Kimel v. Florida Board of Regents

KIMEL et FLORIDA BOARD OF REGENTS al. v. et al. 11, 2000* Argued January

No. 98-791. October 1999 Decided 98-796, Florida *Together Regents with No. United States v. Board of al., et also on to the certiorari same court.

O’Connor, J., Court, II, I, and IV of opinion delivered the Parts J., Scalia, Kennedy, Rehnquist, which were and joined by C. and Thomas, JJ., Rehnquist, J., and Part III of was C. and which joined Stevens, Scalia, Souter, Breyer, Stevens, J., Ginsburg, JJ. and filed an opinion dissenting in in which Sou- concurring and in part part, ter, Ginsburg, JJ., Thomas, J., an Breyer, and 92. filed joined, post, p. Kennedy, J., in which opinion concurring part dissenting part, joined, post, 99. p.

Jeremiah A. Collins cause for argued petitioners 98-791, No. Rule 12.6 in under this Court’s respondents in No. him on the brief 98-796. With support petitioner Chanin, Arendall, Robert H. Gold, David Laurence were Brooks, Thomas W. and Gerald J. Houlihan. D.

Barbara Underwood the cause for the United argued as States, in 98-796, No. under and petitioner respondent this Court’s Rule 12.6 in of in No. 98-791. support petitioners Waxman, the briefs were Solicitor General Act- With her on ing Attorney Assistant A. Lee, Millett, General Patricia Dunsay Jessica Silver, and Seth M. Galanter.

Jeffrey S. Sutton the cause for state argued respondents Gregory Katsas, G. both cases. With him on the brief were Robert A. Butterworth, Louis General Florida, of Attorney F. Hubener and Beisner, Amelia Assistant Gen Attorneys Pryor, eral, Bill Alice General of Attorney Alabama, and Byrne Ann and Jack Park, Assistant Attorneys General.† †Laurie A McCann and Melvin Radowitz filed brief for the American Association of Retired et al. as amici curiae Persons reversal. urging of amici curiae urging affirmance were Briefs for the State of Ohio filed et al. by Betty D. Montgomery, B. Ohio, Edward General Attorney of of the Court. delivered the Justice O’Connor opinion of 1967 Age Employment Act Discrimination in (ADEA Act), amended, 29 U. S. C. Stat. (1994 seq. III), et for an unlawful Supp. makes it ed. and or to employer, to hire including a “to fail or refuse State, any discharge discriminate individual or otherwise age.” individual’s individual . . because of such . 623(a)(1). plaintiffs C. sets of cases, U.S. In these three money damages for their seeking Act, filed suit under the age. employers’ alleged of on the basis state discrimination the suit employer case, In each to dismiss the state moved immunity. The on the basis of its Eleventh Amendment dismiss, granted the motion District Court one case de remaining District Court of while each cases consoli Appeals were nied the motion. in the three cases Circuit, Appeals before the Eleventh dated of Court abrogate validly which held that the ADEA does not immunity. cases, these we Eleventh States’ Amendment a clear are asked ADEA contains to consider whether the Matthew Solicitor, Solicitor, Foley, Stephen Carney, P. Associate Summers, of Lampke, J. Solicitor, General Paul G. Assistant Attorney Moore, Tennessee, General, and Michael E. Attorneys Solicitor follows: Richard Blumenthal of General for their respective States as Connecticut, M. Jane Thurbert E. Baker of Delaware, Brady Georgia, of J. Idaho, Kansas, Earl I. Anzai of Stoval of Hawaii, Alan G.Lance Carla of M. Maine, Richard P. leyoub of Andrew Ketterer Louisiana, of Jennifer Granholm of Michigan, Mike Moore of P. Mazurek of Mississippi, Joseph Montana, Nevada, Stenberg Papa Don of Frankie Sue Del Nebraska, of Jr., Farmer, Oklahoma, John J. W. A Drew Edmondson of Jersey, of New Hardy Myers of Sheldon D. Michael Fisher Oregon, Pennsylvania, Whitehouse Utah, Graham William H. Sorrell Island, Jan Rhode Vermont, Earley and Mark L. Virginia; Pennsylvania for the House Krill, Representatives, Republican Caucus, by David R. Fine and John P. Jr.; and for the L. Rivett and Frank Robin by Pacific Legal Foundation A Shepherd.

Briefs of amici cwriae were filed for the Coalition for Local Sovereignty Clark; by Kenneth B. Bar- by and for the English Advocates Language ndby W.Zall.

67 abrogate Congress’ Elev statement of intent to States’ immunity and, so, enth if whether the ADEA Amendment authority. proper Congress’ is a exercise constitutional We a clear statement conclude that the ADEA does contain immunity, abrogate but intent States’ § abrogation Congress’ authority that the under 5 exceeded of the Fourteenth Amendment.

hh <q employer an to fail ADEA it for makes unlawful any discharge or refuse or otherwise hire individual or against any respect discriminate to his com individual with pensation, employment, privileges of terms, conditions, or 623(a)(1). § age.” because of such C. individual’s U. S. pro provides exceptions The Act also to this broad several may rely age employer hibition. where example, For an reasonably occupational qualification “is neces bona fide sary operation particular to the normal of the business.” 623(f)(1). § engage permits employer to The Act also an 623(a)(1) §by prohibited in conduct if the em otherwise ployer’s action “is other than based on reasonable factors §623(f)(1), age,” “discharge^] employer or or other if the 623(f)(3). discipline^] wise good an cause,” individual for Although only prohibitions applied originally Act’s forty sixty- individuals years age “at least but less than (1964 years § 631 age,” five ed., Stat. S. U. C. III), Supp. Congress subsequently upper age removed the limit, and age the Act now covers individuals and over, 631(a). Any person U. S. C. aggrieved employer’s an “may violation of the bring Act a civil action court competent jurisdiction” legal equitable relief. §626(c)(1). 626(b) permits aggrieved employ Section also ees to through enforce the provisions Act certain (FLSA), Fair Labor Standards Act of 1938 and the ADEA 68 16(b) §

specifically incorporates FLSA, U. S. C. 216(b). § coverage scope has

Since its ADEA’s enactment, particular expanded by importance been Of amendment. employers and to these eases is the Act’s treatment of state employees. passed applied 1967, ADEA When first in (1964 630(b) § only employers. private 29 U. S. C. See III) “employer” “the Supp. (defining to exclude ed., term corporation wholly by States, United a owned the Gov political or sub States, ernment the United a State or thereof”). consisting primarily division in a statute Congress application FLSA, of amendments to the extended requirements of the ADEA’s to the States. Fair substantive (1974 Act), § 28, of 1974 Labor Standards Amendments by Congress scope accomplished expansion in Stat. 74. simple “employer” a the definition of con amendment to 630(b): § [employer] in also tained “The term U. S. C. political means a ... a or subdivision of State and State any agency political instrumentality sub or of State or a a Congress division amended of a . . also State . .” “employee,” defining ADEA’s definition of the term to still employed any employer,” mean ex “an but individual cluding appointed policymakers elected officials and at the 630(f). § state and Con Act, local levels. In the same 1974 216(b), gress amended 29 the FLSA enforcement U. S. C. provision incorporated by reference into the ADEA. 88 216(b) bring permits Stat. 61. Section now an individual “against any employer (including public a civil action a agency) competent juris Federal or court of 203(x) “[pjublic agency” diction.” Section to include defines government political “the thereof,” a or subdivision of State “any agency political a State, of ... subdivision Finally, pro of a Act, State.” the 1974 added prohibiting age generally employ vision discrimination ment at the Federal 29 U. S. C. Government. Stat. (1994 III). Supp. ADEA, 633a ed. and Under the current mandatory age fire limits for officers and law enforcement fighters exempted federal, state, and local levels—are —at §§ 3307(d), (e); coverage. from the statute’s 5 U. S. C. (1994 III). § 623(j) Supp. U. S. ed., C.

B Marvin In December Roderick MaePherson and ages Narz, 57 and 58 at the filed suit under ADEA time, against University employer, Montevallo, in the their of United States of District Court for the Northern District they complaint, alleged In Alabama. their that the univer sity against had discriminated them on the basis their age, against filing that it had retaliated them for discrimi charges Equal Employment Opportunity nation with (EEOC), College Commission that Business, and its they professors, employed which were associate an evalua system faculty disparate impact tion that on older had declaratory sought members. MaePherson and and Narz injunctive promotions professor, backpay, relief, to full compensatory punitive App. and damages. and 21-25. The University for of Montevallo the suit lack moved dismiss subject jurisdiction, contending barred matter it was by party disputes Eleventh Amendment. the Dis No holding trict university Court’s an instrumental ity of the September 9, 1996, State of On the Dis Alabama. granted university’s trict Court motion. MacPherson University Montevallo, Civ. Action No. 94-AR-2962-S (ND 9, 1996), Sept. App. Ala., 98-796, to Pet. in No. for Cert. pp. although 63a-71a. The that, court determined ADEA contains a clear intent to ab statement rogate immunity, Congress the States’ Eleventh Amendment did not enact or extend the under Fourteenth ADEA its §5 power. Amendment 67a, enforcement 69a-70a. Id., The District Court ADEA did not therefore held that the abrogate immunity. Id., the States’ Eleventh Amendment at 71a. faculty April group and former and 1995, a of current University, including Daniel

