Lead Opinion
announced the judgment of the Court and delivered an opinion, in which The Chief Justice, Justice Thomas, and Justice Alito joined.
The question in this case is whether a state employee is allowed to recover damages from the state entity that employs him by invoking one of the provisions of a federal statute that, in express terms, seeks to abrogate the States’ immunity from suits for damages. The statute in question is the Family and Medical Leave Act of 1993, 107 Stat. 6, 29 U. S. C. § 2601 et seq. The provision at issue requires employers, including state employers, to grant unpaid leave for self care for a serious medical condition, provided other statutory requisites are met, particularly requirements that the total amount of annual leave taken under all the Act’s provisions does not exceed a stated maximum. § 2612(a)(1)(D). In agreement with every Court of Appeals to have addressed this question, this Court now holds that suits against States under this provision are barred by the States’ immunity as sovereigns in our federal system. See
A
The Family and Medical Leave Act of 1993 (FMLA or Act) entitles eligible employees to take up to 12 workweeks of unpaid leave per year. An employee may take leave under the FMLA for: (A) “the birth of a son or daughter ... in order to care for such son or daughter,” (B) the adoption or foster-care placement of a child with the employee, (C) the care of a “spouse, . . . son, daughter, or parent” with “a serious health condition,” or (D) the employee’s own serious health condition when the condition interferes with the employee’s ability to perform at work. 29 U. S. C. § 2612(a)(1). The Act creates a private right of action to seek both equitable relief and money damages “against any employer (including a public agency) in any Federal or State court of competent jurisdiction.” § 2617(a)(2). As noted, subparagraph (D) is at issue here.
This Court considered subparagraph (C) in Nevada Dept. of Human Resources v. Hibbs,
B
Petitioner Daniel Coleman was employed by the Court of Appeals of the State of Maryland. When Coleman requested sick leave, he was informed he would be terminated if he did not resign. Coleman then sued the state court in the United States District Court for the District of Mary
The District Court dismissed the suit on the basis that the Maryland Court of Appeals, as an entity of a sovereign State, was immune from the suit for damages. The parties do not dispute the District Court’s ruling that the Maryland Court of Appeals is an entity or instrumentality of the State for purposes of sovereign immunity. The District Court concluded the FMLA’s self-care provision did not validly abrogate the State’s immunity from suit. App. to Pet. for Cert. 15-20. The Court of Appeals for the Fourth Circuit affirmed, reasoning that, unlike the family-care provision at issue in Hibbs, the self-care provision was not directed at an identified pattern of gender-based discrimination and was not congruent and proportional to any pattern of sex-based discrimination on the part of States.
II
A
A foundational premise of the federal system is that States, as sovereigns, are immune from suits for damages, save as they elect to waive that defense. See Kimel v. Florida Bd. of Regents,
Congress must “mak[e] its intention to abrogate unmistakably clear in the language of the statute.” Hibbs,
The question then becomes whether the self-care provision and its attempt to abrogate the States’ immunity are a valid exercise of congressional power under § 5 of the Fourteenth Amendment. Section 5 grants Congress the power “to enforce” the substantive guarantees of § 1 of the Amendment by “appropriate legislation.” The power to enforce “‘includes the authority both to remedy and to deter violation[s] of rights guaranteed’” by §1. See Board of Trustees of Univ. of Ala. v. Garrett,
Whether a congressional Act passed under § 5 can impose monetary liability upon States requires an assessment of both the “‘evil’ or ‘wrong’ that Congress intended to remedy,” ibid., and the means Congress adopted to address that evil, see City of Boerne v. Flores,
Under this analysis Hibbs permitted employees to recover damages from States for violations of subparagraph (C). In enacting the FMLA, Congress relied upon evidence of a well-documented pattern of sex-based discrimination in family-
B
The same cannot be said for requiring the States to give all employees the opportunity to take self-care leave. Petitioner advances three arguments for allowing employees to recover damages from States that violate the FMLA’s self-care provision: The self-care provision standing alone addresses sex discrimination and sex stereotyping; the provision is a necessary adjunct to the family-care provision sustained in Hibbs; and the provision eases the burden on single parents. But what the family-care provisions have to support them, the self-care provision lacks, namely, evidence of a pattern of state constitutional violations accompanied by a remedy drawn in narrow terms to address or prevent those violations.
