|||IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
|||August 25, 2000
|||JANICE KAZMIER, PLAINTIFF-APPELLEE, AND UNITED STATES OF AMERICA, INTERVENOR
MARY WIDMANN, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AS CHIEF ATTORNEY FOR THE LOUISIANA DEPARTMENT OF SOCIAL SERVICES; STEPHEN L. MAYER, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS GENERAL COUNSEL FOR THE LOUISIANA DEPARTMENT OF SOCIAL SERVICES; GLORIA BRYANT-BANKS, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AS SECRETARY OF THE LOUISIANA DEPARTMENT OF SOCIAL SERVICES; DEFENDANTS-APPELLANTS.
|||Before Garwood, Wiener, and Dennis, Circuit Judges.
|||The opinion of the court was delivered by: Wiener, Circuit Judge
|||Appeal from the United States District Court for the Eastern District
|||Defendants-Appellants, all officials of the Louisiana Department of
Social Services (collectively "LDSS"), appeal from the district
court's denial of their motions to dismiss on grounds of sovereign immunity
(sometimes, "Eleventh Amendment immunity") a complaint brought
against LDSS by Plaintiff-Appellant Janice Kazmier under the Family and
Medical Leave Act ("FMLA").*fn1
As we conclude that the particular provisions of the FMLA that are at
issue in the instant case do not validly abrogate the State of Louisiana's
sovereign immunity, we reverse and remand with instructions to dismiss
|||I. Facts and Proceedings
|||Kazmier was fired by LDSS after she took several weeks leave during
1995: She took at least one month of leave beginning in May of 1995 after
breaking her arm in a bicycling accident, and took at least one more week
of leave at the beginning of October 1995 to care for her terminally ill
father. In addition, after breaking her wrist later that month, Kazmier
failed to return to work for the rest of the calendar year. As a result
of Kazmier's absences, LDSS terminated her employment on January 4, 1996.
|||Kazmier filed suit against LDSS in federal district court early in 1997,
alleging that LDSS's termination of her employment violated several provisions
of the FMLA. LDSS filed a motion to dismiss, contending that Kazmier was
barred by the Eleventh Amendment from prosecuting her suit in federal
court. The United States intervened on Kazmier's side, arguing that the
FMLA validly abrogates the States' Eleventh Amendment immunity. The district
court denied LDSS's motion to dismiss, and this appeal followed.
|||The Eleventh Amendment is rooted in the principle, imprecisely stated
in its text but implicit in the federal structure of the Constitution,
that the federal courts do not have jurisdiction to hear suits brought
by private individuals against non-consenting States.*fn2
This jurisdictional bar is not, however, absolute: The States' sovereign
immunity can be abrogated by Congress pursuant to its enforcement power
under Section 5 of the Fourteenth Amendment.*fn3
The validity of a purported abrogation is assessed judicially by applying
a two-part test: First, "Congress must unequivocally express its
intent to abrogate the immunity";*fn4
and, second, Congress must act "pursuant to a valid exercise of power."*fn5
|||Kazmier contends that the FMLA validly abrogates the States' Eleventh
Amendment immunity, making LDSS amenable to suit in federal court. Conceding
arguendo that in enacting the FMLA Congress unequivocally expressed its
intent to abrogate such immunity, LDSS insists that Congress failed to
effect the intended abrogation pursuant to a valid exercise of power.
Thus, the only issue before us is whether Congress's intent to make the
pertinent provisions of the FMLA applicable to the States was validly
enacted into law pursuant to Congress's enforcement power under Section
5 of the Fourteenth Amendment.
|||Section 1 of the Fourteenth Amendment states that "[n]o 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."*fn6
Section 5 of the Fourteenth Amendment provides that "[t]he Congress
shall have power to enforce, by appropriate legislation, the provisions
of this article."*fn7 Kazmier and
the United States argue that the FMLA is a valid congressional enforcement
of the Fourteenth Amendment's guarantee that "[n]o State shall...
deny to any person within its jurisdiction the equal protection of the
|||"It is for Congress in the first instance to determine whether
and what legislation is needed to secure the guarantees of the Fourteenth
Amendment, and its conclusions are entitled to much deference."*fn8
The Supreme Court has noted, however, that "the same language that
serves as the basis for the affirmative grant of congressional power also
serves to limit that power."*fn9
"Congress cannot decree the substance of the Fourteenth Amendment's
restriction on the States.... It has been given the power 'to enforce,'
not the power to determine what constitutes a constitutional violation."*fn10
Thus, Congress's exercise of its Section 5 enforcement power is always
authorized when enacting strictly remedial legislation that narrowly targets
clearly unconstitutional State conduct.*fn11
In contrast, Congress can enact broad prophylactic legislation that prohibits
States from engaging in conduct that is constitutional only when there
is "a congruence and proportionality between the injury to be prevented
or remedied and the means adopted to that end."*fn12
|||The Supreme Court's recent decision in Kimel v. Florida Board of Regents*fn13
provides the clearest guidance for determining whether legislation that
purports to enforce the Fourteenth Amendment's Equal Protection Clause
against the States is "congruent and proportional." A two part
test emerges from Kimel. At the first step, we begin our analysis by determining
what type of constitutional violation the statute under review is designed
to prevent. The outermost limits of Congress's potential authority to
enact prophylactic legislation is directly linked to the level of scrutiny
that we apply in assessing the validity of discriminatory classifications
of the targeted type. If legislation "prohibits substantially more
state employment decisions and practices than would likely be held unconstitutional
under the applicable equal protection... standard,"*fn14
the legislation will not be considered congruent and proportional. Thus,
Congress's authority is most broad when "we require a tight fit
between [the discriminatory classifications in question] and the legitimate
ends they serve," as we do with classifications that are based on
race or sex.*fn15 Conversely, congressional
authority is most narrow when Congress tackles discrimination on the basis
of classifications that are not constitutionally suspect: "States
may discriminate on the basis of [such classifications] without offending
the Fourteenth Amendment if the... classification in question is rationally
related to a legitimate state interest."*fn16
|||Having established, at Kimel's first step, the limits of Congress's
potential authority under Section 5, we examine, at Kimel's second step,
the legislative record of the statute under review to see whether it contains
evidence of actual constitutional violations by the States sufficient
to justify the full scope of the statute's provisions.*fn17
The respect that must be accorded the States as independent sovereigns
within our federal system prevents Congress from restraining them from
engaging in constitutionally permissible conduct based on nothing more
than the mere invocation of perceived constitutional bogeymen: Legislation
that abrogates immunity must be proportional with and congruent to an
identified pattern of actual constitutional violations by the States.*fn18
If Congress "fail[s] to [include in the legislative record of a prophylactic
statute any evidence of a] significant pattern of unconstitutional discrimination"
by the States, then the statute will not be held to abrogate the States'
|||A. Scope of Review
|||Section 2612(a)(1) of the FMLA*fn20
entitles eligible employees to take leave totaling twelve weeks per calendar
|||(A) Because of the birth of a son or daughter and in order to care for
such son or daughter;
|||(B) Because of the placement of a son or daughter with the employee
for adoption or foster care;
|||(C) In order to care for the spouse, or a son, daughter, or parent,
of the employee, if such spouse, son, daughter, or parent has a serious
|||(D) Because of a serious health condition that makes the employee unable
to perform the functions of the position of such employee.
|||Kazmier has alleged that her employment with LDSS was terminated because
she took leave (1) to care for her terminally father and (2) to recuperate
from personal injuries. Consequently, of the section's four justifications
for leave under the FMLA, only subsections (C) and (D) are implicated
in the instant case.
|||As subsections (C) and (D) clearly authorize leave on different substantive
grounds, logic dictates that each must be subjected to an independent
"congruence and proportionality" analysis. Although we have
been unable to locate any case law expressly addressing the issue of severability
in the context of congruence and proportionality analysis,*fn21
we discern no reason why the provisions of one of the FMLA's subsections
could not validly abrogate the States' Eleventh Amendment immunity even
if the provisions of some or all of the remaining subsections fail to
do so. We shall therefore evaluate the congruence and proportionality
of subsections (C) and (D) separately.
|||B. Subsection (C)
|||This subsection requires employers to permit each eligible employee
to take some or all of his 12 weeks FMLA annual leave to provide care
for family members suffering from serious health conditions. Congress's
express intent in enacting this provision was to prevent employers from
granting such leave discriminatorily on the basis of sex.*fn22
Specifically, Congress was responding to findings that private sector
employers frequently discriminate against men in granting leave to provide
family care.*fn23 Testimony before
Congress indicated that the perverse effect of this reverse discrimination
has actually been to push women out of the work force, largely because
such discrimination is both rooted in and reinforces the stereotype that
women will assume the role of the primary family care-giver. According
to the testimony before Congress, such stereotypes make employers less
willing to hire women because of the expectation that women will take
significantly more leave time to care for members of their families than
|||Discrimination on the basis of sex is subject to "heightened"
constitutional scrutiny.*fn25 Sexual
classifications are constitutional only if they serve "important
governmental objectives and ... the discriminatory means employed are
substantially related to the achievement of those objectives."*fn26
Thus, Congress potentially has wide latitude under Section 5 to enact
broad prophylactic legislation designed to prevent the States from discriminating
on the basis of sex.
|||The mere invocation by Congress of the specter of sex discrimination,
however, is insufficient to support the validity of legislation under
Section 5, at least when the statute at issue prohibits the States from
engaging in a significant amount of conduct that is constitutional. Broad,
prophylactic legislation must be congruent with and proportional to actual,
identified constitutional violations by the States.*fn27
Yet in enacting the FMLA, Congress identified no pattern of discrimination
by the States with respect to the granting of employment leave for the
purpose of providing family care. Congress did make findings of such discrimination
in the private sector, but such evidence is not imputable to the public
sector to validate abrogation: The Supreme Court ruled in Kimel that findings
of private sector discrimination do not create an inference that similar
discrimination has occurred in the public sector.*fn28
Simply put, we will not infer from private sector conduct that the States
are wilfully violating their constitutional duty to refrain from engaging
in sex discrimination.
|||It is indisputable that Subsection (C) constitutes broad, prophylactic
legislation: There is nothing in the Constitution that even closely approximates
either a duty to give all employees up to twelve weeks of leave per year
to care for ailing family members or a right of an employee to take such
leave. In fact, as the legislative record for this provision is devoid
of evidence of public sector discrimination, there simply are no identified
constitutional violations to which the provision could possibly be "congruent
and proportional." If subsection (C) were solely remedial in nature,
the absence of evidence of constitutional violations might not present
a problem. But the provisions of this subsection are, instead, prophylactic
in nature, purporting to prohibit the States from engaging in a broad
swath of conduct that is not per se violative of the Equal Protection
Clause.*fn29 We conclude, therefore,
that Congress did not validly enact subsection (C) pursuant to its enforcement
power under Section 5; that subsection (C) does not effectively abrogate
the States' Eleventh Amendment immunity; and that Kazmier cannot enforce
that subsection against the State of Louisiana in federal court.*fn30
|||C. Subsection (D)
|||This subsection requires employers to permit each eligible employee
to take some or all of his 12 weeks FMLA annual leave to address the employee's
own "serious health conditions." Congress's express intent in
enacting this provision was to prevent employers from discriminating on
the basis of temporary disability.*fn31
The legislative record contains the additional suggestion that Congress
meant for this provision to prevent discrimination against women on the
basis of pregnancy-related disability as well.*fn32
Kazmier and the United States argue that this latter concern indicates
that, like subsection (C), subsection (D) is ultimately designed to prevent
discrimination on the basis of sex.
|||As an initial matter, we reject the notion that subsection (D) targets
sex discrimination. The legislative record demonstrates that Congress
was concerned with discrimination on the basis of pregnancy, which is
not the same thing as broad based discrimination on the basis of sex.