librarians of Florida J. today’s petitioner cases, filed Kimel, Jr., the named in one of Regents in the suit the Florida Board of United States District for the District of Florida. Court Northern Complaint Jury 95-CV-40194, Trial in No. Demand subsequently complaint 1 Record, Doe. The was No. 2. faculty plaintiffs amended to current and former add as University. App. 41. librarians of Florida International plaintiffs, age alleged Board all over Florida Regents require state refused to the two universities agreed upon provide previously allocate to market funds adjustments university employees. eligible to the of salaries plaintiffs The the that the failure allocate contended Rights funds violated both the ADEA and the Florida Civil (1997 1998), § 760.01 seq. Supp. Act of 1992, and Fla. Stat. et disparate pay impact because it of em had on base ployees longer were service, with record of most of whom employees. sought App. plaintiffs older The back- 42-45. pay, liquidated damages, salary adjustments permanent and Regents Id., as relief. The moved 46. Florida Board grounds to dismiss the suit on the of Eleventh Amendment immunity. May 17, 1996, On the District denied the Court holding Congress expressed to ab motion, its intent rogate immunity the States' Eleventh Amendment in the proper ADEA, and that the of con ADEA is a exercise gressional authority under the Fourteenth Amendment. (ND Fla.), App. No. TCA 95-40194-MMP to Pet. for Cert. pp. 98-796, No. 57a-62a. May Wellington filed suit his Dickson

employer, Department Corrections, the Florida United States District of District Court for the Northern employer alleged Florida. Dickson that the state failed promote age filed him because of his and he had because grievances respect alleged age with discrimi acts backpay, sought injunctive com relief, nation. Dickson pensatory punitive damages. App. The Flor 83-109. Department ida the suit moved to dismiss Corrections grounds that it Eleventh Amendment. was barred 5, 1996, The November District Court denied that motion on holding Congress unequivocally expressed intent to its immunity abrogate in the Amendment States’ Eleventh authority do and that had so under ADEA, Dept. of the Fourteenth Dickson Florida Amendment. (ND Fla.), App. Corrections, to Pet. for No. 5:96cv207-RH of Cert. in No. pp. 98-796, 72a-76a. plaintiffs de- ease,

The and the state the MacPherson appealed fendants in the to the cases, Kimel and Dickson Appeals Court United for the Eleventh Circuit. The States also intervened three to defend the in all cases abrogation ADEA’s im- Amendment States’ Eleventh munity. appeals Appeals Court consolidated panel opinion, and, in a divided the ADEA held that does abrogate immunity. the States’ Eleventh Amendment (1998). Judge although 3d 1426, Edmondson, F. stating “good that he doubt that believed reason exists to (or pursu- properly) ADEA was could been enacted have ant to the id., his Amendment,” Fourteenth rested opinion language unmistakably on the ADEA’s lack of clear evidencing Congress’ abrogate sover- intent the States’ eign immunity. any Ibid. He noted that ADEA lacks reference to the Eleventh Amendment or to the States’ sovereign immunity place, contain, and not in one does plain by statement that States can sued individuals federal Judge court. Id., at 1430-1431. concurred Cox Judge Edmondson’s ultimate conclusion that the States are immune brought by from ADEA suits individuals in fed- eral Judge court. at Id., Cox, 1444. not however, chose thorny address Congress’s “the intent,” issue of id., but power instead found that lacks the under §5 of the abrogate Fourteenth Amendment to the States’ immunity Eleventh Amendment under the ADEA. Ibid. 72 ex- rights more confers far

He “the ADEA concluded that provides,” Amendment than those the Fourteenth tensive the ADEA as “Congress did not enact id., and that widespread response any violation proportional Judge elderly’s rights.” Id., at 1447. Chief constitutional grounds. Id., at 1434. from both Hatchett dissented (1999), granted to resolve U. 1121 certiorari, We 525 ques among on the Appeals of a conflict Federal Courts validly abrogates Elev the States’ tion whether the ADEA immunity. Compare Cooper v. New York enth Amendment 1998) (CA2 Health, F. 3d 770 State Mental 162 of Office abrogate validly (holding States’ that the ADEA does 98-1524; immunity), pending, cert. No. Eleventh Amendment (CA10 1998)(same), cert. Migneault Peck, 1131 v. 158 F. 3d Coger Regents pending, 98-1178; v. Board No. of of (CA6 1998) (same), pending, Tenn., F. cert. 3d 296 of System, University 150 F. 98-821; No. Keeton v. Nev. of v. (CA9 1998) (same); University Miss., 3d 1055 Scott of (CA5 1998) (same); Goshtasby v. Board 148 F. 3d 493 (CA7 1998)(same), Ill, Trustees Univ. 141 F. 3d 761 Humenansky Regents F. 3d Minn., with Univ. (CA8 1998) validly (holding ab that the ADEA does rogate immunity), cert. the States’ Amendment Eleventh (case (CA11 1998) pending, No. F. 98-1235; 3d below).

II Eleventh Amendment states: power “The not be Judicial of the United shall States equity, construed to law or com- extend to suit in prosecuted against menced or one of the United States by Subjects Citizens of another or Citizens State, any Foreign State.” Although today’s by brought cases concern suits citizens against long their States, own has “‘understood this Court the Eleventh not so much for what it Amendment stand

78 says, presupposition but for . . . which confirms.’” (1996) Seminole Tribe Fla. 517 54 Florida, 44, v. U. S. (quoting Village Noatak, v. Native 501 U. S. Blatchford (1991)). Accordingly, century 775, now, a for over we provide have made clear that the for Constitution does not jurisdiction against nonconsenting federal over suits States. CollegeSavings Postsecondary Prepaid v. Bank Florida Ed. (1999); Expense Bd., 527 Tribe, U. S. 669-670 Seminole (1890). supra, 54; Louisiana, see Hans v. 134 U. 151,S. Petitioners nevertheless contend that the States Alabama present and Florida must defend the suits on the merits be- Congress abrogated cause Eleventh im- their Amendment munity in petitioners the ADEA. To determine whether predicate are questions: correct, we must resolve first, two Congress unequivocally expressed whether its intent to ab- rogate immunity; if it second, did, whether pursuant authority. acted grant to a valid of constitutional supra, Tribe, Seminole at 55.

II I subjects properly To determine whether a federal statute by apply “simple States to suits individuals, we but strin gent ‘Congress may abrogate test: the States’ constitution ally immunity only by secured from in federal court suit making unmistakably language its intention clear in ” (1989) the statute.’ Muth, Dellmuth v. (quoting Hospital Atascadero Scanlon, U. S. (1985)). agree petitioners 234, 242 We with ADEA that the provisions satisfies that test. The ADEA states that its powers, “shall be enforced in accordance remedies, with the 211(b), procedures provided (except in sections (a) thereof), subsection title, and 217 of this and subsection (c) 626(b). 216(b), of this section.” U. S. C. Section clearly provides turn, for suits individuals States. provision employees That authorizes to maintain actions for backpay “against any employer (including public agency) any competent jurisdiction...

in or State court of Federal “public agency” concerning identity de- Any of the doubt §203(x), § 216(b) looking dispelled in fendant named a government of “the defines the term to include which “any agency political thereof,” and or subdivision political a Read a of State.” State, or subdivision of... clearly plain provisions language as a of these whole, subject to suit Congress’ intent to the States demonstrates employees. money damages for at the hands of individual statutory Respondents are that sections maintain these “unmistakably Brief less than clear” for two reasons. already they Respondents ADEA 15. that the First, note 626(c)(1), § provision, which its contains own enforcement “[a]ny aggrieved provides part person that in relevant jurisdiction for bring competent court civil action legal purposes equitable such relief will effectuate chapter.” Respondents existence of this claim 626(c)(1) § incorporate the clear renders intent to 216(b), § abrogation enforcement statement of the FLSA’s provision, ambiguous. re- The text of the ADEA forecloses 626(b) spondents’ argument. clearly that the states Section powers, ADEA with the “shall be enforced in accordance 216(b)] procedures [section provided and remedies, and added). (c) 626(b) § (emphasis subsection section.” this statutory explained language, In accord with that we have 626(b) repeatedly incorporates enforce- the FLSA’s operate provisions, options to- ment and remedial that those 626(c)(1). gether Banner with v. Nashville See McKennon (“[The (1995) ADEA’s] Publishing Co., re- 352, 513 U. S. provisions incorporate by provisions medial reference the 1938”); Fair Roche Labor Standards Act Hoffmann-La (1989)(“[T]he Sperling, Inc. v. in- ADEA corporates provisions of the Fair Labor Stand- enforcement provides be en- ards Act that the ADEA shall procedures using powers, remedies, forced certain of (citation omitted)); Pons, 434 U. S. FLSA” Lorillard (“[B]ut (1978) changes Congress expressly- 575, 582 for those [in folly incorporate to made ADEA], intended FLSA”). procedures Respondents’ remedies and of the ar- gument attempts ambiguity according where, to create repeated interpretations the statute’s text and this Court’s thereof, there is none.

Respondents point phrase competent next to the “court jurisdiction” 216(b), Congress’ and contend that it makes abrogate Relying intent to less than clear. decision our sovereign in the distinct im context state waiver of munity, Copper Corp. Comm’n, Kennecott v. State Tax (1946), respondents perhaps U. maintain that Con gress simply against permit intended to an ADEA suit only previously in those cases where the State has immunity its waived Eleventh We dis Amendment to suit. agree. Copper Our decision in Kennecott read in must be petitioner context. The there that Utah had contended immunity waived its Eleventh Amendment to suit in federal through taxpayers court a state statute that authorized pay protest bring their taxes under an “‘thereafter any jurisdiction action in competent court of the return thereof (quoting Id., ....’” n. 1 Utah Code Ann. § 80-5-76 (1943)). Although undoubtedly pro the statute against vided for suit courts, the State of Utah in its own we required held that the statute fell short of the “clear declaration a State of its consent to be sued in the fed added). (emphasis eral courts.” 327 at S., U. 579-580 Sec 216(b) tion ambiguity. contains no such author statute employee against izes suits States “in Federal or State 216(b) added). competent jurisdiction.” court (emphasis language That ambiguity eliminates the in Ken- identified Copper necott permit Utah intended suits —whether sovereign only, in state court or in state and §216(b), federal question court. Under answer to that clear—actions be maintained in federal and state court. language sufficiently That choice of in indicates Amend abrogate Eleventh tent, ADEA, in the States’ immunity by individuals. ment to suits opinion that Although in his concedes Justice Thomas Congress required its clear make have never our cases statutory provisions single or in in a section statement (opinion post, concur- at 104-105 time, at the same enacted that the dissenting part), he concludes ring part and clarity “sequence requisite because ADEA lacks the surrounding and amendment the enactment of events” 216(b) 626(b), §§ states post, at 102. Justice Thomas unwilling amended that when that he is to assume 216(b) § consequences recognized that amend- in respectfully Ibid. ment ADEA. We would have for the disagree. Congress the ADEA itself The amended fact that Congress that it more than clear in the same 1974Act makes Con- consequences Indeed, understood the of its actions. 216(b) § provide against gress for suits States amended precisely the ADEA’s Act in which it extended in same Act, requirements See 1974 substantive to the States. 28(a), §216(b)); § § 6(d)(1), (amending 88 Stat. 74 Stat. States). provisions confirm (extending Those ADEA to the 216(b) § amend- ADEA of the for us that the effect on the any happenstance. event, we have ment was not mere grada- Congress speak with different never held that must clarity depending specific circumstances tions of (e. amending incorporated provi- legislation g., the relevant time). enacting a for the first opposed statute sions Congress did inquiry on what clear statement focuses ambiguity from not infer enact, not when it so. We will did sequence is added in which textual statement a clear a statute. remaining points, disagree