1
Standing alone, the self-care provision is not a valid abrogation of the States’ immunity from suit. When the FMLA was enacted, “ninety-five percent of full-time state- and local-government employees were covered by paid sick leave
Without widespread evidence of sex discrimination or sex stereotyping in the administration of sick leave, it is apparent that the congressional purpose in enacting the self-care provision is unrelated to these supposed wrongs. The legislative history of the self-care provision reveals a concern for the economic burdens on the employee and the employee’s family resulting from illness-related job loss and a concern for discrimination on the basis of illness, not sex. See, e. g., S. Rep. No. 103-3, pp. 11-12 (1993); H. R. Rep., at 23. In the findings pertinent to the self-care provision, the statute makes no reference to any distinction on the basis of sex. See 29 U. S. C. § 2601(a)(4) (“[Tjhere is inadequate job security for employees who have serious health conditions that prevent them from working for temporary periods”). By contrast, with regard to family care Congress invoked concerns related to gender. See § 2601(a)(5) (“[D]ue 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”).
2
As an alternative justification for the self-care provision, it has been suggested that the provision is a necessary adjunct to the family-care provisions. Petitioner argues that employers may assume women are more likely to take family-care leave than men and that the FMLA therefore offers up to 12 weeks of leave for family care and self care combined. According to petitioner, when the self-care provision is coupled with the family-care provisions, the self-care provision could reduce the difference in the expected number of weeks of FMLA leave that different employees take for different reasons.
The fact that self-care leave could have this effect does not mean that it would. If, for example, women are expected to take 20 days of family-care leave per year and men to take 10, and women and men are each expected to take 5 days of self-care leave per year, the difference in the expected number of days of leave and cost to the employer remains the
In addition petitioner’s first defense of the self-care provision contradicts his second defense of the provision. In the first defense, the Court is told employers assume women take more self-care leave than men. See Tr. of Oral Arg. 10-12. In the second defense, the Court is told the self-care provision provides an incentive to hire women that will counteract the incentives created by the family-care provisions because employers assume women take more family-care leave than men. But if the first defense is correct, the second defense is wrong. In other words, if employers assume women take self-care leave more often than men (the first defense), a self-care provision will not provide an incentive to hire women. To the contrary, the self-care pro
There is “little support in the record for the concerns that supposedly animated” the self-care provision. Florida Prepaid, supra, at 639. Only supposition and conjecture support the contention that the self-care provision is necessary to make the family-care provisions effective. The evidence documented in support of the self-care provision is, to a large degree, unrelated to sex discrimination, or to the administration of the family-care provisions. See supra, at 38. Congress made no findings and did not cite specific or detailed evidence to show how the self-care provision is necessary to the family-care provisions or how it reduces an employer’s incentives to discriminate against women. And “Congress . . . said nothing about the existence or adequacy of state” sick-leave policies. Florida, Prepaid, supra, at 644; see Garrett,
The “few fleeting references” to how self-care leave is inseparable from family-care leave fall short of what is required for a valid abrogation of States’ immunity from suits for damages. Florida Prepaid, supra, at 644. These “isolated sentences clipped from floor debates” and testimony, Kimel, supra, at 89, are stated as conclusions, unsupported by evidence or findings about how the self-care provision interrelates to the family-care provisions to counteract
3
Petitioner’s last defense of the self-care provision is that the provision helps single parents retain their jobs when they become ill. This, however, does not explain how the provision remedies or prevents constitutional violations. The fact that most single parents happen to be women, see, e. g., S. Rep. No. 103-3, at 7, demonstrates, at most, that the self-care provision was directed at remedying employers’ neutral leave restrictions which have a disparate effect on women. “Although disparate impact may be relevant evidence of... discrimination ... such evidence alone is insufficient [to prove a constitutional violation] even where the Fourteenth Amendment subjects state action to strict scrutiny.” Garrett, supra, at 372-373; see Tuan Anh Nguyen
Of course, a State need not assert its Eleventh Amendment immunity from suits for damages. See, e. g., Sossamon v. Texas,
⅜ * *
As a consequence of our constitutional design, money damages are the exception when sovereigns are defendants. See, e. g., Pennhurst State School and Hospital v. Halderman,
It is so ordered.