The Supreme Court has held that discrimination on the basis of pregnancy
does not violate the Equal Protection Clause.*fn33
To the extent that subsection (D) targets such discrimination, it does
not fall within Congress's enforcement powers under Section 5 of the Fourteenth
|||The United States asserts that even though subsection (D) expressly
targets only discrimination in the granting of employment leave, the provision
was nevertheless intended to have the secondary effect of preventing employers
from engaging in discriminatory hiring practices. Specifically, the United
States asserts that Congress enacted subsection (D) in response to evidence
indicating that employers often are reluctant to hire women because of
"the assumption that women will become pregnant and leave the labor
market."*fn34 The United States
asks us to infer from Congress's consideration of this evidence that even
if subsection (D) is not designed to prevent discrimination on the basis
of sex in the granting of leave, it is nevertheless designed to prevent
discrimination on the basis of sex in the making of hiring decisions.
|||This argument is flawed on a number of levels. First, we note that,
of Section 2612(a)(1)'s four justifications for leave, subsection (A)
is the one that most plausibly is designed to combat pregnancy-related
discrimination, as that subsection entitles employees to take leave "[b]ecause
of the birth of a son or daughter and in order to care for such son or
daughter." Second, to the extent that subsection (D) does target
discrimination related to pregnancy, the argument advanced by the United
States appears impermissibly to conflate discrimination on the basis of
pregnancy with discrimination on the basis of sex, an approach that, as
we already have noted, has been rejected by the Supreme Court.*fn35
|||Ultimately, however, we need not delve too deeply into the true nature
of the targeted discrimination, as we find it virtually impossible to
conceive how requiring employers to permit employees to take 12 weeks
of leave for serious health conditions could possibly have the effect
of preventing sex discrimination in hiring practices. If the United States
is correct in surmising that employers are reluctant to hire women for
fear that they will become pregnant and "leave the labor market,"
then the only possible effect on hiring practices of expressly mandating
leave for pregnancy (among other serious health conditions) would be to
reinforce such fears and make employers even more reluctant to hire women.
A provision mandating that employers grant leave for serious health conditions
cannot be viewed as reasonably calculated to achieve the objective of
making employers less disinclined to hire women. Again, therefore, we
reject the notion that subsection (D) is designed to combat sex discrimination.
|||What is patently clear, though, is that subsection (D) was designed
by Congress to prevent discrimination on the basis of temporary disability.*fn36
Unlike discrimination on the basis of sex, however, discrimination on
the basis of disability is subject only to the slightest of scrutiny under
the Equal Protection Clause.*fn37
States may discriminate on the basis of disability without offending the
Fourteenth Amendment as long as the classification in question is rationally
related to a legitimate state interest.*fn38
In this respect, disability discrimination is similar to age discrimination,
so subsection (D) is properly subject to the kind of analytical approach
employed by the Supreme Court in Kimel to determine whether the Age Discrimination
in Employment Act ("ADEA") validly abrogates State sovereign
|||Even a cursory look makes clear that, like the ADEA, the FMLA "prohibits
substantially more state employment decisions and practices than would
likely be held unconstitutional under the applicable equal protection,
rational basis standard."*fn40
It would not, for example, be unconstitutional for a State to permit its
employees to take only eight weeks leave per year because of serious health
conditions. For that matter, it would not be unconstitutional for a State
to allow its employees no health related leave time at all, as long as
in doing so the State applied the rule on a nondiscriminatory basis. In
sum, subsection (D) prohibits the States from engaging in such a wide
array of perfectly constitutional practices that we have difficulty conjuring
up any unconstitutional conduct by the States to which that subsection's
proscriptions might possibly be proportional and congruent.*fn41
|||We need not engage in such counterfactual speculation, however, to resolve
the instant case. The legislative record for the FMLA is devoid of any
evidence of a pattern of discrimination by the States against the temporarily
disabled; and the public sector cannot be tarred with the brush of private
sector discrimination to create an inference of unconstitutional discrimination
by the States.*fn42 "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."*fn43
Without direct evidence of substantial unconstitutional discrimination
by the States, there simply is no "Fourteenth Amendment evil"
to which subsection (D) could possibly be congruent and proportional.*fn44
We conclude, therefore, that Congress did not validly enact subsection
(D) pursuant to its enforcement power under Section 5; that subsection
(D) does not effectively abrogate the States' Eleventh Amendment immunity;
and that Kazmier cannot enforce that subsection against the State of Louisiana
in federal court.
|||As a final point, we reject the argument advanced by Kazmier and the
United States that, by stare decisis, our holding in Coolbaugh v. State
of Louisiana,*fn45 to the effect that
Title II of the Americans with Disabilities Act of 1990 ("ADA")*fn46
does validly abrogate the States' Eleventh Amendment immunity, controls
our decision today with respect to the validity of Congress's abrogation
of State sovereign immunity by enacting subsection (D). As an initial
matter, we note that the continuing validity of Coolbaugh has been called
seriously into question by the Supreme Court's subsequent decision in
Kimel which, in holding that Congress did not validly abrogate State sovereign
immunity in enacting the ADEA, reversed another panel decision from this
Circuit.*fn47 The Coolbaugh panel
appears to have inferred a pattern of unconstitutional discrimination
by the States from evidence in the ADA's legislative record pertaining
solely to discrimination in the private sector, an inference that the
Court in Kimel made clear is impermissible. We need not re-examine the
holding of Coolbaugh in detail, however, because the ADA is an entirely
different statute than the FMLA, with its own distinguishable substance
and its own distinguishable legislative record. For present purposes we
need observe only that the legislative record of the FMLA, lacking any
evidence whatsoever of unconstitutional discrimination by the States,
will not support abrogation of State sovereign immunity, at least not
with respect to those of the FMLA's prophylactic provisions that are at
issue in this case. Coolbaugh therefore does not proscribe our concluding
that, like subsection (C), subsection (D) was not validly enacted pursuant
to Congress's enforcement power under Section 5 of the Fourteenth Amendment
and therefore does not abrogate the States' Eleventh Amendment immunity.*fn48
|||III. A Response to the Dissent
|||The extensive research that has obviously gone into the dissent, and
the scholarly work that it has produced, merit a brief response. The dissent
chides us for "look[ing] at Boerne and all of the prior [Eleventh
Amendment] jurisprudence through the wrong end of Kimel's perspective
glass."*fn49 It then attempts
to reinterpret the Supreme Court's recent Eleventh Amendment jurisprudence
through the antient lens of Chief Justice Marshall's 1819 opinion in McCulloch
v. Maryland.*fn50 The thrust of the
dissent's argument is that the "congruence and proportionality"
test employed by the Supreme Court in Kimel, City of Boerne, and Florida
Prepaid is in actuality nothing more than a "rational basis"
standard of review.*fn51 The dissent
contends that if we conclude that the FMLA is rationally related to deterring
sex discrimination (which the dissent apparently concludes it to be),*fn52
we are obligated to uphold the validity of its purported abrogation of
State sovereign immunity.
|||The dissent's approach to Eleventh Amendment jurisprudence is not supported
by the law, and even as a matter of legal theory it is riddled with problems.
The dissent contends that "Kimel and [City of] Boerne reaffirmed
and did not limit or replace the McCulloch 'rational means' standard."
In reality, however, McCulloch is nowhere mentioned in Kimel, and City
of Boerne merely cites McCulloch for the well-established and universally
accepted truism that "[u]nder our Constitution, the Federal government
is one of enumerated powers."*fn53
Indeed, the Court did not use the phrases 'rational means' or 'necessary
and proper' even once in either of those two opinions. Simply put, McCulloch
has absolutely nothing to do with the Supreme Court's recent Eleventh
Amendment jurisprudence: Chief Justice Marshall's interpretation of the
Necessary and Proper Clause was certainly a landmark decision with far-reaching
implications, but it sheds no useful light on the difficult and intractable
problems entailed in reconciling Congress's enforcement powers under Section
5 of the Fourteenth Amendment with the bedrock principles of State sovereign
immunity embodied in the Eleventh Amendment.
|||Moreover, the dissent's contention that the Supreme Court's congruence
and proportionality test amounts to nothing more than a rational basis
standard of review just cannot be right. First, the Supreme Court is well
accustomed to using a rational basis standard of review in testing the
validity of legislation;*fn54 if that
is the only yardstick that the Court meant to apply in the context of
the Eleventh Amendment, it would not have gone to the trouble of articulating
a separate congruence and proportionality test. Second, neither the ADEA
(the statute at issue in Kimel) nor RFRA (the statute at issue in City
of Boerne) can be fairly characterized as irrational, yet the Court struck
down both of those statutes after applying its congruence and proportionality
test. It could not be clearer that congruence and proportionality is a
considerably more stringent standard of review than is rational basis.
Indeed, these two tests bear little resemblance to one another, as they
are rooted in entirely separate clauses of the Constitution.*fn55
Professor Laurence Tribe might agree with the dissent, which cites several
of his pre-Kimel articles, but the support of even so prominent an academician
is an inadequate substitute for rigorous adherence to recent Supreme Court
|||At its close, the dissent argues that the legislative record compiled
by Congress in enacting the FMLA contains sufficient evidence of unconstitutional
discrimination by the States to support abrogation of State sovereign
immunity with respect to 29 U.S.C. § 2612(a)(1)(C) and (D). Despite scouring
what it admits to be nine years of legislative history, the dissent is
able to point to only six statements made during congressional hearings,
which, it contends, demonstrate that in enacting Subsections (C) and (D)
Congress was attempting to redress a pervasive pattern of sex-based discrimination
that existed in the public sector at the time that the FMLA was enacted.