We also with Justice Thomas’ post, Although contain its the ADEA does see at 105-109. 626(b) § 626(c)(1), § provision the text of in own enforcement §626(c)(1)’s acknowledges clear that and makes existence 216(b), § incorporates indicated save as the ADEA also 626(b)’s 626(b) (“The § § proviso. provi otherwise in See chapter sions in of this shall enforced accordance with the powers, procedures provided seetiofn] . remedies, in . . (c) (a) thereof)... (except for subsection and subsection added)). (emphasis this section” We see how the fail to interpretation suggested by which under Thomas, Justice 626(b) 216(b) § § carry only would “embellish over those 626(c)(1) § already provided except ments” for in against post, States, authorization of suits see could permissible accept interpretation, be a To that for ex one. ample, one would have to conclude that intended 216(b)’s § incorporate only portion third sentence provides part that actions, for collective but not the very against same sentence authorizes suits States. 216(b) (“An liability prescribed See action to recover the preceding either of the sentences be maintained any employer (including public agency) Federal or competent jurisdiction by any State court of one or more employees for and behalf of himself themselves situated”). employees similarly other 216(b) also itself fails concludes Justice Thomas the clear Post, statement have test. at 108-109. As we already explained, presence “competent” of the word 216(b) § provision does not that “un render less than mistakably supra, clear.” See at 75-76. Justice Thomas’ single phrase Employees reliance aon from our decision Dept. Depart Public Health and Mo. v. of Welfare of Mo., ment Public S. 279 Health and U. Welfare (1973), post, contrary support proposi see at 108, as for the puzzling, given respect separate argument tion to his with 6(d)(2)(A) § of the 1974 Act. Crucial to Justice Thomas’ argument acknowledgment Congress on that front is his that plain did permit intend in the 1974 to amendments “FLSA by tiffs who had been frustrated state invocation defendants’ immunity Employees Eleventh to Amendment avail under 216(b).” § newly themselves of Post, 103; amended at implication of post, agree see also at 108-109. We with clearly Congress response Employees, In that statement: to 216(b)” abrogate through newly intended “the amended immunity. light conclu sovereign of our States’ Congress expressed unequivocally its intent sion that immunity, abrogate we Amendment the States’ Eleventh Congress that effectuated now must whether determine abrogation pursuant exercise of constitutional a valid authority.

IV A constitu This is considered the not first time we have validity to state tional the ADEA extension governments. Wyoming, and local 460 U. In EEOC (1983), a valid 226, 243 the ADEA constitutes we held that Congress’ regulate “[t]o . . power exercise of . Commerce among the Act and that States,” I, § 8, 3, the several Art. cl. transgress any imposed did external restraints power we Because commerce the Tenth Amendment. Clause Commerce found ADEA valid under power, unnecessary we to determine concluded that it was by Congress’ power supported whether the Act also could under 5 of 460 U. at 243. S., the Fourteenth Amendment. dissenting). (Burger, id., But Resolu J., see 259-263 C. question. today’s requires tion of cases us decide power Congress Tribe, In Seminole we lacks held immunity. abrogate sovereign under Article I to the States’ vests in 72-73. “Even when the Constitution lawmaking authority particular complete over a congressional prevents area, the au- Eleventh Amendment uneonsenting by private parties against thorization of suits Id., at in a three Term, States.” 72. Last series of deci- holding sions, we reaffirmed that central of Seminole Tribe. CollegeSavings Prepaid See Bank, S., 672; 527 U. at Florida Savings Postsecondary Expense College Bank, Ed. Bd.

79 (1999); Maine, 706, 527 (1999). 636 712 U. S. Alden v. 527 U. S. College Savings Indeed, Bank, in our de- we rested cision to overrule the constructive waiver rule of Parden v. (1964), Dept., Terminal R. Co. Ala. 377 S. 184 in Docks U. part, holding. College Savings on our Seminole Tribe See congressional supra, (“Recognizing power Bank, at 683 sovereign immunity through exact constructive waivers powers practical also, the exercise of Article I as a would permit Congress antiabrogation matter, to circumvent Tribe’’). holding firmly of Seminole our established Under precedent solely then, if the ADEA rests Ar- I power, petitioners today’s ticle private commerce in cases cannot their their maintain suits state employers. disputes prece that well-established

Justice Stevens again. Compare dent post, p. (opinion dissenting part 92 in concurring part), supra, p. Alden, in with (Souter, College dissenting); Savings J., Bank, S., at 692, U. n. dissenting); J., id., J., at 699-705 dis (Stevens, (Breyer, senting); Prepaid, supra, Florida at J., 664-665 (Stevens, dissenting); Tribe, Seminole at 76-100 (Stevens, dissenting); dissenting). J., id., at J., 100-185 (Souter, explained sovereign Alden, we “[although that, immu nity of the States part derives at from the least common- history law tradition, structure and the Constitution immunity today by make clear that the exists constitutional design.” today’s purposes at S., U. 733. For deci sion, it is sufficient note that we have than one on more explained adhering occasion the substantial reasons for design. College 712-754; constitutional id., See at Savings supra, Bank, 669-670, 687-691; Tribe, Seminole supra, Pennsylvania 54-55, Co., 59-73; v. Union Gas (1989) concurring part U. S. 30-42 J., dis (Scalia, senting part). present Indeed, dissenters’ refusal accept validity import Hans, and natural like decisions century ago by rendered over a Court, Ml this it dif- makes 80 meaningful engage place to in on the

fieult additional debate immunity Compare sovereign of in state the Constitution. post, J., at 97 Hans, 10, 14-16, at with U. (Stevens, concurring Today dissenting part part). in in we adhere Congress’ powers holding under Tribe: to our Seminole power I the to sub Article of the Constitution do include ject private individuals. to suit at hands of States the does however, Amendment, 5 of the Fourteenth

Section abrogate grant Congress authority the States’ sov- to ereign immunity. Fitzpatrick Bitzer, 427 U. v. (1976), recognized Amendment, and “the Eleventh we principle sovereignty are embodies, of which state §5 necessarily provisions of of limited the enforcement omitted). (citation at Id., Fourteenth Amendment.” Fitzpatrick, we have reaffirmed the Since our decision in validity power congressional occasions. on-numerous of Savings supra, g., College 670;Florida Pre- See, Bank, e. at paid, supra, supra, 756; 636-637; Alden, Seminole private petitioners supra, Accordingly, the Tribe, at 59. these cases maintain suits their ADEA only if, if, of ADEA States Alabama and Florida appropriate legislation under 5.

B part: provides, in relevant Fourteenth Amendment any or enforce “Section 1. ... No State shall make abridge privileges law which shall or immunities de- States; citizens United nor shall prive any person liberty, property, life, without due juris- process deny any person its law; nor within equal protection diction the laws.” power Congress enforce, have “Section 5. The shall by appropriate legislation, provisions article.” of this City Flores, recognized recently As we most Boerne (1997),§5 grant power 521 S. is an affirmative U. Congress. “It is for in the first instance ‘determin[e] legislation what is needed to se- whether and guarantees cure the Fourteenth and Amendment/ Id., its at 536 conclusions are entitled much deference.” to (1966)). Morgan, (quoting Katzenbach 384 U. S. power legis- to is not confined the enactment wording merely parrots precise lation that the of the Four- Congress’ power teenth Rather, Amendment. “to enforce” authority remedy the to Amendment includes the both and rights by pro- guaranteed to deter violation of thereunder hibiting including conduct, somewhat broader swath of that which is not itself forbidden the Amendment’s text. at 518. recognized Nevertheless, we the same have also that language grant that for the serves as basis affirmative congressional power power. also limit that For serves to example, Congress cannot “decree the of the Four- substance teenth Amendment’s restrictions on the ... It has States. given power power been ‘to de- enforce,’ to termine Id., what constitutes a violation.” constitutional added). (emphases interpretation at 519 and The ultimate determination of the Fourteenth Amendment’s substantive meaning province remains Id., the Judicial Branch. City at 536. In Boerne, that determina- we noted purportedly prophylactic legislation tion whether constitutes appropriate legislation, remedial or instead effects sub- stantive right redefinition of the Amendment at Fourteenth issue, is often Id., difficult. at 519-520. The line between the two is a Accordingly, recognizing fine one. that “Con- gress [that determining must have wide latitude in where line] lies,” “[t]here we congruence held that must be a and proportionality injury prevented between the be or reme- adopted died and the Id., means that end.” at 520. City “congruence applied pro- Boerne, we that portionality” Religious test and held that Freedom (RFRA) legis- Restoration appropriate Act of 1993 was not legislative lation 5. under We first noted record very contained little evidence of the conduct unconstitutional provisions. purportedly targeted by substantive RFRA’s only evidence” Rather, uncovered “anecdotal had “widespread pattern standing that, alone, did not reveal a country.” religious Id., this 5S1. discrimination in proportion to a Second, we found RFRA is “so out of object supposed preventive that it or cannot remedial designed prevent, responsive un- to, understood as Id., constitutional behavior.” 582. “congru- again apply Term,

Last we had occasion Prepaid, proportionality” we ence In Florida test. validity Amendment abro- considered the of the Eleventh Variety gation provision Protection in the Patent and Plant Act). (Patent Remedy Remedy We held Clarification Act infringe- subjected patent that statute, which States legislation appropriate suits, ment under 5 of the was not Remedy Fourteenth Act failed to Amendment. The Patent congruence proportionality meet our test because and first “Congress by pattern infringement patent identified no of pattern States, a violations.” let alone constitutional added). (emphasis Moreover, at 640 because unlikely many infringement patent was that of the acts of any being affected the statute had unconsti- likelihood scope tutional, out we concluded of the Act was proportion preventive objectives. supposed to its remedial or “[t]he apparent Id., Instead, at and more basic 647. statute’s infringe- provide remedy patent aims were to uniform private par- place footing ment and to States on the same regime.” Id., ties ac- under that at 647-648. While we knowledged congressional proper that such aims concerns insufficient to I, under Article we found them support abrogation an Eleventh Amendment of the States’ immunity supra, Prepaid, after Seminole Tribe. Florida at 648.

