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| [1] | United States Supreme Court |
| [2] | Nos. 98-791, 98-796 |
| [3] | 120 S.Ct. 631, 145 L.Ed.2d 522, 2000.SCT.0042006 <http://www.versuslaw.com>,
68 USLW 4016, 81 Fair Empl.Prac.Cas. (BNA) 970 |
| [4] | January 11, 2000 |
| [5] | J. DANIEL KIMEL, JR., ET AL., PETITIONERS v. FLORIDA BOARD OF REGENTS ET AL. UNITED STATES, PETITIONER v. FLORIDA BOARD OF REGENTS ET AL. |
| [6] | SYLLABUS BY THE COURT |
| [7] | Syllabus |
| [8] | OCTOBER TERM, 1999 |
| [9] | KIMEL v. FLORIDA BD. OF REGENTS |
| [10] | NOTE: Where it is feasible, a syllabus (headnote) will be released, as
is being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. |
| [11] | SUPREME COURT OF THE UNITED STATES |
| [12] | KIMEL et al. v. FLORIDA BOARD OF REGENTS et al. |
| [13] | Certiorari To The United States Court Of Appeals For The Eleventh Circuit |
| [14] | No. 98-791. |
| [15] | Argued October 13, 1999 |
| [16] | Decided January 11, 2000*fn1 |
| [17] | 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)(1).
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. |
| [18] | 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. 7-28. |
| [19] | (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 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. 8-13. |
| [20] | (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 U. S. 445, 456. Pp. 13-16. |
| [21] | (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. 16-18. |
| [22] | (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. 18-27. |
| [23] | (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
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. 18-24. |
| [24] | (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 constitutional violation. That failure
confirms that Congress had no reason to believe that broad prophylactic
legislation was necessary in this field. Pp. 24-27. |
| [25] | (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. 27-28. |
| [26] | 139 F. 3d 1426, affirmed. |
| [27] | 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. Thomas, J., filed an opinion concurring in part and
dissenting in part, in which Kennedy, J., joined. |
| [28] | Court Below: 139 F. 3d 1426 |
| [29] | The opinion of the court was delivered by: Justice O'Connor |
| [30] | Opinion of the Court |
| [31] | KIMEL v. FLORIDA BD. OF REGENTS |
| [32] | on writs of certiorari to the united states court of appeals for the eleventh
circuit |
| [33] | 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
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. |
| [34] | I. |
| [35] | A. |
| [36] | 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 sixty-five 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 specifically incorporates
§16(b) of the FLSA, 29 U. S. C. §216(b). |
| [37] | 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, 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). |
| [38] | B. |
| [39] | 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 Narz 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. |
| [40] | 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.,
May 17, 1996), App. to Pet. for Cert. in No. 98-796, pp. 57a-62a. |
| [41] | 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 compensatory 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. 5:9cv207-RH (ND
Fla., Nov. 5, 1996), App. to Pet. for Cert. in No. 98-796, pp. 72a-76a. |
| [42] | 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. 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. |
| [43] | 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 (CA10 1998) (same), cert.
pending, No. 98-1178; Coger v. Board of Regents of the 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 the 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 (CA11 1998) (case below). |
| [44] | II. |
| [45] | The Eleventh Amendment states: |
| [46] | "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." |
| [47] | 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 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 non-consenting
States. College Savings Bank v. Florida Prepaid Post-secondary Ed. Expense
Bd., 527 U. S. ____, ____ (1999) (slip op., at 2-3); 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. |
| [48] | III. |
| [49] | 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) 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. |
| [50] | 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"); Hoffman-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. 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. |
| [51] | 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' intent, in the ADEA, to abrogate
the States' Eleventh Amendment immunity to suits by individuals. |
| [52] | 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 7, 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 4. 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. Post, at 5. 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. |
| [53] | We also disagree with Justice Thomas' remaining points, see post, at 7-12.
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 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 9, 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 any one or more employees for and in behalf of himself or themselves
and other employees similarly situated"). |
| [54] | Justice Thomas also concludes that §216(b) itself fails the clear
statement test. Post, at 10-12. 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 10-11. 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 11, 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
acknowledgement 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 5; see also post, at 11-12. 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. |
| [55] | IV. |
| [56] | A. |
| [57] | 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.
Wyoming, 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. |
| [58] | In Seminole 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 ____ (slip op., at 4); Florida
Prepaid Post-secondary Ed. Expense Bd. v. College Savings Bank, 527 U. S.