Even a cursory review of those six statements, however, reveals that they
are not in the least probative of the question before us. Every single
one of the six quotations relates solely to the issue of parental leave,
an issue that is not addressed by Subsections (C) and (D) of the FMLA
and that we have expressly declined to address and rule on in deciding
the case before us. Further evidence of the unpersuasiveness of the six
statements is the fact that one of them deals solely with discrimination
in the private sector;*fn56 one of
them deplores the absence of robust parental leave policies in the public
and private sectors, but without making any mention whatsoever of sex-based
discrimination in the granting of such leave;*fn57
a third actually lauds the public sector for making parental leave readily
available to employees, contending that the public sector has set an example
that the private sector should emulate;*fn58
and a fourth, which was made during a hearing held in 1987 and which asserted
that at that time ---- 13 years ago ---- the State of Florida granted
its employees maternity leave but not paternity leave, was no longer true
when the FMLA was enacted in 1993, by which time Florida had already enacted
a general parental leave policy available to both sexes on a neutral basis.*fn59
Whether the two or three remaining anecdotal and outdated statements on
which the dissent is left to rely would be sufficient to support abrogation
of State sovereign immunity with respect even to legislation pertaining
to parental leave is thus subject to considerable doubt: In Kimel, the
Supreme Court explained that its ruling in City of Boerne was rooted in
its conclusion that "Congress had uncovered only 'anecdotal evidence'
[of discrimination by the State] that, standing alone, did not reveal
a 'widespread pattern of religious discrimination in this country.'"*fn60
We note again, however, that the validity of the FMLA's parental leave
provisions is not at issue in this case. Today we hold only that Congress
failed to present sufficient evidence of unconstitutional discrimination
by the States to support abrogation of State sovereign immunity with respect
to Subsections (C) and (D), both of which the dissent fails to address
|||In fact, the dissent devotes no analysis at all to Subsection (D): Although
it baldly declares that it cannot agree "that the legislative record
for this provision is devoid of evidence of public sector discrimination
against the temporarily disabled as this was precisely what the PDA and
then the FMLA were enacted in response to,"*fn61
the dissent does not support its disagreement by pointing to any evidence
pertaining to such discrimination by the States. Indeed, as the temporarily
disabled are not a constitutionally suspect class, the dissent's own analysis
would seem to indicate that Subsection (D) is entitled to substantially
less deference than are the other sections of the FMLA.*fn62
Unfortunately, the dissent's total failure to analyze Subsections (C)
and (D) individually precludes a more detailed response to the positions
that it takes.*fn63
|||In the end, the dissent's citations to the legislative record only serve
to reinforce our conclusion that the FMLA is not designed to prevent discrimination
at all, but rather is crafted to provide employees throughout the nation
with a substantive statutory right to take leave from work for family
and medical reasons. The dissent has managed to find but two potentially
relevant remarks ---- stray ones at that ---- pertaining to discrimination
in the public sector, each of which was made offhand, does not appear
to have been solicited by Congress, and is greatly overshadowed by the
speaker's plea that Congress enact a statutory right to parental leave.
In fact, in several instances the congressional testimony cited by the
dissent emphasizes the paramount importance of maternity leave as distinguished
from paternity leave, ironic indeed considering the dissent's attempt
to use this testimony to demonstrate that Congress's primary concern was
that family and medical leave be dispensed on a non-discriminatory basis.*fn64
|||Although the dissent clearly agrees with the substantive goals that
Congress was trying to achieve in enacting Subsections (C) and (D), the
wisdom of individual policy decisions is irrelevant to determining the
validity of congressional abrogation of State sovereign immunity. Because
of the dissent's failure to acknowledge this basic legal principle, as
well as the reasons discussed above, we find the dissent unconvincing.
|||In light of the foregoing analysis, the district court's denial of LDSS's
motion to dismiss must be reversed and the case remanded with instructions
that both the official and the individual capacity claims against the
named defendants be dismissed for lack of jurisdiction.*fn65
|||REVERSED AND REMANDED, with instructions.
|||DENNIS, Circuit Judge, dissenting.
|||The majority holds, incorrectly in my opinion, that the Family and Medical
Leave Act of 1993, 29 U.S.C. § 2601, et seq., ("FMLA") is not
"appropriate legislation" by which Congress has power to enforce
the equal protection of the laws provision of the Fourteenth Amendment
and that, therefore, the FMLA does not validly abrogate the Eleventh Amendment
immunity barring suits by private citizens against the states in federal
courts. My colleagues have been led into error by what I believe to be
their misunderstanding of Kimel v. Florida Board of Regents, 120 S.Ct.
631 (2000), City of Boerne v. Flores, 521 U.S. 507 (1997), the prior Fourteenth
Amendment jurisprudence, and the legislative record of the FMLA. For these
reasons, I respectfully dissent.
|||It is common ground in this litigation that Congress in the FMLA unequivocally
expressed its intent to abrogate state immunities. See 29 U.S.C. §§ 2611(4)(a)(iii);
2617(a). However, the majority holds that Congress did not enact the FMLA
pursuant to a valid exercise of power under the Fourteenth Amendment.
The majority bases its decision primarily on the Supreme Court's recent
holding in Kimel. Kimel was decided subsequently to oral argument in the
present case, and the parties have not been afforded an opportunity to
brief us on Kimel's meaning or effect. In the absence of adversarial input,
the majority looks at Boerne and all of the prior jurisprudence through
the wrong end of Kimel's perspective glass.
|||The majority reads Kimel as standing for two propositions that would
drastically reduce Congress' enforcement power under section 5 of the
Fourteenth Amendment.*fn66 First,
the majority views the phrase "congruence and proportionality,"
used in Kimel and Boerne to describe appropriate § 5 legislation, as placing
new, stricter limits on Congress' exercise of its Fourteenth Amendment
enforcement power. Second, the majority reads the "congruent and
proportional" phrase as supplanting the "rational means"
standard for measuring Congressional power announced by Chief Justice
Marshall in McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 421 (1819),
and applied to legislation enacted under section 5 of the Fourteenth Amendment
by the Supreme Court in Ex Parte Virginia, 100 U.S. (10 Otto) 339 (1879)
and Katzenbach v. Morgan, 384 U.S. 641 (1966). Accordingly, the majority
would apply its version of the "congruent and proportional"
requirement exclusively and across the board, even to § 5 legislation
designed to remedy or deter governmental discrimination based on race,
gender, or other suspect or quasi-suspect classification.
|||The majority, in my opinion, is mistaken on both points. First, neither
Kimel nor Boerne held that Congress must establish an evidentiary predicate
for legislation that constitutes a rational means of deterring and preventing
governmental discrimination against persons on the bases of race or gender.
The Supreme Court has never suggested that Congress cannot rely on the
Supreme Court's recognition of such suspect or quasi-suspect classes in
enacting legislation to deter violations of their constitutional rights.
Because Congress' express power to legislatively enforce the Equal Protection
Clause of the Fourteenth Amendment is concurrent with the Court's judicial
power to enforce the Amendment, Congress is not required to establish
an evidentiary predicate independent of the Court's decisions identifying
suspect classes in order to enact legislation pursuant to § 5 to protect
individuals from the denial of the equal protection of the laws based
on race, gender or other suspect classifications.
|||Second, the Supreme Court in Kimel and Boerne reaffirmed and did not
limit or replace the McCulloch "rational means" standard as
adopted by Ex Parte Virginia, Katzenbach v. Morgan, and their progeny.*fn67
Thus, "congruence and proportionality" includes or is consistent
with the meaning of "rational means" or "necessary and
proper" as defined by McCulloch, Ex Parte Virginia, Morgan, and their
progeny; or signifies the difference between legislation and constitutional
interpretation, as suggested by Boerne; or recognizes the correlation
between the ranges of judicial and legislative powers to enforce the Equal
Protection Clause on behalf of suspect, quasi-suspect and non-suspect
classes, as suggested by Kimel; or all of the above. Assuming arguendo,
however, that Kimel or Boerne purports to place any new limits on Congress'
legislative power, the majority errs in applying those limits to the present
case because the Court in Kimel made it very clear that its holding does
not apply to § 5 legislation designed to remedy or deter governmental
discrimination based on race or gender.
|||Undoubtedly, Congress is empowered by section 5 of the Fourteenth Amendment
to enact legislation prohibiting constitutional state action if such a
law is a rational means of preventing or deterring unconstitutional governmental
gender discrimination. In the present case, the State has not attempted
to show that any particular governmental gender classification is constitutional
because it serves an important government objective. Consequently, the
only question in the present case is whether the FMLA, by prohibiting
and requiring certain constitutional state employment practices, is a
rational means of preventing and deterring unconstitutional governmental
gender discrimination and is therefore appropriate section 5 legislation.
I believe that it is self-evident that the FMLA is a rational means of
deterring gender-based discrimination and that the Constitution does not
require that Congress buttress its enactment with any particular kind
of legislative record. In the alternative, however, if common knowledge
and the statute itself are deemed to provide insufficient illumination,
the legislative history and legislative records of the FMLA and other
legislative activity from which it stems abundantly demonstrate that it
is a rational means to an appropriate Congressional end.
|||As I read the Supreme Court's opinions in Kimel and Boerne, they do
not drastically alter or restrict Congress's authority under section 5
of the Fourteenth Amendment to enforce the equal protection of the laws
provision of section 1 of the amendment as the majority contends. The
majority, in effect, concludes that Kimel imposes a kind of dual probability-of-success
and substantial-evidence test for determining whether an act of Congress
passes muster as appropriate § 5 legislation. The majority states that:
"A two part test [for determining whether legislation is 'congruent
and proportional'] emerges from Kimel[:]" " At the first
step, we...determin[e] what type of constitutional violation the statute
under review is designed to prevent."  "[T]he legislation
will not be considered congruent and proportional[,]" and therefore,
not appropriate, if: [a] "[the] legislation prohibits substantially
more state employment decisions and practices than would likely be held
unconstitutional under the applicable equal protection standard,"
or [b] "Congress fails to include in the legislative record of a
prophylactic statute any evidence of a significant pattern of unconstitutional
discrimination by the States[.]" Maj.Op., at 5-7 (internal quotation
marks, brackets and footnotes omitted). I do not believe that the majority's
two part probability-of-success and substantial-evidence test "emerges
from" or reasonably can be drawn from Kimel.
|||Kimel affirms that "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."
Kimel, 120 S.Ct. at 644 (citing Boerne, 521 U.S. at 518) (quoting Fitzpatrick
v. Bitzer 427 U.S. 455 (1976)); see also Laurence H. Tribe, American Constitutional
Law § 5-16, at 949 (3d. Ed. 1999). It is true that the Boerne Court stated
that Congress does not have "the power to decree the substance of
the Fourteenth Amendment's restrictions on the States" and that"[t]he
power to interpret the Constitution in a case or controversy remains in
the Judiciary." Boerne 521 U.S. at 519, 524. Nevertheless, the Court
also made clear that under section 5 Congress has broad freedom of choice
or action in determining the boundary between making a substantive change
in the constitution and an act of enforcement legislation, whether remedial
or deterrent. Id. at 518-19 (citing South Carolina v. Katzenbach, 383
U.S. 301, 326 (1966)).
|||Militating against the majority's notion of imposing a kind of probability-of-success/substantial-evidence
test upon Congress, Kimel endorses Boerne's reaffirmation of Congressional
autonomy: "As a general matter, it is for Congress to determine the
method by which it will reach a decision" as to the risk of Fourteenth
Amendment violations and the means by which particular evils should be
prevented or remedied. Boerne, 521 U.S. at 531-32; see also Kimel, 120
S.Ct. at 644. The Court did not in either case lay down any probability
of success ratio, procedural method, evidentiary rule or burden of proof
standard for Congress to follow in performing its separate and independent
legislative function. The Court did not presume to treat Congress as an
inferior court or administrative tribunal; to the contrary, Boerne and
Kimel merely illustrate that when Congress' purpose is ambiguous, as it
is apt to be in section 5 legislation concerned with governmental discrimination
against non-suspect classes or with generally applicable state laws imposing
merely incidental burdens on religion, the Court will examine the legislative
history and record to determine Congress' objective, just as it does when
the meaning of any Congressional act is vague or ambiguous. Thus, Kimel's
commentary on the ADEA legislative record and history is directed toward
judicial review of section 5 legislation aimed at non-suspect class discrimination,
and is not intended as an improper judicially imposed blanket stricture
upon Congress' legislative process itself:
|||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 [to a state act of non-suspect
discrimination so irrational as to be unconstitutional even under a rational
basis review] 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 is by examining the legislative
record containing the reasons for Congress' action. 120 S.Ct. at 648.
|||Indeed, Kimel reiterates "that lack of support is not determinative
of the § 5 inquiry." Id. (citing Florida Prepaid Post-secondary Ed.