C Applying “congruence proportionality” test the same and “appro- cases, these we ADEA is not conclude that the priate legislation” under 5 of the Fourteenth Amendment. Initially, imposes requirements ADEA substantive governments disproportionate on state local are any conceivably tar- unconstitutional could be conduct geted by the Act. We claims of unconstitu- have considered age Equal tional discrimination under the Protection Clause (1991); Gregory three times. See v. 501 U. S. Ashcroft, (1979); Bradley, Vance Bd. U. S. 93 Massachusetts curiam). (1976) Murgia, (per Retirement v. U. 307 age In all three cases, we held that the at issue classifications Gregory, Equal did violate the Protection See Clause. supra, Bradley, supra, 473; 108-112; at 102-103, n. Murgia, supra, Age govern- unlike 317. classifications, gender, mental char- conduct based on race cannot be acterized as “so seldom relevant to the achievement of legitimate grounded state in such con- interest that laws antipathy.” siderations prejudice are deemed reflect Living Center, Inc., Cleburne v. Cleburne 473 U. S. (1985). again, persons, Older dis- unlike those who suffer gender, crimination on the have not been basis race or subjected “‘history purposeful unequal treatment.’” Murgia, supra, (quoting Independent at 313 San Antonio (1973)). Rodriguez, School age Dist. v. 1, 411 U. 28 S. Old also does minority not define a discrete and insular because persons, they all spans, if live out their life will ex- normal perience it. Accordingly, 427 at rec- S., U. 313-314. as we ognized Murgia, Bradley, Gregory, age a is not sus- pect Equal classification under the See, Protection Clause. g., Gregory, supra, Bradley, supra, Murgia, e. at 470; at 97; supra, at 313-314. may

States age discriminate on the of- basis without fending the age Fourteenth Amendment if the classification question rationally legitimate related a state interest. rationality by Equal commanded Protection Clause require does age not to match States distinctions and legitimate they precision. interests As serve with razorlike conducting basis review explained, when rational we have action] unless [government “we will overturn not such varying groups persons or is so un treatment of different any legitimate to the combination of related achievement only [government’s] purposes that we can conclude that Bradley, supra, 97. In con actions were irrational.” a trast, on the basis race when State discriminates discriminatory gender, require tighter fit between the we legitimate g., they Ada See, serve. e. means and ends (1995) 200, Peña, Constructors, rand Inc. v. 515 U. S. (“[Racial] only they if are classifications are constitutional govern narrowly compelling tailored measures that further interests”); Hogan, Mississippi v. mental Univ. Women for (1982) (holding gender U. S. classifications they gov only “‘important are if serve constitutional discriminatory objectives means ernmental . . . employed’ ‘substantially are to the achievement related (citation omitted)). objectives’” Under the Four of those rely age proxy teenth as a Amendment, State qualities, other or characteristics that are relevant abilities, legitimate to the State’s The Constitution does interests. preclude age generalizations. reliance on such That proves proxy individual case is be an inaccurate “[W]here rationality irrelevant. test, is the a State ‘does Equal merely not violate the because the Protection Clause Murgia, by imperfect.’” classifications made its laws are supra, (quoting Dandridge at 316 Williams, (1970)). Finally, age pre because an classification is sumptively challenging rational, the individual its constitu tionality proving bears the on which burden the “facts reasonably apparently classification is based could not governmental conceived be true decisionmaker.” Bradley, supra, supra, Gregory, see 111; at 473. Bradley, Gregory Murgia,

Our decisions illustrate principles. these In all three we held that the States’ eases, generalizations age respect reliance did on broad with Equal Murgia, up- not violate the we Protection Clause. equal protection challenge held an a Massachusetts age requiring police at 50. statute state officers to retire justified ground age provision that on preparedness physical classification assured the State of the Although its S., officers. 427 at we acknowl- U. 314-315. edged Murgia physical that Officer himself was in excellent perform police health and a could still the duties of state clearly require- we officer, found that the statute met the Equal ments of the at Id., 314-317. Protection Clause. pre- “That the not to determine fitness more State chooses cisely through [does testing age after not individualized prove] objective assuring physical fitness is not rationally by maximum-age at Id., furthered a limitation.” Bradley, equal protection 316. In we an chal- considered lenge a requiring Foreign to federal statute Service officers age age to retire explained: increasing brings at 60. We “If increasing physical with it susceptibility difficulties, . . . may Foreign employees fact that individual Service perform past statute] age [the able to 60 does not invalidate compulsory more than did the truth undercut similar age Murgia.” police retirement at 50 for state uniformed Finally, Gregory, upheld provision S.,U. at 108. we required judges Missouri to retire Constitution that age Noting provision 70. that the was based Missouri generalization ability age about the effect of old on the acknowledged judges, of individuals to serve as we “[i]t significant judges is far from true that suffer de- all performance “[i]t age probably terioration in not 70,” “[i]t true that most do,” be true at all.” 501 age U. at 473. because Missouri’s classifi- Nevertheless, subject only cation was held that review, rational basis we generalizations State’s imperfect reliance on was such entirely proper Equal under the Ibid. Protection Clause. constitutionality These decisions thus that the demonstrate age of state classifications on the be deter- basis of cannot per- person-by-person mined on a basis. Our Constitution they age have mits States to draw lines on the basis of when doing it level, even if a rational at a class-based basis for so probably are valid in the “is not true’' reasons that those majority of cases. juris-

Judged against protection equal backdrop our prudence, proportion it is clear ADEA is “so out that the object supposed to a preventive that it cannot remedial or prevent, un- responsive designed be understood as to to, or Boerne, 521 U. 532. City constitutional behavior.” age through The on the use Act, its broad restriction substantially discriminating prohibits more state factor, likely employment practices be than would decisions protection, applicable equal held under the unconstitutional unlawful, in rational standard. The ADEA makes basis “diseriminat[ion] employment in- context, all age.” . . 29 U. S. C. dividual . because of such individual’s 623(a)(1). § relying exceptions, Act’s Petitioners, on the dispute protections to the extent which the ADEA erects beyond requirements. They contend that Constitution’s prohibition, together excep- the Act’s with its considered applies only arbitrary age discrimination, which tions, majority corresponds violates of cases to conduct that Equal disagree. Protection Clause. We 623(f)(1). Petitioners on That section stake their claim permits employers rely age when “is bona fide on occupational qualification necessary reasonably to the nor- operation particular mal re- business.” Petitioners’ (BFOQ) qualification” liance occupational on the fide “bona 623(f)(1) misplaced. interpretation defense is Our (1985), Western Air Lines, Criswell, Inc. v. S. 400 conclusively cry ais far from demonstrates that the defense age apply the rational basis discrimination standard we Equal petitioner under the in that Protection Clause. em- pursuant that, defense, ease to the maintained BFOQ ployers rely age permitted such reliance must when rejected Id., has We a “rational fact.” 417. basis adopted argument, explaining “[t]he standard that BFOQ necessity,’ not in the statute is one of reason- ‘reasonable the ableness,” id., at that the ADEA standard and 419, and “significantly id., at 421. different,” rational test are basis defense, the ADEA, Under the even with its BFOQ age prima use 29 U. S. C. State’s is facie unlawful. See (“Under §623(a)(1); S., at 422 Lines, Air 472 U. Western employers employees their Act, are to evaluate ... on age”). Application of the Act there- merits not their requiring the em- presumption fore starts with a favor of ployer to an See ibid. make individualized determination. Lines, defense, Western Air we concluded that the BFOQ which shifts the the individual em- focus from the merits of ployee necessity age whole, is to the for the as classification exception extremely general “‘meant to be an narrow prohibition’ age the ADEA.” discrimination contained in (citation omitted). Id., at 412 on based that conclusion We pro- language statutory both the restrictive BFOQ regulation interpreting vision itself and the that ex- EEOC’s 1625.6(a) (1998) (“It ception. anticipated See is CFR concept that this scope aof will have limited [BFOQ] application. exception Further, as this an to the Act it is construed”). narrowly must be To succeed under the BFOQ defense, employer we held that an must demonstrate either “a believing nearly substantial for basis all em- all or ployees age qualifications required above an lack the for the position,” age or that reliance on the classification neces- sary highly impractical employer because “it is for the by insure testing employees individual that its will have necessary qualifications job.” for at 422- added). 423-(emphases Measured the rational basis standard equal protection jurisprudence, our the ADEA plainly imposes substantially higher on burdens state em- ployers. although Thus, it is true existence prohibition defense makes age BFOQ ADEA’s dis- require- crimination less than Act’ssubstantive absolute, the heightened ments akin our nevertheless remain a level scrutiny Equal eases under the Protection Clause. place reliance on the next clause