____, ____ (1999) (slip op., at 6-7); Alden v. Maine, 527 U. S. ____, ____
(1999) (slip op., at 1-2). 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 ____ (slip op., at 16)
("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. |
| [59] | Justice Stevens disputes that well-established precedent again. Compare
post, at 1-7, with Alden, supra, at ____ (slip op., at 1-58) (Souter, J.,
dissenting); College Savings Bank, 527 U. S., at ____ (slip op., at 2, n.
2) (Stevens, J., dissenting); id., at ____ (slip op., at 7-13) (Breyer,
J., dissenting); Florida Prepaid, supra, at ____ (slip op., at 18-19) (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 common-law
tradition, the structure and history of the Constitution make clear that
the immunity exists today by constitutional design." 527 U. S., at ____
(slip op., at 23-24). For purposes of today'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 ____ (slip
op., at 2-45); College Savings Bank, supra, at ____ (slip op., at 1-2, 20-24);
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 difficult 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 5-6. 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. |
| [60] | 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 ____ (slip op., at 2); Florida
Prepaid, supra, at ____ (slip op., at 7-8); Alden, supra, at ____ (slip
op., at 46-48); 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. |
| [61] | B. |
| [62] | The Fourteenth Amendment provides, in relevant part: |
| [63] | "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." |
| [64] | "Section 5. The Congress shall have power to enforce, by appropriate legislation,
the provisions of this article." |
| [65] | 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 `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. |
| [66] | 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. |
| [67] | 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 purportedly
targeted by RFRA's substantive provisions. 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. |
| [68] | 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 ____ (slip op., at 11) (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 ____ (slip op., at 18-19). 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 ____ (slip op., at 19). 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 ____
(slip op., at 19-20). |
| [69] | C. |
| [70] | Applying the same "congruence and proportionality" test in these cases,
we conclude that the ADEA is not "appropriate 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. |
| [71] | 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 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.
Peña, 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. |
| [72] | 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 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 determined 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. |
| [73] | 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. |
| [74] | 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 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. |
| [75] | 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 422-423 (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
discrimination less than absolute, the Act's substantive requirements nevertheless
remain at a level akin to our heightened scrutiny cases under the Equal
Protection Clause. |
| [76] | 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. |
| [77] | 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., Florida Prepaid, 527 U. S., at ____-____ (slip op., at 11-18); 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)). |
| [78] | 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. 93-913, 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 Cong. Rec. 34742 (1967)
(remarks of Sen. Steiger); id., at 34749 (remarks of Rep. Donohue); 110
Cong. 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 Cong. 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 ..."). |
| [79] | 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 ____ (slip op., at 13). |
| [80] | 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 discrimination by the States. See Florida Prepaid, 527 U. S., at
___ (slip op., at 11). |
| [81] | 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 ____ (slip op., at 17-18); City of Boerne, 521 U. S., 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. |
| [82] | D. |
| [83] | 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.*fn2
Those avenues of relief remain available today, just as they were before
this decision. |
| [84] | 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. |
| [85] | It is so ordered. |
| [86] | Opinion of Stevens, J. |
| [87] | KIMEL v. FLORIDA BD. OF REGENTS |
| [88] | SUPREME COURT OF THE UNITED STATES |
| [89] | Nos. 98-791 and 98-796 |
| [90] | J. DANIEL KIMEL, Jr., et al., PETITIONERS v. FLORIDA BOARD OF REGENTS
et al. |
| [91] | UNITED STATES, PETITIONER v. FLORIDA BOARD OF REGENTS et al. |
| [92] | on writs of certiorari to the united states court of appeals for the eleventh
circuit |
| [93] | [January 11, 2000] |
| [94] | Justice Stevens, with whom Justice Souter, Justice Ginsburg, and Justice
Breyer join, dissenting in part and concurring in part. |
| [95] | Congress' power to regulate the American economy includes the power to
regulate both the public and the private 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). |
| [96] | 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 National Government, 54 Colum. L.
Rev. 543 (1954). |
| [97] | 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.*fn3
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. |
| [98] | 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.*fn4
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 most responsive and careful manner.*fn5
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.*fn6 |
| [99] | 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,*fn7
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 judge-made 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. |
| [100] | 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, today's decision (relying as it does on Seminole
Tribe) rests entirely on a novel judicial interpretation of the doctrine
of sovereign immunity,*fn8
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). |
| [101] | 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 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.
