KIMEL et al. v. FLORIDA BOARD OF REGENTS et al.

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62 OCTOBER TERM, 1999
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KIMEL et al. v. FLORIDA BOARD OF REGENTS et al.
certiorari to the united states court of appeals for
the eleventh circuit
No. 98–791. Argued October 13, 1999—Decided January 11, 2000*
The Age Discrimination in Employment Act of 1967 (ADEA or Act),
as amended, makes it unlawful for an employer, including a State, “to
fail or refuse to hire or to discharge any individual or otherwise dis-
criminate against any individual . . . because of such individual’s age.”
29 U. S. C. § 623(a)(1). Petitioners, three sets of plaintiffs, filed suit
under the ADEA against respondents, their state employers. Petition-
ers’ suits sought money damages for respondents’ alleged discrimina-
tion on the basis of age. Respondents in all three cases moved to dis-
miss the suits on the basis of the Eleventh Amendment. The District
Court in one case granted the motion to dismiss, while in each of the
remaining cases the District Court denied the motion. All three de-
cisions were appealed and consolidated before the Eleventh Circuit.
Petitioner United States intervened on appeal to defend the consti-
tutionality of the ADEA’s abrogation of the States’ Eleventh Amend-
ment immunity. In a divided panel opinion, the Eleventh Circuit held
that the ADEA does not abrogate the States’ Eleventh Amendment
immunity.
Held: Although the ADEA does contain a clear statement of Congress’
intent to abrogate the States’ immunity, that abrogation exceeded Con-
gress’ authority under § 5 of the Fourteenth Amendment. Pp. 72–92.
(a) The ADEA satisfies the simple but stringent test this Court uses
to determine whether a federal statute properly subjects States to suits
by individuals: Congress made its intention to abrogate the States’ im-
munity unmistakably clear in the language of the statute. Dellmuth v.
Muth, 491 U. S. 223, 228. The ADEA states that its provisions “shall
be enforced in accordance with the powers, remedies, and procedures
provided in sections 211(b), 216 (except for subsection (a) thereof), and
217 of this title, and subsection (c) of this section.” 29 U. S. C. § 626(b).
Section 216(b), in turn, authorizes employees to maintain actions for
backpay “against any employer (including a public agency) in any Fed-
eral or State court of competent jurisdiction . . . .” Section 203(x) de-
fines “public agency” to include “the government of a State or political
*Together with No. 98–796, United States v. Florida Board of Regents
et al., also on certiorari to the same court.

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subdivision thereof,” and “any agency of . . . a State, or a political sub-
division of a State.” The text of § 626(b) forecloses respondents’ claim
that the existence of an enforcement provision in the ADEA itself
renders Congress’ intent to incorporate § 216(b)’s clear statement of
abrogation ambiguous. Congress’ use of the phrase “court of compe-
tent jurisdiction” in § 216(b) also does not render its intent to abrogate
less than clear. Finally, because the clear statement inquiry focuses on
what Congress did enact, not when it did so, the Court will not infer
ambiguity from the sequence in which a clear textual statement is added
to a statute. Pp. 73–78.
(b) This Court held in EEOC v. Wyoming, 460 U. S. 226, 243, that the
ADEA constitutes a valid exercise of Congress’ Article I Commerce
Clause power. Congress’ powers under Article I, however, do not in-
clude the power to subject States to suit at the hands of private indi-
viduals. Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 72–73. Sec-
tion 5 of the Fourteenth Amendment does grant Congress the authority
to abrogate the States’ sovereign immunity. Fitzpatrick v. Bitzer, 427
U. S. 445, 456. Pp. 78–80.
(c) Section 5 of the Fourteenth Amendment is an affirmative grant of
power to Congress. City of Boerne v. Flores, 521 U. S. 507, 517. That
power includes the authority both to remedy and to deter the violation
of rights guaranteed thereunder by prohibiting a somewhat broader
swath of conduct, including that which is not itself forbidden by the
Amendment’s text. Congress cannot, however, decree the substance
of the Fourteenth Amendment’s restrictions on the States. Id., at 519.
The ultimate interpretation and determination of the Amendment’s
substantive meaning remains the province of the Judicial Branch. This
Court has held that for remedial legislation to be appropriate under § 5,
“[t]here must be a congruence and proportionality between the injury
to be prevented or remedied and the means adopted to that end.” Id.,
at 520. Pp. 80–82.
(d) The ADEA is not “appropriate legislation” under § 5 of the Four-
teenth Amendment. The ADEA’s purported abrogation of the States’
sovereign immunity is accordingly invalid. Pp. 82–91.
(1) The substantive requirements the ADEA imposes on state
and local governments are disproportionate to any unconstitutional con-
duct that conceivably could be targeted by the Act. Age is not a sus-
pect classification under the Equal Protection Clause. See, e. g., Greg-
ory v. Ashcroft, 501 U. S. 452, 470. States therefore may discriminate
on the basis of age without offending the Fourteenth Amendment if the
age classification in question is rationally related to a legitimate state
interest. The rationality commanded by the Equal Protection Clause
does not require States to match age distinctions and the legitimate