Petitioners also some §623(f)(1), permits employers engage in conduct which prohibited differentiation otherwise the Act “where the age.” ex is based on This reasonable factors other than ception disproves, the con confirms, however, rather than beyond the re protection clusion that the ADEA’s extends quirements exception Equal Clause. The Protection age employer rely “[t]he simply cannot makes clear that proxy remaining employee’s characteristics, such an productivity, as factors must focus on those but instead directly.” 611 Paper Biggins, U. Hazen Co. v. 507 S. (1993). rely Constitution, contrast, Under the States in age Gregory, proxy other characteristics. See (generalization ability S., 501 U. at to serve as 473 about 70); judges age Bradley, S., 108-109, at 440 at U. 112 (generalization ability Foreign about to officer at serve as Service 60); age Murgia, (generalization S., about at 314-317 50). ability age police to serve as officer at Section state 623(f)(1), merely Congress, through the then, confirms that effectively analyzing ADEA, has elevated the standard for age scrutiny. heightened discrimination to prohibits likely very

That the little to be ADEA conduct significant, pro held not alone unconstitutional, while does § inquiry. vide the answer to our 5 Difficult and intractable problems require powerful often and we have remedies, §5 enacting precludes Congress never held that from rea sonably prophylactic legislation. determine Our task is to just appropriate whether the such an rem ADEA is fact edy substantively merely attempt or, instead, redefine an to legal respect obligations age to discrimi States’ with by nation. One have such a deter means which we made legislative past by examining record mination g., containing Congress’ See, e. Flor the reasons for action.

89 Prepaid, City Boerne, ida S., 640-647; 527 at 521 U. U. at “The of remedial measures 530-531. appropriateness must be considered evil Strong light presented. be an unwar measures address one harm may appropriate Id., another, ranted lesser 530 one.” response (citing Katzenbach, South Carolina (1966)). 301, 308 383 U. S. Our examination of record con- the ADEA’s legislative firms 1974 extension of the Act to States was an to a unwarranted response perhaps inconsequential never identified dis- problem. any age pattern States, crimination much less discrimination by whatsoever that rose level constitutional violation. such, The evidence to demonstrate by compiled petitioners attention discrimination the States by Congress age falls well short of the mark. That consists almost evidence of isolated sentences debates from floor entirely clipped e.g., 93-846, 112 See, legislative S. No. reports. Rep. p. (1974); S. No. 56 H. 93- 93-690, (1974); R. No. p. Rep. Rep. (1974); (1973); 40-41 57 Senate 93-300, No. pp. p. Rep. Committee on Discrimi- Special Age Aging, Improving (Comm. Law, nation 93d Sess., 1973); 1st Print Cong., id., (1967) (remarks Rec. Cong. of Rep. Steiger); (remarks Donohue); 110 Rec. Rep. Cong. (remarks id., (1964) (remarks of of Smathers); Sen. at id., (remarks Beekworth). Sen. at 2596 of Sparkman); Rep. The statements of Senator Bentsen on the floor the Senate are indicative of the of the evidence relied on by strength g., e. See, (1972) Rec. 24397 petitioners. Cong. (stating that “there is evidence that discrimination is ample age broadly but practiced government relying employment,” id., on articles about federal at 7745 newspaper employees); (“Letters from own have my State revealed State and local have also governments been of discrimination guilty ibid. (“[Tjhere toward older are indica- employees”); strong tions that the and hiring firing practices governmental ...”). units discriminate the elderly consid on Petitioners additional reliance Congress’ place California eration of a 1966 the State of prepared by report See discrimination in its Hearings public agencies. age on Labor of on H. et the R. 3651 al. before Subcommittee the House of on Education Committee Representatives (1967) 90th Labor, Sess., (Hearings) 1st 161-201 Cong., pp. Commit California, State Citizens’ Advisory (reprinting (1966)). tee on Public Discrimination in Agencies Aging, Age from the Like assorted cobble sentences together petitioners debates, a and floor decade’s worth congressional reports had en the the California does not indicate that State study unconstitutional fact, discrimination. gaged age limits un stated report age majority in the law enforce covered state in the survey applied Those 168. ment Hearings firefighting occupations. law limits were not under California permitted age only ibid., under time, see are but also currently permitted ADEA. See U. C. 3307(d), (e); §§ C. 623(j) U. S. (1994 III). had un ed., Even if the California Supp. report covered a discrimination unconstitutional pattern age time, the State’s nevertheless would public agencies have been insufficient 1974 extension support of the ADEA to sim of the Union. The every report does not constitute age “evidence that ply [unconstitutional had of national become import.” discrimination] problem Prepaid, supra, Florida at 641. found the United that Congress States’

Finally, argument age sector, substantial see Brief discrimination in private for United made States beside point. no such we with to the States. Although findings respect also make have doubts whether did the findings Congress with to the sector could extrapolated respect private of unconstitutional discrimination in support finding age these eases to note that sector, is sufficient for public dis- failed to pattern age Congress identify widespread by Prepaid, crimination the States. Florida See at 640. legislative as a whole,

A review of the ADEA’s record virtually be Congress reason to then, reveals that no had governments lieve that and local were unconstitution state ally discriminating against employees on the basis of their age. Although support determinative of that lack of is not § inquiry, City supra, 531-532, id., the 5 at 646; of Boerne, any significant pattern un failure uncover Congress constitutional discrimination here confirms legislation reason to prophylactic had no believe that broad necessary light indiscriminate was in this field. scope requirements, and the lack Act’s substantive widespread age evidence of and discrimi unconstitutional by nation not a States, we hold that the ADEA is §5 Congress’ power valid exercise of under Four abrogation teenth purported Amendment. The ADEA’s sovereign immunity accordingly States’ invalid. D today signal Our decision of the line for does not the end employees subject age who find themselves discrimina only tion at employers. the hands of their state We hold abrogate that, in validly ADEA, did sovereign immunity by States’ private suits individuals. employees protected age State are state discrimination money damages statutes, and recover their state from employers, every in almost Those of the Union.* ave *See Alaska (1998); Stat. Ann. 18.80.010 et Ariz. Rev. Stat. seq. Ann. § 41-1401 (1999); et §§ 21-3-201, 21-3-203 seq. (1996); Code Ark. Ann. Cal. (West § 12900 Govt. Code 1999); Ann. seq. et and Colo. Rev. Supp. § 24-34-301 Stat. seq. (1998); (1999); § 46a-51 et Conn. Gen. Stat. et seq. Ann., Del. § 710 1998); Code Tit. §§ 112.044, et (Supp. Fla. Stat. seq. (1997 (1990 760.01 et seq. 1998 Supp.); seq. Ga. Code Ann. 45 — 19—21et (1993 1996); § 378-1 Supp. Haw. Rev. Stat. and Cum. seq. Supp. et 1998); § 67-5901 (1995 Idaho Code 1999); Stat., seq. et and Supp. Comp. Ill. 775, § 5/1-101 ch. (1998); (1993); § 22-9-2-1 et seq. bid. et Iowa seq. Code nues of were before relief remain available they today, just this decision. the States’

Because ABEA does validly abrogate must be dis- however, suits sovereign present immunity, missed. Court Appeals Accordingly, judgment is affirmed. is so ordered.

It Justice Stevens, Souter, Justice with whom Justice Breyer and and Ginsburg, Justice part join, dissenting concurring part. in- the American economy regulate

Congress’ power cludes the both the and power regulate public private (1994 1999); § 216.1 § 44-1111 seq. Code et Kan. Stat. Ann. et seq. and Supp. (1993 (Michie § 344.010 1998); et and Cum. Ann. Supp. Ky. seq. Rev. Stat. (West 1998); id., 1998); § 23:311 1997 and Supp. seq. La. Rev. Stat. Ann. et (West § 51:2231 Ann., 5, § 4551 1999); seq. et Tit. et seq. Me. Rev. Stat. Supp. (1998-1999 (1998 49B, Code, § 1 and Supp. Md. Ann. et Supp.); seq. Art. (1997 1999); § Supp.); Comp. Mass. Gen. Laws 151:1 et and 1997 Mich. seq. (West § 363.01 1999); § 37.2101 Laws et Stat. seq. 1985 and Minn. Supp. (1991 (1991); 1999); § 25-9-149 et Mo. Rev. seq. Supp. and Miss. Code Ann. (1994 § 213.010 § 1998); Ann. seq. Stat. et Cum. Mont. Code Supp. and (1997); (1998); § 48-1001 49-1-101et Stat. seq. Neb. et Nev. Rev. seq. Rev. Stat. (1995 § 613.310 (1995); § 354-A:1 et H. and seq. seq. N. Rev. Stat. Ann. et (West 1998); §§ Supp. 10:3-1, 10:5-1 Supp. N. et 1993 and seq. J. Stat. Ann. 1999); § 290 (1996); § 28-1-1 N. M. Y. Exec. Law et seq. Stat. Ann. et N. seq. (1999); 1999); § (McKinney Supp. seq. 1993 and N. C. Gen. 126-16 et Stat. (1997 1999); § Ohio Rev. Supp. N. D. Cent. Code 14-02.4-01 and seq. et (1991 (1998); Stat., § 4112.01 § 1101 Code Ann. et Tit. et seq. seq. Okla. 1999); (1997); § and Ore. Rev. Stat. et 43 Pa. Cons. Stat. Supp. seq. 659.010 (1995 (1991 § 951 § 28-5-1 1999); seq. et seq. and R. Gen. Laws et Supp. I. (1986 1997); and C. et and Cum. Supp. seq. Supp. Code 1-13-10 Ann. 1998); (1998); § 4-21-101 Lab. Ann. seq. Tenn. Code Ann. et Tex. Code (1996 § 21.001 1999); § 34A-5-101 seq. et seq. et and Utah Code Ann. Supp. (1987 1999); 1999); 21, § 495 Va. Ann., Vt. Stat. et (Supp. seq. Supp. Tit. (1995 1999); § 2.1-116.10 Rev. Code Ann. Wash. Code seq. Supp. et (1999); § 49.60.010 (1994); § 5-11-1 Stat. et Wis. seq. seq. et W. Va. Code (West 1998); § 111.01 Wyo. Ann. Stat. Ann. Supp. et 1997 and seq. (1999). 27-9-101et seq. outlawing dis-