Concurrence Opinion
concurring in the judgment.
The plurality’s opinion seems to me a faithful application of our “congruence and proportionality” jurisprudence. So does the opinion of the dissent. That is because the varying outcomes we have arrived at under the “congruence and proportionality” test make no sense. Which in turn is because that flabby test is “a standing invitation to judicial arbitrariness and policy-driven decisionmaking,” Tennessee v. Lane,
I adhere to my view that we should instead adopt an approach that is properly tied to the text of § 5, which grants Congress the power “to enforce, by appropriate legislation,” the other provisions of the Fourteenth Amendment. (Emphasis added.) As I have explained in greater detail elsewhere, see Lane, supra, at 558-560, outside of the context of racial discrimination (which is different for stare decisis reasons), I would limit Congress’s § 5 power to the regulation of conduct that itself violates the Fourteenth Amendment. Failing to grant state employees leave for the purpose of self-care — or any other purpose, for that matter — does not come close.
Accordingly, I would affirm the judgment of the Court of Appeals.
Dissenting Opinion
with whom Justice Breyer joins, and with whom Justice Sotomayor and Justice Kagan join as to all but footnote 1, dissenting.
Section 1 of the Fourteenth Amendment provides: “No State shall... deny to any person within its jurisdiction the equal protection of the laws.” Section 5 grants Congress the “power to enforce, by appropriate legislation, the provisions of this article.” Congress’ §5 enforcement power includes the authority to remedy and deter violations of § l’s substantive guarantees by prohibiting conduct “not itself forbidden by the Amendment’s text.” Kimel v. Florida Bd. of Regents,
The Family and Medical Leave Act of 1993 (FMLA or Act) entitles eligible employees to 12 weeks of job-secured leave during any 12-month period: (A) to care for a newborn son
Even accepting this Court’s view of the scope of Congress’ power under §5 of the Fourteenth Amendment, I would hold that the self-care provision, § 2612(a)(1)(D), validly enforces the right to be free from gender discrimination in the workplace.
I
Section 5 legislation “must be targeted at conduct transgressing the Fourteenth Amendment’s substantive provisions,” ante, at 36 (internal quotation marks omitted), “[a]nd ‘[t]here must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.’ ” Ibid, (quoting City of Boerne v. Flores,
I begin with the text of the statute, which repeatedly emphasizes gender discrimination. One of the FMLA’s stated purposes is to “entitle employees to take reasonable leave,” 29 U. S. C. § 2601(b)(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,” § 2601(b)(4). Another identified aim is “to promote the goal of equal employment opportunity for women and men, pursuant to [the Equal Protection Clause].” § 2601(b)(5). “[E]mployment standards that apply to one gender only,” Congress expressly found, “have serious potential for encouraging employers to discriminate against employees and applicants for employment who are of that gender.” § 2601(a)(6).
The FMLA’s purpose and legislative history reinforce the conclusion that the FMLA, in its entirety, is directed at sex discrimination. Indeed, the FMLA was originally envisioned as a way to guarantee — without singling out women or pregnancy — that pregnant women would not lose their jobs when they gave birth. The self-care provision achieves that aim.
A brief history is in order. In his 1982 congressional campaign, then-candidate Howard Berman pledged to introduce legislation similar to the California law challenged in California Fed. Sav. & Loan Assn. v. Guerra,
The California law sharply divided women’s rights advocates. “Equal-treatment” feminists asserted it violated the Pregnancy Discrimination Act’s (PDA) commitment to treating pregnancy the same as other disabilities.
While California Fed. moved through the lower federal courts, equal-treatment feminists began work on a gender-
Though this Court, in California Fed., eventually upheld California’s pregnancy-only leave policy as not preempted by the PDA, equal-treatment feminists continued to believe that viewing pregnancy as sui generis perpetuated widespread discrimination against women.