Expense Bd. v. College Savings Bank, 119 S.Ct. 2199, 2209-2210 (1999)
("lack of support in the legislative record is not determinative.");
Boerne, 521 U.S. at 531-532 ("lack of support in the legislative
record...is not RFRA's most serious shortcoming. Judicial deference, in
most cases, is based not on the state of the legislative record Congress
compiles but 'on due regard for the decision of the body constitutionally
appointed to decide.'") (quoting Oregon v. Mitchell, 400 U.S. 112,
207 (1970) (Harlan, J.)); Boerne also reiterates that it did not intend
"to say, of course, that § 5 legislation requires...egregious predicates."
Id. at 533; see also Lopez v. Monterey County, 525 U.S. 266 (1999)(no
examination of legislative record by 8-1 majority upholding a deterrent
provision of the Voting Rights Act as appropriate legislation under §
2 of the Fifteenth Amendment); id. at 295 (Thomas, J. dissenting).
|||The majority clearly misreads Kimel as mandating that Congress use a
judicially prescribed evidence and fact gathering methodology or compile
a judicially prescribed evidentiary predicate in enacting any and every
measure of section 5 legislation. Rather than limit Congress' discretion,
however, Kimel reaffirms that "§ 5 is an affirmative grant of power
to Congress" and that "'[i]t 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.'" Kimel, 120 S.Ct. 644. Thus, nothing in Kimel restricts
Congress' freedom to choose whether to take evidence, conduct hearings,
seek experts' opinions, or to rely on history, experience with previous
legislation, notice of legislative facts, common knowledge, common sense,
or a combination of such factors. The Court has not and cannot legitimately
impose any set form of judicially made procedures, standards, or quantum
of evidence requirements upon Congress. Congress is a unique institution,
separate and independent from the judicial branch and is not required
by the constitution to operate like courts or follow the rules governing
|||From the text of Kimel itself and from the context and underpinnings
of its analysis, it is evident that the majority is mistaken in concluding
that Kimel narrowed the scope of Congress' section 5 legislative enforcement
powers or established a new blanket requirement of adequate legislative
records for all section 5 enforcement legislation. Rather, in my opinion,
Kimel does not attempt to make any new law but instead represents a straightforward
application of the well-settled principles established by the Court's
|||Besides misconstruing Kimel and Boerne as placing new limits, stricter
than the "rational means" standard, on Congress' Fourteenth
Amendment enforcement powers, the majority overlooks the significant difference
noted by these cases between a Congressional act designed to deter governmental
equal protection violations against suspect or quasi-suspect classes and
other types of preventive legislation purportedly enacted pursuant to
the enforcement sections of the Reconstruction Amendments. Kimel explicitly
distinguished governmental discrimination on the basis of age from state
action based on race, gender, or other suspect classifications:
|||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. Accordingly, as we recognized in Murgia, Bradley,
and Gregory, age is not a suspect classification under the Equal Protection
Clause. See, e.g., Gregory, supra, at 470; Bradley, supra, at 97; Murgia,
supra, at 313-314.
|||States may discriminate on the basis of age without offending the Fourteenth
Amendment if the age classification in question is rationally related
to a legitimate state interest. The rationality commanded by the Equal
Protection Clause does not require States to match age distinctions and
the legitimate interests they serve with razorlike precision. As we have
explained, when conducting rational basis review 'we will not overturn
such [government action] unless the varying treatment of different groups
or persons is so unrelated to the achievement of any combination of legitimate
purposes that we can only conclude that the [government's] actions were
irrational.' Bradley, supra, at 97. In contrast, when a State discriminates
on the basis of race or gender, we require a tighter fit between the discriminatory
means and the legitimate ends they serve. See, e.g., Adarand Constructors,
Inc. v. Pena, 515 U.S. 200, 227 (1995) ('[Racial] classifications are
constitutional only if they are narrowly tailored measures that further
compelling governmental interests'); Mississippi Univ. for Women v. Hogan,
458 U.S. 718, 724 (1982) (holding that gender classifications are constitutional
only if they serve 'important governmental objectives and ... the discriminatory
means employed' are 'substantially related to the achievement of those
objectives' (citation omitted)). 120 S.Ct. at 645-646 (citations partially
|||In other words, Kimel can be read to admonish that: Unlike age or other
classifications subject to rational basis review, governmental conduct
based on race or gender is deemed to reflect prejudice and antipathy because
it is so seldom relevant to the achievement of any legitimate state interest.
Persons who suffer discrimination on the basis of race or gender have
been subjected to a history of purposeful unequal treatment. A suspect
class defines a discrete and insular minority. Race and gender are suspect
classes under the Equal Protection Clause. See id. Racial classifications
are constitutional only if they are narrowly tailored measures that further
compelling governmental interests. Gender classifications are constitutional
only if they serve important governmental objectives and the discriminatory
means are substantially related to the achievement of those objectives.
See id. at 646.
|||Moreover, Kimel demonstrates that the history of States' unequal treatment
of persons based on race or gender clearly justifies the strongest exercise
of powers by the Court and the Congress to enforce the Fourteenth Amendment
equal protection guarantee. Accordingly, there is an important corollary
between the Court's strict scrutiny of state action based on suspect classifications
and Congress' vast power to adopt strong measures to remedy and deter
governmental discrimination against persons based on race or gender.
|||In San Antonio Independent School Dist.v. Rodriquez, 411 U.S. 1, 28
(1973), a case cited as instructive by Kimel, the Court identified a suspect
class as one "saddled with such disabilities, or subjected to such
a history of purposeful unequal treatment, or relegated to such a position
of political powerlessness as to command extraordinary protection from
the majoritarian political process." The Court in Kimel indicated
that age, unlike race or gender, is not a suspect classification warranting
either judicial strict scrutiny or section 5 legislation that presumes
governmental action based on every age classification to be unconstitutional.
For example, the Court in Kimel stated: "Older persons...unlike those
who suffer discrimination on the basis of race or gender, have not been
subjected to a "history of purposeful unequal treatment." 120
S.Ct., at 645. "The [ADEA], through its broad restriction on the
use of age as a discriminating factor, prohibits substantially more state
employment decisions than would likely be held unconstitutional under
the applicable equal protection, rational basis standard." Id. at
647. "Measured against the rational basis standard of our equal protection
jurisprudence, the ADEA plainly imposes substantially higher burdens on
state employers[, imposing] substantive requirements...at a level akin
to our heightened scrutiny cases under the Equal Protection Clause."
Id. at 648. "[Thus,] the ADEA's protection extends beyond the requirements
of the Equal Protection Clause." Id. "Congress, through the
ADEA, has effectively elevated the standard for analyzing age discrimination
to heightened scrutiny." Id.
|||In contrast, governmental action based on race or gender classifications
is presumed to be unconstitutional, warrants heightened or strict judicial
scrutiny, and places the burden of justification entirely on the state.
With respect to sex discrimination, the Supreme Court in United States
v. Virginia, 518 U.S. 515, 531 (1996)(VMI Case) held: "Parties who
seek to defend gender-based government action must demonstrate an 'exceedingly
persuasive justification' for that action." (citing J.E.B. v. Alabama
ex rel. T.B., 511 U.S. 127, 136-137, n. 6 (1994); Mississippi Univ. for
Women, 458 U.S. at 724). Furthermore, the Court in the VMI case noted
that: "Without equating gender classifications, for all purposes,
to classifications based on race or national origin, the Court, in post-Reed
decisions, has carefully inspected official action that closes a door
or denies opportunity to women (or to men)." Id. at 532 (citing J.E.B.,
511 U.S. at 152 (Kennedy, J., concurring) (case law evolving since 1971
"reveal[s] a strong presumption that gender classifications are invalid")).
"To summarize the Court's current directions for cases of official
classification based on gender[,]" the Court in the VMI case stated:
"Focusing on the differential treatment or denial of opportunity
for which relief is sought, the reviewing court must determine whether
the proffered justification is exceedingly persuasive. The burden of justification
is demanding and it rests entirely on the State. The State must show at
least that the challenged classification serves important governmental
objectives." Id. at 532-533 (internal quotations, citations and brackets
|||As Kimel suggests, when the Supreme Court identifies a government classification
of persons as suspect or quasi-suspect, it effectively broadens the scope
of Congressional power to remedy or deter governmental discrimination
based on that classification. See Kimel, 120 S.Ct. at 646. Congress may
rely on the presumption that state action based on the suspect classification
is unconstitutional in enacting legislation that outlaws constitutional
conduct as a rational means of deterring such presumptively unconstitutional
governmental conduct.*fn69 Thus, Congress
is not required to compile an evidentiary legislative record to prove
that a suspect class previously identified by the Supreme Court is still
"saddled with such disabilities, or subjected to such a history of
purposeful unequal treatment, or relegated to such a position of political
powerlessness as to command extraordinary protection from the majoritarian
political process." Rodriguez 411 U.S. at 28. That the class in question
is marked sufficiently by the traditional indicia that identify a suspect
class has already been established by the Supreme Court's decision.
|||In fact, Kimel's recognition of the parallel or kinship between the
powers and duties of the Court and those of the Congress to enforce the
equal protection clause against governmental discrimination on the basis
of race or gender with heightened stringency was anticipated by at least
three Circuit Courts of Appeals in interpreting Boerne. See Mills v. Maine,
118 F.3d 37 (1st Cir. 1997); Abril v. Commonwealth of Virginia, 145 F.3d
182 (4th Cir. 1998); Velasquez v. Frapwell, 160 F.3d 389, 391 (7th Cir.
1998) vacated in part 165 F.3d 593 (7th Cir. 1999).
|||The Kimel Court recognized that even governmental discrimination based
on classifications subject only to rational basis judicial review can
present "[d]ifficult and intractable problems ...requir[ing] powerful
remedies" that allow Congress under § 5 to enact "reasonably
prophylactic legislation." Kimel, 120 S.Ct. at 648. Further, such
legislation will upheld when the Court can determine that the act "is
in fact just such an appropriate remedy" by, for example, "examining
the legislative record containing the reasons for Congress' action."