sectors the labor market. Federal rules wages regulation workplace, crimination in the like the safety and be enforced standards, hours health and public my opinion, against private employers. as well as against power to state authorize federal remedies statutory obligations agencies is coexten- that violate federal obligations power impose on the States sive with its those place. nor in the Eleventh first Neither the Amendment immunity sovereign places any the doctrine of on that limit power. 517 U. Florida, 44, See Seminole Tribe Fla. v. S. of (1996) dissenting); Wyoming, 165-168 EEOC (Souter, J., (1983) concurring). U. 247-248 (Stevens, J., application judge-made The of of the ancient doctrine sovereign immunity supposedly justi- cases like these authority, fied a freestanding congressional as a limit limit on necessary protect “dignity respect” im- States’ from by pairment the The Framers did National Government. not, however, select the Branch as the constitu- Judicial guardian Rather, tional of Fram- those interests. the state designed important safeguards ers to ensure that structural when the National enacted law Government substantive (and enforcement), provided operation for its the normal legislative of the process adequately defend itself would state infringement. generally interests from undue See Safeguards Wechsler, The Political of The Role Federalism: of Composition the States in the of the Na- and Selection (1954). tional Government, Rev. 543 Colum. L. compromise giving equal It is the Framers’ each representation principal provides in the the Senate that protection sovereignty structural of the several for the composition originally States. The was deter- Senate by legislatures mined guaran- of States, which would tee Congress.1 by their ignored interests could be 1961) (J. Madison) (C. (“The

1The Federalist No. p. Rossiter ed. State governments may be of parts as constituent and essential regarded the federal government.... he absolutely The Senate will elected composed The directed that the House Framers also Representatives States, voters in the several selected strategic consequence is that “the states are the of which yardsticks opinion, the of interest and measurement geographical special activity, separate political centers politics.” Id., at well local determinants national as 546. Congress passes it does so statute,

Whenever already propriety background place; of state law by the taking metric national action is thus measured supple- existing seeks to state norms justifica- supplant.2 persuasiveness ment or taking overcoming legislative tion national for inertia and obligations providing creating action, either new federal necessarily judged for be in refer- enforcement, their must existing expressed ence in state laws. to state as interests, scope shaped precise can laws, course, The of be of federal Congress The with attention to state interests. nuanced authority jurisdiction grant in also has the to or withhold being haled into a lower federal The burden of courts. thus, federal of can law, forum for enforcement federal expanded Congress proper, or contracted deems which legislative necessarily contem- acts, like all other decision, plates its broad state interests. can use Thus, range legislative approach of tools to the delicate flexible of how in the issue to balance local and national interests Thus, existence exclusively by the State will owe its legislatures.... [it] consequently more or of governments, less to the favor and must too disposition feel a to a dependence, likely beget which is much more them”). than too obsequious overbearing towards Act When in Congress expanded Age Employment Discrimination (ADEA) in all 50 States had employers, 1974 to apply public law, some not extend their age form of discrimination but 24 of them did 1a-25a. own laws to Brief for public employers. App. Respondents See evident, and It is most careful manner.3 responsive quite as the the Framers did not view this Court therefore, ultimate in their of the interest States’ guardian protecting federal own from “burdensome” by sovereignty impairment laws.4

3Thus, majority’s the present simply aggrandize view does more than limits for power Congress’ options Judicial Branch. It also responding precise with attention to state interests when it takes national therefore, view, action. majority’s plan does not bolster Framers’ Rather, fundamentally structural interests. safeguards state Breyer Indeed, at odds with that as Justice has for plan. explained, bidding the federal private remedies necessitate the enlargement bureaucracy and make it more “to decentralize de- governmental difficult communities, citizens, cisionmaking provide with individual or local variety powers.” enforcement Bank v. Florida Pre College Savings (1999) Bd., paid Expense 666, 705 (dissenting Ed. Postsecondary U. S. (1997) opinion); States, see also Printz v. 976-978 United J., (Breyer, dissenting). law,

4 The President also role the enactment federal plays provided Framers likewise in safeguards protect structural state terests in the selection of the choose the President. The electors who President are appointed by legislatures. a manner the state directed II, 1,§ Art. cl. 2. a majority And if their vote for of electors do cast one person, then the by Representatives. President is chosen House “But chusing manner, President” this the Constitution directs States, that “the Votes shall be taken the from each by Representatives §1, added); State having II, one Vote.” Art. cl. 3 see also (emphasis Amdt. 12.

Moreover, the Constitution state in other certainly protects interests ways well, as V, as in of provisions IV, the My Articles and VII. concern here, however, by is with the respect safeguarded for state the interests ordinary legislative process. The balance between national and local in- see, terests in reflected other provisions vary, g., constitutional e. U.S. may Limits, Thornton, Term (1995), Inc. v. 514 U. S. 779 but insofar as Con- gress’ legislative concerned, authority is the relevant constitutional provi- sions were crafted to ensure the itself accounted process adequately for local interests.

I also recognize that plays the Judicial Branch a role in limit- sometimes ing product so, the of legislative the process. may It do for example, when the exercise of legislative authority against runs some other con- up Congress appropriate for

Federalism concerns do make it speak clearly regulates to when when it state action. But safely presume so, does as it has in we can cases,5 these sovereignty imposes that the the on the of burdens statute during the account the delib several States were taken into process leading to the enactment measure. erative defending necessarily Those the cost of burdens include against pen proceedings paying whatever enforcement and my violating might alties In be incurred for statute. judgment, question proceed whether those enforcement agencies, ings exclusively by should be conducted federal by private brought parties a matter of well, policy Congress event, to either once Con decide. gress policy sovereignty has its concerns choice, made several are federal interest satisfied, States explicitly endorsed law, evenhanded enforcement of federal fur Constitution, Article VI of the does not countenance ther limitations. There is not in the text of the Con a word judge- supporting stitution the Court’s conclusion that sovereign immunity Congress’ power made doctrine of limits private parties, agencies, to authorize as well as federal importance enforce federal law the States. The respecting assign the Framers’ the business decision lawmaking Congress to the resistance to the dictates firm present majority’s repeated substitution of its own views expressed federalism for enacted those in statutes Congress signed by the President. Florida, 517 U.

stitutional Seminole Tribe Fla. command. See (1996) instances, (Souter, J., 166-167 courts dissenting). But those are not constitu- wholly unrelated crafting judge-made doctrines text, necessity they solely tional nor under the doing guise are so of safeguarding state interests. clearly subject Because States expressed has its intention ADEA, opinion to I Part III private join suits under the parties of the Court.

97 support simply does not Eleventh Amendment before, Court’s view. As has stated the Amendment been only places diversity jurisdiction textual limitation on Hospital of the federal courts. See Atascadero State v. (1985)(Brennan, Scanlon, J., 473 dissent U. S. 286-289 ing). part Constitution, Because the Amendment is a of the diversity I on have never how its limitation understood jurisdiction of federal eourts Article III could defined “abrogated” by Congress. Tribe, an Act Seminole pri dissenting). Here, U. at 93 (Stevens, however, J., petitioners diversity vate did not courts’ invoke the federal jurisdiction; they are as de citizens of same State they asserting fendants and are claims that arise under today’s (relying federal Thus, law. as it does on decision Tribe) entirely judicial interpre Seminole rests a novel sovereign immunity,6 of the tation doctrine of which the though Court precept. treats as It it were a constitutional is power nevertheless clear to me that if has the rights to create the petitioners federal that these are assert ing, it power give must also have the to the federal eourts jurisdiction remedy rights, violations of those even if necessary “abrogate” Amendment” the Court’s “Eleventh immunity sovereign version of the common-lawdefense of do so. That holding is the in Penn essence Court’s sylvania (1989). v. Union Co., Gas 1, 13-23 U. S.

I correctly remain convinced that Union Gas was decided and the decision of five Tribe to Justices Seminole overrule profoundly misguided. Despite my that case was respect unwilling accept decisis, stare amI Seminole controlling Tribe precedent. First foremost, reasoning opinion of that profoundly is so mistaken so view, Under the traditional immunity rec sovereign defense was ognized only as a matter of comity when asserted in the courts of an other sovereign, rather than aas limitation on the of that jurisdiction See Schooner (1812) forum. McFaddon, Exchange v. Cranch Hall, (Marshall, J.); (1979). G. Nevada 410, 414-418 440 U. S. conception fundamentally with of inconsistent the Framers’ any claim the the constitutional order that it has forsaken respect of this Court. usual deference owed decisions decisis, con has less force in area of furthermore, Stare g., See, e. & stitutional law. Burnet v. Coronado Oil Gas (1932) (Brandeis, dissenting). Co., J., 285 U. S. 406-410 pretense a hollow instance, And this is but refuge protection of reliance to seek in stare decisis’ credibly It that a State’s interests. cannot be maintained liability ordering respect potential of its affairs with requires Tribe, federal under law adherence Seminole open liability upon enforce as that decision leaves a State’s agencies. of law Nor can State ment federal federal promoting “the find solace in the of stare decisis interest legal princi development evenhanded . .. and consistent (1991). Payne ples.” Tennessee, v. 501 827 That U. S. rely sovereign principle perverted when invoked to immunity as a violations settled defense to deliberate un federal law. Tribe is a case that will Further, Seminole questionably in eases; in future have serious ramifications already effect, it has had such as in the Court’s deed, an misguided opinion today equally of Alden decision (1999). still, Maine, v. 527 U. 706 Further the Seminole S. unnecessarily decision to resolve Tribe forces Court vexing questions respecting law of constitutional §5 authority. overruling Finally, by repeated own its precedent, majority im earlier has itself discounted portance The kind stare decisis in this area of the law.7 judicial Tribe, activism in cases like Seminole manifested

7See, College Savings Postsecondary Bank Florida v. e.g., Prepaid Bd., Ed. v. Terminal R. Expense Parden S., (overruling 675-683 Tribe, (1964)); Co. Ala. Docks Seminole U. Dept. 377 U. S. 517 184 Co., (1989)); (overruling Pennsylvania Union Gas U. at 63-73 v. Halderman, Pennhurst 89, 127, Hospital State School and U. S. v. (1984) (“[T]he (Stevens, J., least repudiates 132-137 Court dissenting) cases, century jurisprudence”). well over a of this Court’s spanning Postsecondary Prepaid v. Ed. Ex Maine, Alden Florida (1999), College Savings pense Bd. 527 U. S. 627 Bank, Postsecondary Savings College Prepaid Bank Florida Ed. v. (1999), Expense represents a Bd., 527 U. such radical S. departure it proper from the of this Court that should role opposed opportunity whenever the arises.