Congress agreed. See infra, at 58-59. Adhering to equal-treatment feminists’ aim, the self-care provision, 29 U. S. C. § 2612(a)(1)(D), prescribes comprehensive leave for women disabled during pregnancy or while recuperating from childbirth — without singling out pregnancy or childbirth. See S. Rep. No. 101-77, p. 32 (1989) (A “significant benefit of the temporary medical leave provided by this legislation is the form of protection it offers women workers who bear children. Because the bill treats all employees who are temporarily unable to work due to serious health conditions in the same fashion, it does not create the risk of discrimination against pregnant women posed by legislation which provides job protection only for pregnancy-related disability. Legislation solely protecting pregnant women gives
II
A
Boerne next asks “whether Congress had evidence of a pattern of constitutional violations on the part of the States.” Hibbs,
Although the PDA proscribed blatant discrimination on the basis of pregnancy, see 42 U. S. C. §§ 2000e(k), 2000e-2, supra, at 48, n. 2, the Act is fairly described as a necessary, but not a sufficient, measure. FMLA hearings conducted between 1986 and 1993 included illustrative testimony from women fired after becoming pregnant or giving birth. For example, Beverly Wilkenson was granted seven weeks of leave upon the birth of her child. On the eve of her return to work, a superior informed her that her job had been eliminated. He stated: “Beverly, the best thing for you to do is stay home and take care of your baby and collect your unemployment.” Hearing on H. R. 770 before the Subcommittee on Labor-Management Relations of the House Committee on Education and Labor, 101st Cong., 1st Sess., 12 (1989) (hereinafter 1989 House Hearing) (statement of Beverly Wilkenson). See also S. Rep, No. 102-68, p. 27 (1991) (hereinafter 1991 Senate Report) (describing Ms. Wilken-son’s testimony). Similarly, Linda Pillsbury was notified that she no longer had a job three weeks after her daughter
These women’s experiences, Congress learned, were hardly isolated incidents. A spokeswoman for the Mayor’s Commission on Women’s Affairs in Chicago testified: “The lack of uniform parental and medical leave policies in the workplace has created an environment where discrimination is rampant. Very often we are contacted by women workers who are at risk of losing their jobs or have lost them because they are pregnant, [or have] given birth.” Id., at 170 (statement of Peggy Montes). See also Joint Hearing on The Parental and Medical Leave Act of 1986 before the Subcommittee on Labor-Management Relations and the Subcommittee on Labor Standards of the House Committee on Education and Labor, 99th Cong., 2d Sess., 110, n. 18 (1986) (hereinafter 1986 House Hearing) (statement of Women’s Legal Defense Fund) (“[W]omen who are temporarily unable to work due to pregnancy, child-birth, and related medical conditions such as morning sickness, threatened miscarriage, or complications arising from childbirth, often lose their jobs because of the inadequacy of their employers’ leave policies.”); 1991 Senate Report 28 (recording that an Atlanta-based job counseling hotline received approximately 100 calls eaeh year from women who were fired, harassed, or forced out of their jobs due to pregnancy or maternity-disability leave); 139 Cong. Rec. 1826 (1993) (remarks of Sen. Edward Kennedy) (“[W]omen who are pregnant are discriminated
“Historically, denial or curtailment of women’s employment opportunities has been traceable directly to the pervasive presumption that women are mothers first, and workers second. This prevailing ideology about women’s roles has in turn justified discrimination against women when they are mothers or mothers-to-be.” 1989 House Hearing 248 (American Bar Association Background Report). See also Hibbs,538 U. S., at 736 (quoting same language).
“Many pregnant women have been fired when their employer refused to provide an adequate leave of absence,” Congress had ample cause to conclude. See H. R. Rep. No. 99-699, pt. 2, p. 22 (1986). Pregnancy, Congress also found, has a marked impact on women’s earnings. One year after childbirth, mothers’ earnings fell to $1.40 per hour less than those of women who had not given birth. See 1991 Senate Report 28. See also 1989 House Hearing 356-357 (Report of 9to5, National Association of Working Women (citing same study)).