Id. Thus, the Court in Kimel did not impose a blanket evidentiary or proof
requirement upon Congress' section 5 powers; instead, the Court examined
the ADEA's legislative record in Kimel only to determine whether that
act, which did not address state discrimination on the basis of a suspect
classification, was in fact an appropriate remedy for a state act of discrimination
against a non-suspect class that was so irrational as to be a denial of
equal protection under the rational basis standard of review.
|||Accordingly, I believe that the majority misreads Kimel as defining
a blanket test for all section 5 legislation. The holding in Kimel clearly
was not intended to apply to statutes which prohibit constitutional behavior
as a rational means to deter unconstitutional discrimination against a
suspect or quasi-suspect class.
|||To determine whether the FMLA is appropriate section 5 legislation,
the majority errs by relying upon a superficial reading of the latest
several cases, which as discussed supra did not alter the section 5 analysis
in the present case, rather than properly examining the statute within
the larger framework of the entire body of jurisprudence regarding constitutional
grants of both legislative and judicial powers to enforce the equal protection
of laws provisions of the Fourteenth and Fifteenth Amendments against
governmental action based on suspect classifications.
|||Section 5 of the Fourteenth Amendment is a congressional enforcement
clause virtually identical to those found in the Thirteenth, Fifteenth,
Eighteenth, Nineteenth, Twenty-third, Twenty-fourth, and Twenty-sixth
Amendments. To determine if Congress is acting pursuant to its enforcement
clause powers, we look to whether the act is a rational means to an end
that is comprehended by the underlying constitutional amendment. See,
e.g., South Carolina v. Katzenbach, 383 U.S. at 324, 326 (upholding Voting
Rights Act of 1965 under the Fifteenth Amendment's enforcement clause);
James Everard's Breweries v. Day, 265 U.S. 545, 558-59, 563 (1924) (upholding
Supplemental Prohibition Act of 1921 under the Eighteenth Amendment's
enforcement clause); Mills, 118 F.3d at 44; Velasquez, 160 F.3d at 391.*fn70
|||In Ex Parte Virginia, 100 U.S.(10 Otto) 339(1879), the Supreme Court
interpreted Congress' power to enact "appropriate legislation"
under the Civil War Amendments broadly, in line with McCulloch v. Maryland,
17 U.S. (4 Wheat.) 316, 421 (1819), concluding that "[w]hatever legislation
is...adapted to carry out the objects the amendments have in view, whatever
tends to enforce submission to the prohibitions they contain, and to secure
to all persons the enjoyment of perfect equality of civil rights and the
equal protection of the laws against state denial or invasion, if not
prohibited, is brought within the domain of congressional power."
Id. at 345-346.
|||In Katzenbach v. Morgan, 384 U.S. 641 (1966), the Supreme Court held
that § 5 of the Fourteenth Amendment "is a positive grant of legislative
power authorizing Congress to exercise its discretion in determining whether
and what legislation is needed to secure the guarantees of the Fourteenth
Amendment." Id. at 651. In particular, the Court determined that
a Congressional enactment is "appropriate legislation" under
section 5 for Equal Protection purposes if:  "under the McCulloch
v. Maryland standard, [it] may be regarded as an enactment to enforce
the Equal Protection Clause,  it is plainly adapted to that end and
 it is not prohibited by but is consistent with the letter and spirit
of the constitution." Id. at 651 (footnote and internal quotations
|||Consequently, under McCulloch, Ex parte Virginia, Katzenbach v. Morgan
and their progeny Congress may, when acting pursuant to §5 to enforce
§1 of the Fourteenth Amendment, "outlaw practices that are not themselves
violations of § 1 in any sense--provided one can show that outlawing those
practices is a rational way to deter or to remedy actions that would violate
§ 1." See Tribe, supra n.3. As noted above, rather than being limited,
the well settled principle that Congress has the power to prohibit conduct
which is not itself unconstitutional as a rational means of preventing
or deterring violations of the Fourteenth Amendment was recognized and
reaffirmed by both Kimel and Boerne. See also Lopez, 525 U.S. at 282 (post-Boerne
case reaffirming the well established principles that (1) "the Reconstruction
Amendments by their nature contemplate some intrusion into areas traditionally
reserved to the States" and that (2) "legislation which deters
or remedies constitutional violations can fall within the sweep of Congress'
enforcement power even if in the process it prohibits conduct which is
not itself unconstitutional and intrudes into legislative spheres of autonomy
previously reserved to the states").
|||A number of distinguished jurists applying the Katzenbach v. Morgan
test, as interpreted by Fitzpatrick, have expressly or implicitly adopted
the view that section 5 legislation designed to remedy, deter or prevent
denial of equal protection of the laws to a suspect or quasi-suspect class
will be deemed appropriate if the Court can see that it is a rational
means of furthering that purpose, as the risk that any differentiation
on such basis would be unconstitutional is significant. See, e.g., Mills,
118 F.3d at 44; Abril, 145 F.3d at 187, n.11; Velasquez, 160 F.3d at 391;
Corpus v. Estelle, 605 F.2d 175, 180 (Wisdom, J.). This idea is clearly
implied by, or reasonably inferred from, the Court's opinion in Kimel.
|||The theory is bolstered by the Court's approval of several important
civil rights measures designed to prevent or deter unconstitutional government
discrimination based on race or sex by outlawing constitutional government
actions. See,e.g., Fitzpatrick, 427 U.S. at 456 (affirming that Title
VII abrogated the States' Eleventh Amendment immunity with regards to
sex discrimination including disparate effects inequality in employment);
South Carolina v. Katzenbach, 383 U.S. at 324 (upholding under the Fifteenth
Amendment, certain enforcement provisions of the Voting Rights Act of
1965 designed to both remedy and deter governmental race discrimination
in voting); Katzenbach v. Morgan, 384 U.S. at 652(upholding the Voting
Rights Act provision that banned otherwise valid English language requirement
for voting as appropriate legislation enforcing the Equal Protection Clause
of the Fourteenth Amendment); Lopez, 525 U.S. at 282 (upholding the Voting
Rights Act's application of pre-clearance requirements against partially
covered state governments as appropriate legislation deterring violations
of the Fifteenth Amendment by county governments at the direction of the
|||Accordingly, unlike the majority, I do not believe that the Constitution
or the Supreme Court's decisions require Congress to cite specific evidence
of actual constitutional violations when the evil it seeks to remedy,
deter or prevent is governmental discrimination against persons based
on race, gender or other characteristics that the Supreme Court has recognized
as marking a group as a suspect class. In the judicial enforcement of
the Equal Protection Clause, a valid claim of governmental discrimination
against a suspect class calls for a shifting of the burden of production
and persuasion to the State to prove that the legislation "must serve
a compelling government interest, and must be narrowly tailored to further
that interest." See Adarand Constructors, Inc. v. Pena, 515 U.S.
200, 235 (1995). If the quasi-suspect classification of gender is involved,
the "burden of justification is demanding and it rests entirely on
the state . . . [to] show at least that the challenged classification
serves important governmental objectives." VMI Case, supra, at 532-533.
|||Consequently, when Congress is exercising its concurrent power and duty
to enforce the Equal Protection Clause of the Fourteenth Amendment on
behalf of a group which has been identified as a suspect or quasi-suspect
class by the Supreme Court, Congress is not required to prove past or
potential governmental discrimination against that class before proceeding
to enact rational means of remedying, preventing or deterring the risk
of future violations of the constitutional rights of members of that suspect
class. As discussed supra, by definition, a suspect class is one which
the Supreme Court has determined to have been subjected to both current
and historical discriminatory treatment. See, e.g., Plyler v. Doe, 457
U.S. 202, 216 n.14 (1982); Rodriguez, 411 U.S. at 28; see also Mark Strasser,
Suspect Classes and Suspect Classifications: On Discriminating, Unwittingly
or Otherwise, 64 Temp.L.Rev. 937 (1991).
|||Thus, it is possible for a court to determine that Congress was acting
pursuant to section 5 of the Fourteenth Amendment to prevent or deter
violations of §1 of the Amendment without Congress having identified any
specific evidence of race or gender discrimination by the States, if a
court can ascertain that the measure is a rational means adopted to deter
or prevent discrimination against suspect classes. While evidence of specific
past constitutional violations against members of a suspect class may
well help a court to see that deterrent legislative means are rational,
it is not always necessary that Congress have developed such evidence.
See, e.g., Lopez, 525 U.S. at 282; Kilcullen v. New York State Dept. of
Labor, 205 F.3d 77, 80 n.6 (2nd Cir. 2000) (post-Kimel case holding "that
courts may look beyond the information in the legislative record in assessing
whether a statute is a valid exercise of Congress's § 5 powers.");
Hundertmark v. State of Florida D1ept. of Transportation, 205 F.3d 1272,
1276 (11th Cir. 2000) (post-Kimel case holding that under the Equal Pay
Act, "[w]hile it is true that Congress has not made similar findings
with respect to wage discrimination in the public sector, such findings
are not fatal..."). This is consistent with the Supreme Court's continuous
support of Congress' ability to enact broad prophylactic legislation to
prevent race or gender discrimination. See Kimel, 120 S.Ct. at 648; see
also Mills, 118 F.3d at 47.*fn71
|||For example, the Court and this circuit have held, without requiring
specific proof of pervasive constitutional violations, that Congress may,
under section 5, deter unconstitutional discrimination against suspect
classes by outlawing constitutional, non-intentional discrimination against
suspect classes in the workplace,*fn72
banning constitutional literacy tests,*fn73
banning constitutional English language requirements for students educated
only in Spanish in American schools,*fn74
imposing a non-constitutionally mandated requirement of pre-clearance
for changes in voting standards,*fn75
and granting non-constitutionally mandated attorney's fees to parties
bringing victorious claims under the Civil Rights Act.*fn76
Thus, in this respect I agree with Judge Posner, who stated in interpreting
this power that Congress can believe those who "constitute a historically
disadvantaged ('suspect') class . . . might be thought in need of special
protections -- of a glacis in front of the core [constitutional] prohibitions
-- in order to make those prohibitions fully effective." Velasquez,
160 F.3d at 391.
|||Turning to an analysis of the FMLA in light of the foregoing principles,
I first emphatically disagree with the majority's piecemeal, fragmented
approach to a determination of whether the statute is a congruent, proportional
and rational means to prevent and deter governmental and private gender
based discrimination. The FMLA is a comprehensive, reticulated statute
that prohibits and requires a synergism of constitutional employment practices
as a rational means of deterring the difficult and intractable evils of
governmental and private gender based discrimination in employment. Although
a principal goal of the FMLA is to deter sex discrimination against male
and female employees in granting leave time, the statute also addresses
a complex of inextricably related issues and side effects, such as, gender
discrimination based on sexual stereotypes, counterbalancing of perceived
inequities and incentives to discriminate, and the ramifications of the
legislation for children and families. As the majority concedes, it has
no authority to support its atomistic interpretative methodology by which
it parses the statute into subsections, examines each in isolation, and
requires that each be based on its own separate evidentiary predicate.
Proceeding as the proverbial blind men examining an elephant's parts my
colleagues fail to discover the true nature of the creature as a whole.