Accordingly, respectfully I dissent. Kennedy Justice Thomas, with whom Justice joins, and concurring part dissenting part. Hospital Scanlon, Atascadero 473 U. S. 234 State v.

(1985), cognizant impact abrogation this of Court, an of immunity the States’ Eleventh from suit Amendment federal court on between “the usual constitutional balance the States and the Federal reaffirmed that Government,” by “Congress may abrogate only making intention . . its . unmistakably language Id., clear in the of statute.” legislature 242. This rule has in fact “‘assures that the bring faced, and intended to into critical matters issue, the ” judicial Michigan Dept. involved in v. decision.’ Will (1989)(quoting Police, States United of (1971)). especially appli Bass, 404 U. S. 336, 349 And is Age cable when this Court like the Dis deals with statute (ADEA), Employment crimination in Act of 1967 whose sub janitors, operators, stantive mandates extend to “elevator security guards, charwomen, and the like in secretaries, every building hierarchy.” governmental office in a State’s Employees Dept. Mo. v. Public Health and of Welfare Department Mo., Public Health and 411 U. S. Welfare (1973). Because think that has not I “unmistakably abrogate made its intention to in the clear” text respectfully I ADEA, dissent from Part III opinion.1 Court’s I, II,

1 I concur agree in Parts IV I of the Court’s because opinion that the immu purported abrogation of the Amendment States’ Eleventh nity in the § ADEA falls power. outside 5 enforcement

I by inquiry begin ex- It is natural to the clear statement amining provisions the four corners within those that reside govern- petitioners question. and the of the Aet in Private correctly pro- ADEA’s ment substantive observe that employers, 29 U. S. C. see extend to States visions 628(a) § “[i]t unlawful for an em- (providing shall be practices); discriminatory ployer” engage age in certain 680(b) § political (defining “employer” to include “a State or 630(f) State”); (defining “employee” as “an subdivision of a employed any employer”), ADEA that the individual “ag- right-of-aetion provision for establishes an individual 626(c)(1) persons, person aggrieved grieved” (“Any see bring any jurisdiction competent a civil aetion of in court legal purposes equitable such will effectuate the or relief as chapter”). employee, Since, of this state in the case a only possible State, the it is submitted that defendant is Congress clearly employee expressed a its intent that state 626(c)(1) § may qualify “person aggrieved” a under bring employer suit his in federal court. state argument logical appeal, may

While the have some squarely explains by precedent—which foreclosed reasoning finding employ Court’s decision a to different in Employees, statement, clear see we con ante, at 73. In pre-1974 fronted the version the Fair Standards Labor (FLSA), clearly Act of 1938 which substantive extended as a employers, followingprivate matter to state and included the right-of-aetion provision: ¿ability “‘Action to recover such ” any jurisdiction.’ competent be maintained in court of 216(b) (1970 § Employees, supra, at (quoting 29 U. S. C. ed.)). language We held that this fell short of a clear state Congress’ abrogate. ment intent to The FLSA’s substan coverage employers meaning tive given of state could be through by Secretary Labor, enforcement which would raise no 285-286, Eleventh U. issue, Amendment Congress pursuit and we were “reluctant to in believe that a so of harmonious to treat federalism desired States harshly’’ by abrogating immu their Eleventh Amendment nity, g., id., Muth, 491 S. also, 286. e. Dellmuth v. U. See (1989)(holding clearly 223, 228 not stated had abrogate “parties its intent authorized in a statute that aggrieved any ‘bring ... a court civil action ... competent jurisdiction the United or in district court of ”) controversy5 (quot regard States without amount 1415(e)(2)(1982ed.)). ing 20 U. S. C.

The ADEA is no different the version of from FLSA Employees. we unquestionably examined in It extends as employers, substantive matter to state but does mention right-of-action “Any provision: person aggrieved States its may bring jurisdic- competent a civil action in court of legal equitable tion for such relief as will effectuate 626(e)(1). purposes chapter.” pro- of this 29 U. S. C. This simply vision does not attention to reveal augmented liability sovereignty and diminished concomitant abrogation an immunity. “Con- Eleventh Amendment gress, acting responsibly, presumed would not be to take such silently.” supra, action Employees, at 284-285.

II Perhaps recognizing posed Employees, the obstacle private petitioners contend that the the Government incorporates ADEA a clear from the statement FLSA. The incorporating ADEA’s has con- reference, which remained provides: stant since the 1967, enactment of the ADEA in provisions chapter “The of this shall be enforced in ac- powers, procedures pro- cordance with the remedies, (a) 211(b), vided in (except sections for subsection thereof), (c) and 217 of this title, this and subsection sec- 626(b). 216(b)—one § § tion.” 29 argued U. S. C. It is that incorporated provisions FLSA—unequivo- from the cally abrogates immunity the States’ from suit in federal “[a]n court. That section part states in relevant that action prescribed preceding liability to recover the in either of the (includ- any employer sentences be maintained ing public ageney) compe- any Federal or court 216(b). § jurisdiction.” 29 tent U. S. C. Employees,

But, as noted in the above discussion of 216(b) § always time the ADEA was not so worded. At the 216(b)— § relatively sparse was enacted in version of abrogate Employees which held insufficient States’ “[ajction immunity provided such liabil- that an to recover — jurisdic- ity may competent be maintained in court of (1964 ed.). 216(b) § not until 1974 tion.” 29 U. It was S. C. 216(b) § Congress to its that modified current formulation. (1974 Fair Amend- Labor Standards Amendments of 1974 § ments), 6(d)(1),88 Stat. 61. suggests, my sequence view,

This of events that we approach circumspection any theory of “clear should with by incorporation.” Congress an statement Where amends provisions incorporated by Act Acts, whose are other necessarily bill under consideration does not mention the incorporating Acts, references those other and so fails to inspire Congress confidence the con- that has deliberated on sequences is the of the amendment for the other Acts. That 6(d)(1) § 216(b), § legislation ease here. The that amended 626(b). § acknowledge the 1974 even Amendments, did not “ given purpose 'as- And, the clear statement rule to sur[e] legislature that the has in faced’” the issue of fact abrogation, (quoting Will, Bass, S., at 65 404 U. 349), unwilling Congress, indulge I am fiction that §216(b), consequences recognized for a when amended (the ADEA) separate incorporates Act the amended provision. sure,

To be 28 of did Amendments, the 1974 88 Stat. modify provisions suggest might certain of the ADEA, which 6(d)(1) impact on the understood the §6(d)(2)(A), ante, another of the ADEA. See at 76. But opposite. suggests just 1974 Amendments, the Section

103 6(d)(2)(A) provision added to statute of of limitations (d), FLSA, 29 §255, U. S. C. new subsection which sus- pended running statutory periods of the of limitation on 16(b) “any brought cause of action under section 216(b)]... § April [FLSA, 29 18,1973,” U. S. C. before Employees the date decided, was until “one hundred and days eighty [the after the effective Amend- date ments].” purpose not this new subsection—revealed by only Employees its decided, reference to date was by exception “judgment but also its for actions in which grounds has been entered for the defendant on the other immunity jurisdiction” than State to from Federal —was plaintiffs allow FLSA who had frustrated state been immunity defendants’ invocation of Eleventh Amendment Employees newly under to avail themselves of the amended 216(b).2 § appears, It however, was oblivious 6(d)(2)(A) § impact to the on the The new ADEA. § §7(e) 255(d), by operation of C. ADEA, U. S. 626(e)(1988 ed.) § (“Sectio[n] apply 255 ... of this title shall automatically chapter”),3 part actions under this became 255(d) § yet of the ADEA in 1974. And the new have could possible application no because, the ADEA the Court 28(a) Amendments), § (citing observes, ante, at 76 of the 1974 apply ADEA’s substantive did not even mandates the States until the Thus, 1974, 1974 Amendments. before

2That Congress had purpose this in mind as to the FLSA does not mean § product that the as a 216(b) qualifies efforts- —the amended — 216(b)’s § clear description statement. The amended “any of the forum as competent 216(b) § Federal... court (emphasis jurisdiction,” 29 U. S. C. added), is ambiguous “competent” insofar as federal court not be might infra, unless the My state defendant to suit. at 108-109. consents See 216(b) § point that, present simply even the amended assuming qualifies statement, as a clear contemplate the 1974 Congress likely did 216(b) impact of the new on the ADEA. 3The ADEA was ref incorporating amended remove § 115, erence. See Civil Act of U. S. C. Rights Stat. 626(e). be could there were no ADEA suits States that §255(d)’s Congress tolling provision. had affected If recognized problem, likely would this “overinclusiveness” 626(e) §§255(a)-(c). § only incorporate Cf. have amended to 626(b) § proce- (incorporating powers, remedies, and “the (a) sectiojn]... provided (except dures subsection added)). thereof”) (emphasis Congress did do But since not Congress clearly focus so, are left to conclude that did not we 6(d)(2)(A) § impact Congress’ on the And on of ADEA. 6(d)(2)(A) § sug- impact respect insouciance with similarly gests Congress impact that was inattentive to the 6(d)(1). §of 6(d)(2)(A) 6(d)(1) §