Congress heard evidence tying this pattern of discrimination to the States. A 50-state survey by the Yale Bush Center Infant Care Leave Project concluded that “[t]he proportion and construction of leave policies available to public sector employees differs little from those offered private sector employees.” Hibbs,
B
“[A] state’s refusal to provide pregnancy leave to its employees,” Maryland responds, is “not unconstitutional.” Brief for Respondents 23 (citing Geduldig v. Aiello,
“The dissenting opinion , to the contrary, this case is ... a far cry from cases like Reed v. Reed,404 U. S. 71 (1971), and Frontiero v. Richardson,411 U. S. 677 (1973), involving discrimination based upon gender as such. The California insurance program does not exclude anyone from benefit eligibility because of gender but merely removes one physical condition— pregnancy — from the list of compensable disabilities.*55 While it is true that only women can become pregnant, it does not follow that every legislative classification concerning pregnancy is a sex-based classification ....
“The lack of identity between the excluded disability and gender as such , under this insurance program becomes clear upon the most cursory analysis. The program divides potential recipients into two groups— pregnant women and nonpregnant persons. While the first group is exclusively female, the second includes members of both sexes. The fiscal and actuarial benefits of the program thus accrue to members of both sexes.”417 U. S., at 496-497, n. 20 .
First, “[a]s an abstract statement,” it is “simply false” that “a classification based on pregnancy is gender neutral.” Bray v. Alexandria Women’s Health Clinic,
This reality is well illustrated by the facts of Aiello. The California disability-insurance program at issue granted disability benefits for virtually any conceivable work disability, including those arising from cosmetic surgery, skiing accidents, and alcoholism. See Brief for Equal Employment Opportunity Commission as Amicus Curiae in Aiello, O. T. 1973, No. 73-640, p. 7. It also compensated men for disabilities caused by ailments and procedures that affected men alone: for example, vasectomies, circumcision, and prostatec-tomies. See Brief for American Civil Liberties Union et al.
Second, pregnancy provided a central justification for the historic discrimination against women this Court chronicled in Hibbs. See
In sum, childbearing is not only a biological function unique to women. It is also inextricably intertwined with employers’ “stereotypical views about women’s commitment to work and their value as employees.” Hibbs,
C.
Boerne’s third step requires “‘a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.’ ” Ante, at 36 (quoting
It would make scant sense to provide job-protected leave for a woman to care for a newborn, but not for her recovery from delivery, a miscarriage, or the birth of a stillborn baby. And allowing States to provide no pregnancy-disability leave at all, given that only women can become pregnant, would obviously “exclude far more women than men from the workplace.” Id., at 738.
The plurality’s statement that Congress lacked “widespread evidence of sex discrimination ... in the administration of sick leave,” ante, at 38, misses the point. So too does the plurality’s observation that state employees likely “could take leave for pregnancy-related illnesses” — presumably severe morning sickness, toxemia, etc. — under paid sick-leave plans, ante, at 39. Congress heard evidence that existing sick-leave plans were inadequate to ensure that women were
That § 2612(a)(1)(D) entitles all employees to up to 12 weeks of unpaid, job-protected leave for a serious health condition, rather than singling out pregnancy or childbirth, does not mean that the provision lacks the requisite congruence and proportionality to the identified constitutional violations. As earlier noted, supra, at 50-51, Congress made plain its rationale for the prescription’s broader compass: Congress sought to ward off the unconstitutional discrimination it believed would attend a pregnancy-only leave requirement. Under the caption “Equal protection and nondiscrimination,” Congress explained:
“The FMLA addresses the basic leave needs of all employees. . . . This is an important principle reflected in the bill.
“A law providing special protection to women ..., in addition to being inequitable, runs the risk of causing discriminatory treatment. Employers might be less inclined to hire women .... For example, legislation addressing the needs of pregnant women only might encourage discriminatory hiring practices against women of child bearing age. Legislation addressing the needs of all workers equally does not have this effect. By addressing the serious leave needs of all employees, the FMLA avoids providing employers the temptation to discriminate [against women].
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“The legislation is [thus] based not only on the Commerce Clause, but also on the guarantees of equal protection . . . embodied in the Fourteenth Amendment.”*59 H. R. Rep. No. 102-135, pt. 1, pp. 27-28 (1991) (hereinafter 1991 House Report).