As discussed infra, the remedies implemented by the FMLA are not distinct,
but rather were found interdependently necessary as a whole to effectuate
Congress' stated purpose to deter and prevent unconstitutional discrimination.
|||The FMLA undoubtedly was enacted to deter or prevent unconstitutional
gender discrimination against employees by both governmental and private
employers. Section 2601 of the FMLA lists the findings and purposes of
the FMLA related to gender discrimination by public and private employers:
|||(a) Congress finds that:
|||(5) due to the nature of the roles of men and women in our society,
the primary responsibility for family caretaking often falls on women,
and such responsibility affects the working lives of women more than it
affects the working lives of men; and
|||(6) employment standards that apply to one gender only have serious
potential for encouraging employers to discriminate against employees
and applicants for employment who are of that gender.
|||(b) It is the purposes of this Act
|||(1) to balance the demands of the workplace with the needs of families,
to promote the stability and economic security of families, and to promote
national interests in preserving family integrity;
|||(2) to entitle employees to take reasonable leave for medical reasons,
for the birth or adoption of a child, and for the care of a child, spouse,
or parent who has a serious health condition;
|||(4) to accomplish the purposes described in paragraphs (1) and (2) in
a manner that, consistent with the Equal Protection Clause of the Fourteenth
Amendment, minimizes the potential for employment discrimination on the
basis of sex by ensuring generally that leave is available for eligible
medical reasons (including maternity-related disability) and for compelling
family reasons, on a gender-neutral basis.
|||(5) to promote the goal of equal employment opportunity for women and
men, pursuant to such clause. 29 U.S.C. § 2601(a)(5)-(6), (b)(1)-(2),
(b)(4)-(5); see also S.Rep. No. 103-3 at 16 (1993) ("A law providing
special protection to women or any defined group . . . runs the risk of
causing discriminatory treatment. S.5, by addressing the needs of all
workers, avoids such a risk.") and H.R.Rep. No. 103-8(I), at 29 (1993).
|||It is thus clear that one principal purpose of the FMLA was to act as
legislation under section 5 of the Fourteenth Amendment to prevent or
deter sex discrimination in the granting of family leave by both private
and public employers.
|||Because a gender classification, as a basis for state action, is quasi-suspect
under the Equal Protection Clause and calls for heightened scrutiny,*fn77
the sole inquiry under the Supreme Court's cases, including Kimel and
Boerne, is whether the FMLA's prohibition of certain constitutional state
conduct is a rational means to deter gender discrimination by government
employers. By imposing a fixed amount of leave time for both men and women,
Congress has insured that no employer, private or public, will be able
to discriminate in granting leave time based on historical, irrational
gender-based stereotypes by either refusing to hire women because of their
perceived role as the primary caregiver and nurturer of families or by
refusing to allow leave time to men based on the assumption that women
are better suited for such roles. Thus, it clearly cannot be denied that
the FMLA is a rational means of deterring governmental gender discrimination
against employees. That Congress has not chosen a less intrusive means
to achieve this end or that this court would have adopted a narrower means
is entirely irrelevant to the sole issue at hand -whether such a means
is a rational way to deter governmental sex discrimination.*fn78
As it is impossible to say, in view of our common political, social and
historical knowledge, that the legislation is not a rational means of
deterrence of unconstitutional gender discrimination, I believe the FMLA
was properly enacted under Congress' section 5 enforcement powers and
thus properly abrogates the States' Eleventh Amendment immunity.
|||Even if it were required that Congress compile a legislative record
to demonstrate the existence of past and current gender discrimination
by government employers as a predicate for the enactment of the FMLA pursuant
to section 5 (although I believe there is no such constitutional requisite),
the procedural and legislative history of the FMLA clearly provides more
than a sufficient predicate of evidence, findings and facts. The FMLA
is the end result of a lengthy process intended, through the imposition
of employment standards, to deter sex discrimination against both men
and women in the granting of leave time. The legislative history and record
bear out that, unlike the majority's reading, Congress enacted the FMLA
as a single, comprehensive response to prevent sex discrimination in governmental
and private workplaces that Congress had unsuccessfully attempted to address
through more narrowly tailored legislation for over three decades.
|||Initially, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e,
et. seq., was intended to remedy discrimination in the workplace based
on, inter alia, sex. In 1972, perceiving widespread discrimination on
the basis of sex in educational institutions, Congress amended Title VII
to extend its coverage to such institutions. See H.R. Rep. 92-238 at n.6
("Discrimination against minorities and women in the field of education
is as pervasive as discrimination in any other area of employment . .
. . When they have been hired into educational institutions . . . women
have been relegated to positions of lesser standing than their male counterparts.").
In 1976, however, the Supreme Court held that Title VII did not protect
discrimination based on pregnancy under the theory that such discrimination
is not discrimination based on sex, but rather is discrimination among
women based on a medical condition. See General Electric Co. v. Gilbert,
429 U.S. 125 (1976) (citing Geduldig v. Aiello, 417 U.S. 484 (1974)).
In response, Congress amended section 701 of Title VII by enacting the
Pregnancy Discrimination Act ("PDA"), effectively overruling
Gilbert by amending the definition of discrimination on the basis of sex
to include discrimination on the basis of pregnancy. Although not directly
addressing Geduldig, the Court did implicitly recognize that the PDA was
proper prophylactic legislation to prevent sex discrimination under Title
VII and thus reversed Gilbert in full. See Newport News, 462 U.S. at 676
(1983) (recognizing that the PDA "not only overturned the specific
holding in [Gilbert] but also rejected the test of discrimination employed
by the Court in that case").
|||The PDA, although amending the definition of discrimination to include
discrimination based on pregnancy, failed to affirmatively grant pregnant
workers leave time or the right to return to their job; rather, an employer
only needed to provide such benefits if he provided them to other temporarily
disabled workers. In response, the State of California enacted legislation
mandating these rights for pregnant workers. The California statute was
soon challenged in federal court on the grounds that it required employers
to discriminate against non-pregnant employees in violation of Title VII
as amended by the PDA. Although eventually reversed by the Ninth Circuit
and the Supreme Court, the Central District of California held that the
California statute did so conflict with Title VII. See California Savings
and Loan Assoc. v. Guerre, 479 U.S. 272 (1987). Perceiving that enacting
the PDA had not achieved the intended result of preventing discrimination
against either women or men in the granting of leave time in that the
States felt it necessary to affirmatively grant pregnancy leave to women
and not men, in 1985 Congress began considering the issue of family and
medical leave. See generally Sabra Craig, Note, The Family and Medical
Leave Act of 1993: A Survey of the Act's History, Purposes, Provisions
and Social Ramifications, 44 Drake L.Rev. 51 (1995).
|||In 1985, Representative Pat Schroeder introduced the Parental and Disability
Leave Act of 1985 ("PDLA") in the House of Representatives.
The PDLA provided for eighteen weeks of unpaid leave for both mothers
and fathers of newborn or adopted children and twenty-six weeks of unpaid
leave for employees' non-work related disabilities or sick children. The
PDLA was not considered by the House of Representatives, but was resubmitted
in 1986 by Representative William Clay and renamed the Parental and Medical
Leave Act of 1986 ("PMLA"). The Subcommittee on Compensation
and Employee Benefits and the Committee on Post Office and Civil Service
conducted joint hearings on the PMLA, as did the Subcommittee on Labor
Management Standards, to determine the extent of discrimination against
men and in favor of women in the workplace with regard to taking leave
to care for sick family members. The full House of Representatives once
again failed to consider the bill. In 1989, Representative Clay re-introduced
the Family and Medical Leave Act in the House of Representatives. The
1989 version, which was substantially similar to the 1987 version, was
passed by both the House of Representatives and the Senate but was vetoed
by President Bush in June 1990. In January 1991 Senator Christopher Dodd
introduced the Family and Medical Leave Act of 1991 to the Senate, which
was identical to the bill vetoed by the President in 1991. Congress then
amended the bill, changing solely the amount of mandatory leave per year
from between eighteen to twenty-six weeks to twelve weeks. The Act was
eventually passed by both the House of Representatives and the Senate,
only to be vetoed once again in September 1992 by President Bush. See
generally H.R. Rep. No. 103-8(II).
|||In January 1993, Representative William Ford once again introduced the
Family and Medical Leave Act ("FMLA") to the House of Representatives.
The leave provisions of the 1993 FMLA were substantially similar to those
of the amended 1991 FMLA. H.R. Rep. No. 103-8(II) (1993). In considering
enactment of the 1993 FMLA, the House of Representatives considered both
new evidence of discrimination based on sex with regard to leave and reviewed
the testimony given at hearings with respect to the prior "substantially
similar" bills considered in prior years. H.R. Rep. No. 103-8(I).
The 1993 FMLA was passed by both the House of Representatives and the
Senate, and was signed into law in February 1993 by President Clinton.
|||As the House Report indicates, the genesis of the FMLA has its roots
in the 1985 proposed legislation and is substantially similar to that
legislation. Further, the House Report indicates that not only did Congress
know of the previous efforts to enact the FMLA, but it based each subsequent
version on prior versions. The House of Representatives makes multiple
references to the committee hearings held for the 1986 PMLA and utilizes
some of the findings as a basis for enacting the FMLA. H.R. Rep. No. 103-8(I).
As a result of these references it is not only permissible, but necessary,
to look to the legislative history and intended purposes of these earlier
bills as well as the one finally enacted into law in 1993 to determine
|||It appears clear from the legislative history that Congress perceived
sex discrimination in the granting of family and medical leave, notably
in favor of granting such leave to women, and was acting accordingly in
enacting the FMLA. See, e.g., S.Rep. No. 103-3, at 14 - 15 (1993) (discussing
studies by the Bureau of Labor Statistics highlighting the discrepancy
between the availability of maternity and paternity leave). Testimony
in hearings throughout the legislative process demonstrated that such
discrepancies occurred in both the private and public sectors. See, e.g.,
Parental and Medical Leave Act of 1986: Hearings on H.R. 4300 Before the
Subcomm. on Labor Management Standards, 99th Cong., 30, 147 (testimony
of Meryl Frank, Director of the Yale Bush Center Infant Care Leave Project,
that "[w]e found that public sector leaves don't vary very much from
private sector leaves."); id. at 147 (statement of the Washington
Council for Lawyers that "men, both in the public and private sectors,
receive notoriously discriminatory treatment in their request for such
leave."); Parental and Medical Leave Act of 1987: Hearings on S.249
Before the Subcomm. on Children, Family, Drugs and Alcoholism, 100th Cong.,
364-74 (testimony of Elaine Gordon, Member of the Florida House of Representatives,
that leave is only granted to female [public] employees in Florida and
that Florida rejected extending such leave to men); id. at 385 (testimony
of Gerald McEntee, International President, American Federation of State,
County and Municipal Employees that "the vast majority of our [public
employment] contracts, even though we look upon them with great pride,
really cover essentially maternity leave, and not paternity leave. And
this is so key to the bill that it opens up the eyes of employers and
opens up the eyes of America."); Family and Medical Leave Act of
1989: Hearings on H.R. 770 Before the Subcomm. on Labor-Management Relations,
101st Cong. 271 (statement of the Concerned Alliance of Responsible Employers
that 13 states grant family leave to women and not men).*fn80
|||The House Report on the 1993 FMLA indicates that Congress was aware
of such testimony and at least partially relied on this testimony in enacting
provisions of the current FMLA. See, e.g., H.R.Rep. No. 103-8(I) (1993)
("Meryl Frank, director of the Infant Care Leave Project of the Yale
Bush Center in Child Development and Social Policy, reported to the committee
on the 1986 conclusions and recommendations of the Project's Advisory
Committee on Infant Care Leave."). Further, the Senate Report specifically
mentioned that the FMLA was passed in response to "government policies
that have failed to adequately respond to recent economic and social changes
that have intensified the tensions between work and family." S.Rep.