Insofar as is closer to in terms of purpose implication space draw §28, than is I would 6(d)(2)(A) certainly outweighs the inference from almost §28. any event, the notion the Court would draw from §28 of the 1974 Amendments evidences every might ripple awareness of last amendments those permissible inference, cause in is at not the ADEA best necessary unequivocal “the which before declaration is ... Congress we to exercise its will determine that intended powers abrogation.” Dellmuth, at 232. general my ap- critique a more Court advances proach, explaining that “we have held that never speak depending gradations clarity must with different specific legislation of the . . . .” circumstances relevant descriptive Ante, I observation, at 76. But with which hardly agree, probative light fact “clear that a by incorporation” argument not to date been statement has presented acknowledge previous I that our this Court. appear required within cases have a clear statement single Pennsylvania section or subsection an Act. (1989), on other Co., Gas S. 7-10 Union U. overruled grounds, Florida, 517 U. Seminole Tribe Fla. v. (1996); (confirming clear statement in id., see also at 56-57 statutory by looking provisions in other one subsection subsection). separate required have our eases that such Nor passed sections or subsections of an Act at the same time. (consulting original supra, Union Gas, 7-13, and n. provisions Response, Comprehensive Environmental Liability Compensation, and Act of 1980 and 1986 amend- Act). accepting ments to that even to be But, Union Gas correctly I decided, do not think the where Con- situation gress analogous incorporated amends an provision is setting, Union Gas. where the later Union Gas Con- gress actually amends the is Act, earlier enacted reason- able to assume that the later focused each provisions, the various whether old, new or combine express abrogate. an intent to

r-H h-Í H clarifying incorporated provi- Even if a amendment to an might provide sion abrogate sometimes a clear statement purposes for provision incorpo- of the Act which the into 626(b) § rated, this is not such First, a case for two reasons. 216(b) § clearly does not incorporate part that estab- private right employers. lishes a against Second, action 626(b) 216(b) § § assuming entirety, even incorporates in its 216(b) § “unmistakably expres- itself falls short of an clear” sion of abrogate intent to the States’ Eleventh Amendment immunity from suit in federal court.

A 626(b) § dispute I do not incorporates the ADEA into 216(b). § provisions some open But it seems to me at least 626(b) § portion debate incorporates whether 216(b) § private right that creates an action, individual for already private the ADEA right-of-aetion contains its own 626(c)(1). provision § See Banner McKennon Nashville — (1995) (“The Publishing Co., ADEA . . . contains a vital Title and the element found in both VII injured employee Fair grants Labor Standards a Act: It an right of relief. U. S. C. action to obtain authorized §626(c)”); Employment Dis- Grossman, 1 B. Lindemann & P. (3d 1996)(“The grants ADEA crimination 573-574 ed. Law any equitable aggrieved person right legal to sue (citing purposes of the Act” relief that will effectuate the (footnote omitted)). 626(c)(1)) § right-of-action While the 626(c) 216(b) §§ identically provisions phrased, are 626(e)(1) may (“Any person bring civil compare aggrieved jurisdiction legal competent for such court of action purposes equitable of this relief as will effectuate the or chapter”), 216(b) (“An liability recover the with action to preceding prescribed be main- in either of the sentences (including agency) any employer public tained ..”), any jurisdiction competent Federal or court of . they certainly are similar in function. §216(b)’sprivate right-of-action provision were

Indeed, if 626(b) § incorporated by plain- and hence to ADEA available 626(c)(1) § right analogous tiffs, the of action established wholly problem superfluous interpretive the would —an pause acknowledge. Court does not To avoid the even overlap, might an exclusive one read ADEA create § 626(e)(1), private right action and then to add various embellishments, § ADEA, see whether from elsewhere in

626(c)(2)(trial by jury), incorporated parts of or from the ibid, (collective (attor- 216(b) actions); §g., FLSA, see, e. ibid, fees); ney’s (liquidated damages).4 interpretation Of an ADEA course Court’s —that 626(e)(1) 216(b) § § plaintiff may the basis for choose private right plausible. his of action—is also “But such permissible logical force, would re- inference, whatever its just permissible main that: a It would not be inference. necessary unequivocal is before we declaration which... Congress powers will determine to exercise its that intended expressly remedy The ADEA this “cases of vio limits last -willful Pons, 575, see Lorillard 626(b); lations.” 29 U.S.C. 434 U.S. (1978). abrogation.” Apparently at 232. Dellmuth, 491 U. cognizant extrinsic evi- of this resorts to rule, the Court (“‘[T]he prior e.g., at 74 See, ante, dence: our decisions. incorporates provisions ADEA of the Fair enforcement provides that the ADEA Labor Standards Act of powers, using shall be enforced remedies, certain of (alteration procedures original)) (quoting of the FLSA’” Sperling, Roche Inc. v. U.S. Hoffmann-La (1989) (citations omitted)). especially judicial opinions, But question, subsequent those issued to the enactments bearing Congress clearly have no stated its on whether has abrogate could intent to How in the text of the statute. they, given legislative history antedates least —which - judicial the enactments under to a review—is “irrelevant inquiry abrogate into intended to whether supra, Eleventh 230. In Dellmuth, Amendment”? present event, Roche, which did not Hoffmann-La question immunity,5 of a State’s Amendment Eleventh perfectly incorpo- consistent with the view the ADEA only pro- overlapping rates FLSA, “extras” from the incorpo- visions. Roche involved the ADEA’s Hoffmann-La actions, ration of the FLSA’s authorization of collective which §216(b)’s provision, private right-of-action individual follows 216(b) (“An liability see prescribed action to recover the in may either of the preceding be maintained sentences against any employer any (including public agency) a in Fed- competent by any eral or jurisdiction State court of one 5 §216(b)’s That the Roche im Court did consider Hoffmann-La plications for the apparent Eleventh Amendment clear statement rule is § from its quotation selective a the words 216(b) omitting “(including — (“This public agency).” See 493 U. at 167-168 centers controversy states, around provisions one the ADEA which incorporates, pertinent part, that an 'may any action be maintained against employer... in any Federal or competent jurisdiction by any State court of one or more employees for and in behalf of himself employees or themselves and other (alteration § 216(b) similarly situated’” 29 U.S. C. original)) (quoting (1982 ed.)).

108 employees or them- or more for and in behalf of himself similarly employees (emphasis selves and other situated” added)), overlap may falling and so as outside the be viewed above.6 described

B 626(b) §216(b)’s § right- incorporates individual Even if provision, provision of “un- itself falls short of-aetion that clarity for suit mistakable” insofar as it describes forum jurisdiction.” “any competent court of Federal State added). 216(b) § (emphasis federal For it be that a “competent” Amendment court is not under the Eleventh adjudicate by private suit a State unless a a citizen explained Em- As we State consents to the suit. “[t]he ployees, history Amend- the Eleventh tradition of a federal court ment indicate that reason of that barrier competent judgment against a noncon- is not to render added). senting (emphasis 284 The S., at State.” 411 U. ability distinguish suggests, ante, 76-77, Court at that its Cop- single (discussing precedent, Kennecott ante, a at 75-76 (1946)), per Corp. illumi- Comm’n, v. Tax U. S. 216(b). § ac- aspect nates But neither this the Court knowledges say point Employees this nor what had to 216(b)’s § clarity explains why rel- it follows modern from the 216(b) 216(b) § is clear to the old ative the modern satisfy enough rule, as an absolute matter to the Atascadero requires clarity. which “unmistakable” say clear That as a whole is not to that the FLSA lacks 255(d) abrogate. statement of intent to Section ante, relies, 74-75 two see upon other cases which Court Co., (citing McKennon v. U. Publishing Nashville Banner Pons, (1995), and Lorillard 582), supra, are also consistent with FLSA, view that the ADEA not over incorporates only “extras” from provisions. we whether ADEA lapping neither case did consider 216(b) incorporates action part private “against creates of com in Federal State court employer (including public agency) petent jurisdiction.”

109 216(b). 255(d), § ambiguity the elucidates within Section running suspended will recalled, of the statute of 216(b) § brought against a limitations on actions under political April State or (the subdivision on or before decided) Employees date until hundred was “one eighty days [1974 after the Amend- effective date of except suspension applicable ments], not be such shall judgment if in such action has been entered for the defend- grounds immunity ant on the other than Federal from 255(d) added). § jurisdiction.” explained (emphasis As I 255(d) § only apply Part II,7 face however, does on its only FLSA, but failure to amend 626(e) § general incorporation ADEA’s S. C. §255, (1988ed.), strongly suggests paid scant atten- 255(d) § impact Accordingly, upon tion to the the ADEA. 255(d) § accept clarifying I cannot the notion that furnishes 216(b) § guidance interpreting purposes, for ADEA what- 216(b) § ever might provide assistance it to a construction of purposes.8 for FLSA respectfully

For reasons, these I Part III of dissent from opinion. the Court’s Supra, 101-105. §255 While §7(e), once incorporated by ADEA, was 81 Stat. see §626(e) (1988

605, 29 ed.), U.S. C. the ADEA was amended remove the reference, 1991, 115, § incorporating Civil Act of Rights see 1079, 29 626(e). 255(d) § § Stat. U. S. C. The current “unavailability” for ADEA Court, purposes perhaps explains why purports which form, ante, only examine statute in rely its current does not 1255(d). But, 255(d) I have without sheds on explained, light 216(b) 1216(b), falls short of a clear of Congress’ statement intent abrogate.

Case Details

Case Name: Kimel v. Florida Board of Regents

Court Name: Supreme Court of the United States

Date Published: Jan 12, 2000

Citation: 528 U.S. 62

Docket Number: 98-791

Court Abbreviation: SCOTUS