Congress’ concern was solidly grounded in workplace realities. After this Court upheld California’s pregnancy-only leave policy in California 'Fed., Don Butler, President of the Merchants and Manufacturers Association, one of the plaintiffs in that case, told National Public Radio reporter Nina Totenberg that, as a result of the decision, “many employers will be prone to discriminate against women in hiring and hire males instead.” 1987 House Hearing 36. Totenberg replied, “But that is illegal, too” — to which Butler responded, “Well, that is illegal, but try to prove it.” Ibid.
Finally, as in Hibbs, it is important to note the moderate cast of the FMLA, in particular, the considerable limitations Congress placed on §§2612(a)(1)(A)-(D)’s leave requirement. See
III
But even if Aiello senselessly holds sway, and impedes the conclusion that § 2612(a)(1)(D) is an appropriate response to the States’ unconstitutional discrimination against pregnant
Requiring States to provide gender-neutral parental and family-care leave alone, Congress was warned, would promote precisely the type of workplace discrimination Congress sought to reduce. The “pervasive sex-role stereotype that caring for family members is women’s work,” id., at 731, Congress heard, led employers to regard required parental and family-care leave as a woman’s benefit. Carol Ball,
Others similarly testified that mandating gender-neutral parental leave would lead to discrimination against women. A representative of the National Federation of Independent Business stated: “Requiring employers to provide parental leave benefits creates clear pressures for subtle discrimination based on .. . sex. When choosing between two equally qualified candidates, an employer may be more likely to hire the candidate least likely to take the leave. It is the wage levels and jobs of women of childbearing years which are most at risk in such a situation.” Hearing on H. R. 1 before the Subcommittee on Labor-Management Relations of the House Committee on Education and Labor, 103d Cong., 1st Sess., 95 (1993). See also 1989 House Hearing 169 (statement of Cynthia Simpler, American Society for Personnel Administration) (“Since working women will be viewed as the most likely candidates for parental leave, hidden discrimination will occur if this bill becomes law. Women of childbearing age will be viewed as risks, potentially disrupting operations through an untimely leave.”).
Conversely — unlike perceptions surrounding who takes parental and family-care leave — Congress was told that men and women take medical leave approximately equally. According to one study, male workers missed an average of 4.9 days of work per year due to illness or injury; female workers missed 5.1 days. See 1991 House Report, pt. 1, p. 28. “[T]he incidence of serious medical conditions that would be covered by medical leave under the bill,” Congress deter
“In the words of the old song, ‘You can’t have one without the other.’
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“Adoption of parental leave protections without medical leave would . . . encourage discrimination against women of child-bearing age, who constitute approximately 73 percent of all the women in the labor force.
“Employers would tend to hire men, who are much less likely to claim [the parental leave] benefit. . . .
“Parental leave without medical leave would be the modern version of protective labor laws.” 1986 House Hearing 33-34 (statement of Irene Natividad, National Women’s Political Caucus).
Congress therefore had good reason to conclude that the self-care provision — which men no doubt would use — would counter employers’ impressions that the FMLA would otherwise install female leave. Providing for self-care would thus reduce employers’ corresponding incentive to discriminate against women in hiring and promotion. In other words, “[t]he availability of self-care leave to men serves to blunt the force of stereotypes of women as primary caregivers by increasing the odds that men and women will invoke the FMLA’s leave provisions in near-equal numbers.” See Brief for National Partnership for Women & Families et al. as Amici Curiae 26. As Judge Lipez explained:
“If Congress had drawn a line at leave for caring for other family members, there is greater likelihood that the FMLA would have been perceived as further reason to avoid granting employment opportunities to women. Heretofore, women have provided most of the child and elder care, and legislation that focused on these duties*63 could have had a deleterious impact because of the prevalent notion that women take more advantage of such leave policies. The inclusion of personal medical leave in the scheme, unrelated to any need to care for another person, undermines the assumption that women are the only ones taking leave because men, presumably, are as likely as women to get sick.” Laro v. New Hampshire,259 F. 3d 1 , 21 (CA1 2001) (dissenting opinion).
Senator Barbara Boxer advanced a similar point. Responding to assertions that the FMLA would lead employers to discriminate against women, Senator Boxer stated: “[T]o say that women will not be hired by business is a specious argument.... Men also get sick. They get cancer. They get heart disease. They have ailments. And this bill applies to men and women.” 139 Cong. Rec. 1697 (1993). See also 1987 Senate Hearings, pt. 2, p. 536 (statement of Prof. Susan Deller Ross, Georgetown University Law Center) (“I just think it’s wrong that there will be a perception that this is something that only women will take and they are, therefore, more expensive. Both men and women have medical conditions . . . .”).