No. 103-3 at 4 (1993). It thus seems clear that Congress intended to enact
the FMLA at least in part to directly remedy actual incidents of sex discrimination
in the granting of family leave time that existed in both the public and
private sectors. See generally Garrett v. University of Alabama at Birmingham
Board of Trustees, 193 F.3d 1214, 1228-30 (11th Cir. 1999) (Cook, J.,
dissenting) (providing a comprehensive discussion of the background of
the FMLA). Thus, in this respect I cannot agree with the majority that
"Congress identified no pattern of discrimination by the States with
respect to the granting of employment leave for the purpose of providing
family care," nor can I agree that "the legislative record for
this provision is devoid of evidence of public sector discrimination"
against the temporarily disabled, as this was precisely what the PDA and
then the FMLA were enacted in response to. Maj.Op. at 10, 11.
|||Thus, even under the majority's reasoning, I believe there is more than
a sufficient evidentiary and factual predicate in the legislative record
to support Congress's determination that the FMLA was a rational means
of deterring and preventing sex discrimination by governmental employers
and thus was enacted pursuant to its section 5 powers. As all parties
agree that Congress provided the necessary clear statement of its intent
to abrogate, the FMLA as appropriate section 5 legislation properly abrogates
the States' Eleventh Amendment immunity under this rationale as well.
|||*fn1 . 29 U.S.C. §§ 2601 et seq.
|||*fn2 . See, e.g., Kimel v. Florida
Board of Regents, __ U.S. __, __, 120 S.Ct. 631, 640 (2000) ("[T]he
Constitution does not provide for federal jurisdiction over suits against
|||*fn3 . Id at __, 120 S.Ct. at 644.
|||*fn4 . Seminole Tribe of Florida v.
Florida, 517 U.S. 44, 55 (1996).
|||*fn5 . Id.
|||*fn6 . U.S. CONST. amend. XIV, § 1.
|||*fn7 . U.S. CONST. amend. XIV, § 5.
|||*fn8 . Kimel, __ U.S. at __, 120 S.Ct.
at 644 (citations omitted).
|||*fn9 . Id (quotations and citations
|||*fn10 . Id (quotations and citations
|||*fn11 . Id (quotations and citations
|||*fn12 . Id (quotations and citations
|||*fn13 . __ U.S. __, 120 S.Ct. 631
|||*fn14 . Kimel, 527 U.S. at __, 120
S.Ct. at 647.
|||*fn15 . Kimel, 527 U.S. at __, 120
S.Ct. at 646.
|||*fn16 . Id.
|||*fn17 . City of Boerne v. Flores,
521 U.S. 507, 531 (1997); Florida Prepaid Post-secondary Ed. Expense Bd.
v. College Savings Bank, 527 U.S. 627, __, 119 S.Ct. at 2207 (1999).
|||*fn18 . Kimel, 527 U.S. at __, 120
S.Ct. at 648-50.
|||*fn19 . Id, 527 U.S. at __, 120
S.Ct. at 647.
|||*fn20 . 29 U.S.C. § 2612(a)(1).
|||*fn21 . We do note, however, that
in a recent decision the Eleventh Circuit chose to analyze the validity
of the FMLA's purported abrogation of State sovereign immunity on a subsection-by-subsection
basis. See Garrett v. University of Alabama, 193 F.3d 1214 (11th Cir.
|||*fn22 . The FMLA's statement of
purpose reflects that one of its primary purposes is to "minimize
the potential for employment discrimination on the basis of sex by ensuring
generally that leave is available for... compelling family reasons, on
a gender-neutral basis." 29 U.S.C. § 2601(b)(4).
|||*fn23 . See The Parental and Medical
Leave Act of 1987: Hearings on S.249 Before the Subcommittee on Children,
Families, Drugs and Alcoholism of the Senate Committee on Labor and Human
Resources, Part 2, 100th Cong. 536 (1987) (Statement of Professor Susan
Deller Ross, Georgetown University Law Center) ("T]here are a number
of studies ... in which it's shown that employers in this country that
are giving family leaves to their workers are not giving it non-discriminatorily,
they are, by and large, giving it only to women, not to men. It's fairly
|||*fn24 . See The Family and Medical
Leave Act of 1991: Hearing on S.5 Before the Subcommittee on Children,
Family, Drugs and Alcoholism of the Senate Committee on Labor and Human
Resources, 102d Cong. 10 (1991) (Statement of Senator Adams) ("[T]he
reality today is that women are the primary caregivers for elderly parents.
... It is the daughters, whether biological or through marriage, that
account for the majority of caregivers.").
|||*fn25 . See United States v. Virginia,
518 U.S. 515, 533 (1996).
|||*fn26 . Mississippi Univ. for Women
v. Hogan, 458 U.S. 718, 724 (1982) (citation omitted).
|||*fn27 . See City of Boerne, 521
U.S. at 531-32; Florida Prepaid, 527 U.S. at __, 119 S.Ct. at 2207; Kimel,
__ U.S. at __, 120 S.Ct. at 648-50.
|||*fn28 . Kimel, __ U.S. at __, 120
S.Ct. at 649 ("Finally, the United States' argument that Congress
found substantial age discrimination in the private sector... is beside
the point. Congress made no such findings with respect to the States.").
|||*fn29 . It would be perfectly constitutional,
for example, for a State to provide employees with only eight weeks of
leave per year to provide family care.
|||*fn30 . See Sims v. University of
Cincinnati, __ F.3d __, 2000 WL 973501 (6th Cir. 2000) (reaching the same
|||*fn31 . See H.R. Rep. No. 99-699,
Part 2, at 25 (1986) ("[A] worker who has lost a job due to a serious
health condition faces future discrimination in finding a job which has
even more devastating consequences for the worker and his or her family.");
Family and Medical Leave Act of 1989: Hearing on S.345 Before the Subcommittee
on Children, Family, Drugs, and Alcoholism of the Senate Committee on
Labor and human Resources, 101st Cong. 26-27 (1989) (testimony of Ms.
Barbara Hoffman, Vice President of the National Coalition for Cancer Survivorship)
(stating that the "disparate treatment" of cancer survivors
"includes dismissal, demotion, and loss of benefits" and that
"[s]uch discrimination against qualified employees costs society
millions of dollars in lost wages, lost productivity and needless disability
|||*fn32 . See 29 U.S.C. § 2601(a)(6)
("[E]mployment standards that apply to one gender only have serious
potential for encouraging employers to discriminate against employees
and applicants for employment who are of that gender.").
|||*fn33 . Geduldig v. Aiello, 417
U.S. 484 (1974).
|||*fn34 . See The Parental and Medical
Leave Act of 1986: Joint Hearing on H.R. 4300 Before the Subcommittee
on Labor-Management Relations and the Subcommittee on Labor Standards
of the House Committee on Education and Labor, 99th Cong. 36, 42 n.48
(1986) (excerpt from brief of the American Civil Liberties Union).
|||*fn35 . See Geduldig v. Aiello,
417 U.S. 484 (1974).
|||*fn36 . We note that pregnancy does
fall within the definition of disability that is supplied by the statute,
as pregnancy is a serious health condition that may affect the ability
of an employee to perform work.
|||*fn37 . City of Cleburne v. Cleburne
Living Center, 473 U.S. 432, (1985).
|||*fn38 . Id at 442 ("[W]e conclude
for several reasons that the Court of Appeals erred in holding mental
retardation a quasi-suspect classification calling for a more exacting
standard of judicial review than is normally accorded economic and social
|||*fn39 . 29 U.S.C. § 621 et seq.
|||*fn40 . Kimel, __ U.S. at __, 120
S.Ct. at 647.
|||*fn41 . See id at 645 ("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.").
|||*fn42 . Id at 649 ("[T]hat
Congress found substantial... discrimination in the private sector...
is beside the point. Congress made no such findings with respect to the
|||*fn43 . Id at 650.
|||*fn44 . Florida Prepaid, 527 U.S.
at __, 119 S.Ct. at 2207 (citation and quotations omitted).
|||*fn45 . 136 F.3d 430 (5th Cir. 1998).
|||*fn46 . 42 U.S.C. §§ 12131-12165
|||*fn47 . See Scott v. University
of Mississippi, 148 F.3d 493 (5th Cir. 1998), overruled by Kimel, __ U.S.
__, 120 S.Ct. 631 (2000).
|||*fn48 . See Hale v. Mann, __ F.3d
__, 2000 WL 675209 (2d Cir. 2000) (reaching the same result).
|||*fn49 . Dissent at 2.
|||*fn50 . 17 U.S. (4 Wheat.) 316,
|||*fn51 . Although the dissent accuses
us of obstructing coherent dialogue by conflating rational means review
with rational basis review, the dissent fails to articulate any substantive
difference between rational basis review and the standard that it proposes.
Rather than fence with the ghost of the dissent's imagined standard, we
have labeled the dissent's approach "rational basis review"
in an attempt to lend it an established framework of substantive content.
|||*fn52 . We note in passing that
the FMLA does not directly prohibit sex discrimination at all. For example,
under the FMLA it would be perfectly permissible for an employer to grant
15 weeks of leave per year to female employees while granting only 12
weeks of leave per year to males.
|||*fn53 . 521 U.S. 507, 516 (1997).
|||*fn54 . See, e.g., McGowan v. Maryland,
366 U.S. 420 (1961).
|||*fn55 . "Rational basis"
review is an equal protection standard rooted in Section 1 of the Fourteenth
Amendment, whereas the "congruence and proportionality" test
defines the outermost limits of Congress's enforcement powers under Section
5 of the Fourteenth Amendment.
|||*fn56 . See S.Rep. No. 103-3, at
14-15 (presenting statistics relating to parental leave for "employees
working in private business" and a survey of "253 U.S. corporations").
|||*fn57 . See Parental and Medical
Leave Act of 1986: Hearings on H.R. 4300 Before the Subcomm. On Labor
Management Standards, 99th Cong., 30, 147 (testimony of Meryl Fran, Director
of the Yale Bush Center Infant Care Leave Project, deploring the fact
that "American women have no statutory right to parental leave").
|||*fn58 . See Parental and Medical
Leae Act of 1987: Hearings on S.249 Before the Subcomm. On Children, Family,
Drugs and Alcoholism, 100th Cong., 338 (testimony of Gerald McEntee, International
President, American Federation of State, County, and Municipal Employees,
that "one conclusion which can be drawn is that a vast number of
employees in the State and local government sector already have the right
to take unpaid parental leave or maternity leave for periods in excess
of 18 weeks. Ninety percent of the employees covered in the sample, or
650,000 people, already had the right to a leave of four months or more.