___ (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.*fn9
The kind of judicial activism manifested in cases like Seminole Tribe, Alden
v. Maine, Florida Prepaid Post-secondary Ed. Expense Bd. v. College Savings
Bank, 527 U. S. ___ (1999), and College Savings Bank v. Florida Prepaid
Post-secondary Ed. Expense Bd., 527 U. S. ___ (1999), represents such a
radical departure from the proper role of this Court that it should be opposed
whenever the opportunity arises. |
| [102] | Accordingly, I respectfully dissent. |
| [103] | Opinion of Thomas, J. |
| [104] | KIMEL v. FLORIDA BD. OF REGENTS |
| [105] | SUPREME COURT OF THE UNITED STATES |
| [106] | Nos. 98-791 and 98-796 |
| [107] | J. DANIEL KIMEL, Jr., et al., PETITIONERS v. FLORIDA BOARD OF REGENTS
et al. |
| [108] | UNITED STATES, PETITIONER v. FLORIDA BOARD OF REGENTS et al. |
| [109] | on writs of certiorari to the united states court of appeals for the eleventh
circuit |
| [110] | [January 11, 2000] |
| [111] | Justice Thomas, with whom Justice Kennedy joins, concurring in part and
dissenting in part. |
| [112] | 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.*fn10 |
| [113] | I. |
| [114] | 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. |
| [115] | 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 9. In Employees, we
confronted the pre-1974 version of the Fair Labor Standards Act (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 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.)). |
| [116] | 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. |
| [117] | II. |
| [118] | 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 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). |
| [119] | 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. |
| [120] | 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. |
| [121] | 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 11. But §6(d)(2)(A),
another of the 1974 Amendments, suggests just the opposite. Section 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).*fn11
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"),*fn12
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 11 (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, 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). |
| [122] | 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. |
| [123] | 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 11-12. 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 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. |
| [124] | III. |
| [125] | 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. |
| [126] | A. |
| [127] | 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 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. |
| [128] | 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).*fn13 |
| [129] | 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 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 10 (" `[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) (citation
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,*fn14
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 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 any one 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.*fn15 |
| [130] | B. |
| [131] | Even if §626(b) incorporates §216(b)'s individual right-of-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 non-consenting State." 411 U. S.,
at 284 (emphasis added). The Court suggests, ante, at 12, that its ability
to distinguish a single precedent, ante, at 10 (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. |
| [132] | That is not to say that the FLSA as a whole lacks a clear statement of
Congress' intent to abrogate. Section 255(d) 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,*fn16
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.*fn17 |
| [133] | For these reasons, I respectfully dissent from Part III of the Court's
opinion. |
|
|
|
| Opinion Footnotes | |
|
|
|
| [134] | *fn1 Together with No. 98-796, United States v. Florida Board of Regents
et al., also on certiorari to the same court. |
| [135] | *fn2 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. Ann. §§112.044, 760.01 et seq. (1997 and Supp. 1998);
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. Comp. Stat., ch. 775, §5/1-101
et seq. (1998); Ind. Code §22-9-2-1 et seq. (1993); Iowa 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. (West
1997 and Supp. 1998); Mich. Comp. 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. §2.1-116.10
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). |
| [136] | *fn3 The
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 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"). |
| [137] | *fn4 When
Congress expanded the 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. |
| [138] | *fn5 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 Post-secondary Ed. Expense Bd., 527 U. S.
___, ___ (1999) (slip op., at 13) (dissenting opinion); see also Printz
v. United States, 521 U. S 898, 976-978 (1997) (Breyer, J., dissenting). |
| [139] | *fn6 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 Amdt. 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 constitutional
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. |
| [140] | *fn7 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. |
| [141] | *fn8 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). |
| [142] | *fn9 See,
e.g., College Savings Bank v. Florida Prepaid Post-secondary Ed. Expense
Bd., 527 U. S., at ___ (slip op., at 8-14) (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"). |
| [143] | *fn10 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. |
| [144] | *fn11 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 10-12. 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. |
| [145] | *fn12 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). |
| [146] | *fn13 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). |
| [147] | *fn14 That
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 Hoffmann-La Roche, Inc. v. Sperling, 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 any one 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.)). |
| [148] | *fn15 The
other two cases upon which the Court relies, see ante, at 10 (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." |
| [149] | *fn16 Supra,
at 5-6. |
| [150] | *fn17 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 12, 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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