The plurality therefore gets it wrong in concluding that “[o]nly supposition and conjecture support the contention that the self-care provision is necessary to make the family-care provisions effective.” Ante, at 41. Self-care leave, I would hold, is a key part of Congress’ endeavor to make it feasible for women to work and have families. See 1991 Senate Report 25-26 (“This legislation is essential if the nation is to address the dramatic changes that have occurred in the American workforce in recent years. . . . The once-typical American family, where the father worked for pay and the mother stayed at home with the children, is vanishing. ... Today, more than one-half of all mothers with infants under one year of age work outside the home. That figure has doubled since 1970 .... By the year 2000, about three out of every four American children will have mothers in the
<i
Two additional points. First, this Court reached a different conclusion than the one I reach here in Board of Trustees of Univ. of Ala. v. Garrett,
Finally, the plurality’s opinion does not authorize state employers to violate the FMLA, although it does block injured employees from suing for monetary relief. The self-care provision remains valid Commerce Clause legislation, Maryland concedes, and consequently binds the States, as well as the private sector. Tr. of Oral Arg. 25; Brief for Respond
V
The plurality pays scant attention to the overarching aim of the FMLA: to make it feasible for women to work while sustaining family life. Over the course of eight years, Congress considered the problem of workplace discrimination against women, and devised the FMLA to reduce sex-based inequalities in leave programs. Essential to its design, Congress assiduously avoided a legislative package that, overall, was or would be seen as geared to women only. Congress thereby reduced employers’ incentives to prefer men over women, advanced women’s economic opportunities, and laid the foundation for a more egalitarian relationship at home and at work. The self-care provision is a key part of that endeavor, and, in my view, a valid exercise of congressional power under §5 of the Fourteenth Amendment. I would therefore reverse the judgment of the U. S. Court of Appeals for the Fourth Circuit.
Notes
I remain of the view that Congress can abrogate state sovereign immunity pursuant to its Article I Commerce Clause power. See Seminole Tribe of Fla. v. Florida,
Enacted as an addition to the section defining terms used in Title VII of the Civil Rights Act of 1964, the Pregnancy Discrimination Act of 1978 (PDA) provides: “The terms ‘because of sex’ or ‘on the basis of sex’ include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work_” 92 Stat. 2076,42 U. S. C. § 2000e(k).
Lenhoff advanced The Parental and Disability Act of 1985, introduced by Rep. Patricia Schroeder. See S. Wisensale, Family Leave Policy: The Political Economy of Work and Family in America 136-138 (2001). She was later named Vice Chair of the Commission on Leave, created by the FMLA to study family and medical leave policies. See 29 U. S. C. §§ 2631-2632; U. S. Commission on Family and Medical Leave, A Workable Balance: Report to Congress on Family and Medical Leave Policies 210 (Apr. 30, 1996).
For example, in addition to mandating pregnancy leave, the California statute allowed employers to discriminate against pregnant workers. Employers could refuse to select a pregnant woman for a training program if she would not finish the program at least three months before giving birth. See 1978 Cal. Stats, ch. 1321, §1. The law limited pregnancy-disability leave to six weeks, § 1, and provided that women were to receive paid disability benefits for only three weeks after childbirth, § 2, even if a particular woman remained disabled beyond the three-week period, and even if a man received paid disability benefits throughout his disabil
The medical recovery period for a normal childbirth is four to eight weeks. See Nevada Dept, of Human Resources v. Hibbs,
Notably, the plurality does not cite or discuss Geduldig v. Aiello,
Concurrence Opinion
concurring.
I join the plurality’s opinion holding that Congress did not validly abrogate the States’ immunity from suit for money damages for violations of the self-care provision of the Family and Medical Leave Act of 1993 (FMLA), 29 U. S. C. § 2612(a)(1)(D). As the plurality explains, this case is distinguishable from Nevada Dept. of Human Resources v. Hibbs,