Clearly, parental leave is a fact of life in the public sector. ... And
if government at all levels can live with unpaid parental leave, then
so can private industry.").
|||*fn59 . See Fl. St. § 110.221 (1991)
(providing parental leave "for the father or mother of a child who
is born to or adopted by that parent."). The fact that Florida changed
its parental leave policy in 1991 to make leave available to parents of
both sexes indicates that other testimony relied on by the dissent, stating
that in 1989 13 states granted family leave to women but not to men, was
similarly outdated and unreliable by the time that the FMLA was enacted
|||*fn60 . __ U.S. at __, 2000 WL 14165
at *13, citing City of Boerne, 521 U.S. at 531.
|||*fn61 . Dissent at 43 (internal
quotation marks omitted).
|||*fn62 . See Dissent at 10-14 (noting
that Congress is entitled to substantially less deference in enacting
prophylactic legislation that is purportedly designed to prevent discrimination
on the basis of classifications that are not constitutionally suspect).
|||*fn63 . The dissent appears to take
the position that we must either uphold or strike down the FMLA in its
entirety, despite the fact that only two of its four substantive provisions
are at issue here. See Dissent at 29. The dissent cites no authority for
its position, even though it would require breaking with both the Second
and Eleventh Circuits. See Garrett, 193 F.3d 1214 (11th Cir. 1999), Hale,
__ F.3d __, 2000 WL 675209 (2d Cir. 2000). Moreover, the dissent's all-or-nothing
approach would give Congress virtually unlimited authority to pass clearly
unconstitutional provisions merely by tacking them onto statutes that
are otherwise constitutional, a result that simply cannot be right.
|||*fn64 . See, e.g., Parental and
Medical Leave Act of 1987: Hearings on S.249 Before the Subcomm. On Children,
Family, Drugs and Alcoholism, 100th Cong., 365-70 (testimony of Elaine
Gordon, Member of the Florida House of Representatives, stating that "[t]here
must be come official commitment to acknowledging motherhood as a societal
function and stating that those who combine work and childbearing shall
not be penalized," and noting that to that end she had "introduced
a bill relating to maternity leave... propos[ing] to extend maternity
leave beyond state employees and encompass all employees, public and private");
Parental and Medical Leave Act of 1986: Hearings on H.R. 4300 Before the
Subcomm. On Labor Management Standards, 99th Cong., 30, 147 (testimony
of Meryl Fran, Director of the Yale Bush Center Infant Care Leave Project,
deploring the fact that "American women have no statutory right to
parental leave" and making reference to a study she conducted researching
the availability of parental leave to women only).
|||*fn65 . The claims brought against
the defendants in their individual capacities must be dismissed for lack
of subject matter jurisdiction because it is clear that the State of Louisiana
is the real party in interest. See Pennhurst State School & Hospital
v. Halderman, 465 U.S. 89, 101 (1984) ("The Eleventh Amendment bars
a suit against state officials when the state is the real, substantial
party in interest. ... [T]he general rule is that relief sought nominally
against an officer is in fact against the sovereign if the decree would
operate against the latter.") (citations omitted).
|||*fn66 . As I understand the majority
opinion, it views Kimel and City of Boerne as a departure of revolutionary
proportions from the Court's precedents and doctrine of stare decisis:
Congress can no longer enact any legislation to deter equal protection
violations of any kind without a legislative record evincing a significant
pattern of unconstitutional state discrimination, and preemptive legislation
designed to deter state discrimination against suspect or quasi-suspect
classes is not appropriate if that legislation prohibits substantially
more constitutional than unconstitutional state employment decisions or
|||*fn67 . The majority's conflation
of the "rational means" standard for appropriate Congressional
legislation under §5 of the Fourteenth Amendment with the "rational
basis" equal protection scrutiny level is unfortunate and tends to
obstruct coherent dialogue. See Maj. Op., at 19-21. The majority confuses
the similar-sounding terms, "rational means" and "rational
basis,"-terms which in fact denote strategically different constitutional
analyses. "Rational means" has been used to describe Congressional
legislation under §5 of the Fourteenth Amendment that appropriately remedies
or deters states' violations of §1 of the Amendment. See Katzenach v.
Morgan, 384 U.S. 641, 650-651 (1966)("[T]he McCulloch v. Maryland
standard is the measure of what constitutes 'appropriate legislation'
under § 5 of the Fourteenth Amendment.") The rational basis test
is used to determine whether state discrimination against a non-suspect
class is constitutionally infirm. See Kimel, 120 S.Ct. 631, 646 (2000).
|||*fn68 . Accordingly, I disagree
with the majority's suggestion that Kimel calls into question this circuit's
recognition of the abrogation of Eleventh Amendment immunity by the ADA
under section 5 of the Fourteenth Amendment in Coolbaugh v. State of Louisiana,
136 F.3d 430 (5th Cir. 1998). Compared to the FMLA, the ADA presented
a more debatable abrogation question, as it is designed to remedy and
deter discrimination on the basis of disability or handicap, rather than
race or gender. However, Coolbaugh is binding on the present panel, regardless
of the majority's predilections. See Neinast v. Texas, ___ F.3d ___, 2000
WL 827920 (5th Cir. 2000) (post-Kimel case recognizing Coolbaugh as binding).
Moreover, reasonable jurists in other circuits do not read Kimel as auguring
Coolbaugh's demise. See Kilcullen v. New York State Dept. of Labor, 205
F.3d 77 (2nd Cir. 2000) (post-Kimel case finding the ADA properly enacted
under section 5); Erickson v. Board of Governors of State Colleges and
Universities for Northeastern Illinois University, 207 F.3d 945, 953 (7th
Cir. 2000) (Wood, J., dissenting). Consequently, it would be more appropriate
for the majority to consider how Coolbaugh might be reconciled with Kimel,
rather than abandon Coolbaugh prematurely.
|||*fn69 . Governmental gender classifications
are presumptively invalid. E.g., United States v. Virginia, 518 U.S. at
532 (citing J.E.B. v. Alabama ex rel. T.B., 511 U.S 127, 152 (Kennedy,
J. concurring)). Section 5 legislation outlawing constitutional conduct
to prevent or deter violations of suspect or quasi-suspect classes' rights
has consistently been upheld. See, e.g., Fitzpatrick v. Bitzer, 427 U.S.
445, 453, n.9 (1976)(federal court action under Title VII by present and
retired male employees of Connecticut against the state, based on governmental
gender discrimination in state retirement plan, was not precluded by the
Eleventh Amendment. It was undisputed that Congress enacted Title VII,
which grants remedial and deterrent protection to suspect and quasi-suspect
classes, and its 1972 Amendments extending coverage to the States as employers,
pursuant to its power under § 5 of the Fourteenth Amendment.); Katzenbach
v. Morgan, 384 U.S. 641, 652 (1966)(upholding § 4(e) of the Voting Rights
Act of 1965 as appropriate legislation under § 5 of the Fourteenth Amendment
"to secure for the Puerto Rican community residing in New York nondiscriminatory
treatment by government-both in the imposition of voting qualifications
and the provision or administration of governmental services, such as
public schools, public housing and law enforcement."); Lopez v. Monterey
County, 525 U.S. 266 (1999)(Hispanic voters successfully challenged unprecleared
ordinance changing methods for electing county judges enacted by Monterey
County, which was designated a jurisdiction covered by the preclearance
requirement, § 5 of Voting Rights Act of 1965, although the election change
was required by state law, California itself was not a covered jurisdiction,
and, according to Justice Thomas' dissent, id., at 295-296, there had
"been no legislative finding that the State of California has ever
intentionally discriminated on the basis of race, color, or ethnicity
with respect to voting.")
|||*fn70 . See also Laurence H. Tribe,
American Constitutional Law, § 5-17, at 959-960 (3rd ed. 1999) [hereinafter
Tribe]: "Katzenbach v. Morgan and all its progeny spanning nearly
34 years by the turn of the century, have now settled beyond question
that, in order to enforce § 1 of the Fourteenth Amendment, Congress may,
acting pursuant to §5, outlaw practices that are not themselves violations
of § 1 in any sense -- provided one can show that outlawing those practices
is a rational way to deter or to remedy actions that would violate § 1."
(Footnote and emphasis omitted).
|||*fn71 . This is also consistent
with the fact that the Supreme Court has never held that a statute intended
to remedy race or sex discrimination was not enacted pursuant to section
5 of the Fourteenth Amendment. Compare Kimel, 120 S.Ct. at 649; Florida
Prepaid Post-secondary Ed. Expense Bd. v. College Savings Bank, 527 U.S.
627 (1999) (holding the Patent Remedy Act not enacted pursuant to section
5); Boerne, 521 U.S. at 531 (holding the Religious Freedom Restoration
Act not enacted pursuant to section 5) with Fitzpatrick v. Bitzer, 427
U.S. 445 (1976) (holding Title VII of the Civil Rights Act was enacted
pursuant to section 5).
|||*fn72 . See Fitzpatrick, 427 U.S.
at 456. Although the Constitution does not prohibit non-intentional acts
that disparately impact suspect classes, Washington v. Davis, 426 U.S.
229 (1976), Title VII does. Thus, the Supreme Court has already once found
that Congress is acting pursuant to section 5 when outlawing broad swaths
of conduct that are not unconstitutional as a means to deter unconstitutional
discrimination on the basis of race or sex. See Cole, 1997 Sup.Ct.Rev.
at 45. This circuit has recently reaffirmed this holding. See Ussery v.
Louisiana, 150 F.3d 431, 434 (5th Cir. 1998).
|||*fn73 . See Oregon v. Mitchell,
400 U.S. 112 (1970); South Carolina v. Katzenbach, 383 U.S. at 336. The
Court in Boerne specifically cited passages from South Carolina v. Katzenbach
that support Congress' ability to enact legislation based on Congress'
rational belief that such legislation would deter discrimination without
specific proof that such discrimination had occurred. Boerne, 521 U.S.
at 526 ("Congress could have determined that racial prejudice is
prevalent throughout the Nation, and that literacy tests unduly lend themselves
to discriminatory application, either conscious or unconscious")
(opinion of Harlan, J.); ("[T]here is no question but that Congress
could legitimately have concluded that the use of literacy tests anywhere
within the United States has the inevitable effect of denying the vote
to members of racial minorities whose inability to pass such tests is
the direct consequence of previous governmental discrimination in education")
(opinion of Brennan, J.); ("[N]ationwide [suspension of literacy
tests] may be reasonably thought appropriate when Congress acts against
an evil such as racial discrimination which in varying degrees manifests
itself in every part of the country") (opinion of Stewart, J.) (internal
|||*fn74 . Katzenbach v. Morgan, 384
U.S. at 651.
|||*fn75 . See Lopez, 525 U.S. at 282;
id. at 295 (Thomas, J., dissenting) (noting that the Court did so without
requiring specific proof in the legislative record); City of Rome v. United
States, 446 U.S. 156 (1980).
|||*fn76 . See Corpus, 605 F.2d at
|||*fn77 . See, e.g., United States
v. Virginia, 518 U.S. at 533 (affirming the heightened constitutional
scrutiny for sex discrimination); Orr v. Orr, 440 U.S. 268 (1979) (holding
state alimony laws may not discriminate against men); Califano v. Goldfarb,
430 U.S. 199, 208 n.8 (1977) (holding discrimination against men must
meet heightened constitutional scrutiny).
|||*fn78 . Further, as discussed infra,
Congress in fact did attempt to deter gender discrimination through narrower
means by enacting the Pregnancy Discrimination Act, and found such means
|||*fn79 . Despite their protestations,
it appears that the majority agrees in that the only legislative history
cited in the majority opinion is from these earlier bills, including the
1987 act. See Maj.Op. at 9.
|||*fn80 . The majority relies heavily
on the statement in Kimel that the Court would not impute evidence of
age discrimination by private employers to the States. See Kimel, 120
S.Ct. at 649. This statement must be taken in the context of Kimel, i.e.,
that evidence of private discrimination based on age has no probative
value with respect to unconstitutional discrimination based on age by
the States because it is so unlikely that discrimination engaged in by
private employers would be considered unconstitutional if engaged in by
States. With respect to race and gender, however, because of the significant
likelihood that any discrimination by States on those bases would be unconstitutional,
evidence that such discrimination is widespread throughout the private
sector may be sufficient in itself to justify Congressional enactment
of prophylactic legislation to prevent such widespread discrimination
from being performed by the States. Cf. Florida Prepaid, 527 U.S. at ___;
119 S.Ct. at 2207.
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