prohibition on state
literacy tests was an appropriate method of enforcing the
constitutional protection against racial dis-
757
crimination in voting. This measure was justified because
"Congress documented a marked pattern of unconstitutional action by
the States."
Garrett, 531 U. S., at 373 (citing
Katzenbach, supra, at 312, 313); see also
City of Boerne,
supra, at 525 ("We noted evidence in the record reflecting the
subsisting and pervasive discriminatory-and therefore
unconstitutional-use of literacy tests" (citing
Katzenbach,
supra, at 333-334)). Congress' response was a "limited remedial
scheme designed to guarantee meaningful enforcement of the
Fifteenth Amendment."
Garrett, supra, at 373. This scheme
was both congruent, because it "aimed at areas where voting
discrimination has been most flagrant,"
Katzenbach, 383 U.
S., at 315, and proportional, because it was necessary to "banish
the blight of racial discrimination in voting, which has infected
the electoral process in parts of our country for nearly a
century,"
id., at 308. The Court acknowledged Congress'
power to devise "strong remedial and preventive measures" to
safeguard voting rights on subsequent occasions, but always
explained that these measures were legitimate because they were
responding to a pattern of "the widespread and persisting
deprivation of constitutional rights resulting from this country's
history of racial discrimination."
City of Boerne, supra, at
526-527 (citing
Oregon v.
Mitchell, 400 U. S. 112 (1970);
City of Rome v.
United States, 446 U. S. 156 (1980);
Katzenbach v.
Morgan, 384 U. S. 641
(1966)).
This principle of our § 5 jurisprudence is well illustrated not
only by the Court's opinions in these cases but also by the late
Justice Harlan's dissent in
Katzenbach v.
Morgan.
There, Justice Harlan contrasted his vote to invalidate a federal
ban on New York state literacy tests from his earlier decision, in
South Carolina v.
Katzenbach, to uphold stronger
remedial measures against the State of South Carolina, such as
suspension of literacy tests, imposition of preclearance
requirements for any changes in state voting laws, and appointment
of federal voting examiners.
Katzenbach
758
v.
Morgan, supra, at 659, 667; see also
South
Carolina v.
Katzenbach, supra, at 315-323. Justice
Harlan explained that in the case of South Carolina there was
"'voluminous legislative history' as well as judicial precedents
supporting the basic congressional findings that the clear commands
of the Fifteenth Amendment had been infringed by various state
subterfuges .... Given the existence of the evil, we held the
remedial steps taken by the legislature under the Enforcement
Clause of the Fifteenth Amendment to be a justifiable exercise of
congressional initiative." 384 U. S., at 667 (quoting
South
Carolina v.
Katzenbach, supra, at 309, 329-330). By
contrast, the New York case, in his view, lacked a showing that
"there has in fact been an infringement of that constitutional
command, that is, whether a particular state practice ...
offend[ed] the command of the Equal Protection Clause of the
Fourteenth Amendment." 384 U. S., at 667. In the absence of
evidence that a State has engaged in unconstitutional conduct,
Justice Harlan would have concluded that the literacy test ban
Congress sought to impose was not an "appropriate remedial
measur[e] to redress and prevent the wrongs," but an impermissible
attempt "to define the
substantive scope of the Amendment."
Id., at 666, 668.
For the same reasons, the abrogation of state sovereign immunity
pursuant to Title VII was a legitimate congressional response to a
pattern of gender-based discrimination in employment.
Fitzpatrick v.
Bitzer, 427 U. S. 445 (1976). The
family leave benefit conferred by the Act is, by contrast, a
substantive benefit Congress chose to confer upon state employees.
See
City of Boerne, supra, at 520 ("There must be a
congruence and proportionality between the injury to be prevented
or remedied and the means adopted to that end. Lacking such a
connection, legislation may become substantive in operation and
effect"). The plain truth is Congress did not "ac[t] to accomplish
the legitimate end of enforcing judicially-recognized Fourteenth
Amendment
759
rights, [but] instead pursued an object outside the scope of
Section Five by imposing new, non-remedial legal obligations on the
states." Beck, The Heart of Federalism: Pretext Review of Means-End
Relationships, 36 U. C. D. L. Rev. 407, 440 (2003).
It bears emphasis that, even were the Court to bar unconsented
federal suits by private individuals for money damages from a
State, individuals whose rights under the Act were violated would
not be without recourse. The Act is likely a valid exercise of
Congress' power under the Commerce Clause, Art. I, § 8, cl. 3, and
so the standards it prescribes will be binding upon the States. The
United States may enforce these standards in actions for money
damages; and private individuals may bring actions against state
officials for injunctive relief under
Ex parte Young,
209 U. S. 123
(1908). What is at issue is only whether the States can be
subjected, without consent, to suits brought by private persons
seeking to collect moneys from the state treasury. Their immunity
cannot be abrogated without documentation of a pattern of
unconstitutional acts by the States, and only then by a congruent
and proportional remedy. There has been a complete failure by
respondents to carry their burden to establish each of these
necessary propositions. I would hold that the Act is not a valid
abrogation of state sovereign immunity and dissent with respect
from the Court's conclusion to the contrary.
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