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64 KIMEL v. FLORIDA BD. OF REGENTS
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interests they serve with razorlike precision. Rather, a State may rely
on age as a proxy for other qualities, abilities, or characteristics that
are relevant to the State’s legitimate interests. That age proves to be
an inaccurate proxy in any individual case is irrelevant. Judged against
the backdrop of this Court’s equal protection jurisprudence, it is clear
that the ADEA is “so out of proportion to a supposed remedial or pre-
ventive object that it cannot be understood as responsive to, or designed
to prevent, unconstitutional behavior.” City of Boerne, supra, at 532.
The Act, through its broad restriction on the use of age as a discrimi-
nating factor, prohibits substantially more state employment decisions
and practices than would likely be held unconstitutional under the appli-
cable equal protection, rational basis standard. Petitioners’ reliance on
the “bona fide occupational qualification” defense of § 623(f)(1) is mis-
placed. This Court’s decision in Western Air Lines, Inc. v. Criswell,
472 U. S. 400, conclusively demonstrates that the defense is a far cry
from the rational basis standard the Court applies to age discrimination
under the Equal Protection Clause. Although it is true that the exist-
ence of the defense makes the ADEA’s prohibition of age discrimination
less than absolute, the Act’s substantive requirements nevertheless
remain at a level akin to the Court’s heightened scrutiny cases under
the Equal Protection Clause. The exception in § 623(f)(1) that permits
employers to engage in conduct otherwise prohibited by the Act “where
the differentiation is based on reasonable factors other than age” con-
firms, rather than disproves, the conclusion that the ADEA extends be-
yond the requirements of the Equal Protection Clause. That exception
makes clear that the employer cannot rely on age as a proxy for an
employee’s characteristics, Hazen Paper Co. v. Biggins, 507 U. S. 604,
611, whereas the Constitution permits such reliance, see, e. g., Gregory,
supra, at 473. Pp. 82–88.
(2) That the ADEA prohibits very little conduct likely to be held
unconstitutional, while significant, does not alone provide the answer
to the § 5 inquiry. Difficult and intractable problems often require
powerful remedies, and this Court has never held that § 5 precludes
Congress from enacting reasonably prophylactic legislation. One
means by which the Court has determined the difference between a
statute that constitutes an appropriate remedy and one that attempts
to substantively redefine the States’ legal obligations is by examining
the legislative record containing the reasons for Congress’ action. See,
e. g., City of Boerne, supra, at 530–531. A review of the ADEA’s legis-
lative record as a whole reveals that Congress had virtually no reason
to believe that state and local governments were unconstitutionally dis-
criminating against their employees on the basis of age. Congress
never identified any pattern of age discrimination by the States, much
less any discrimination whatsoever that rose to the level of constitu-

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tional violation. That failure confirms that Congress had no reason to
believe that broad prophylactic legislation was necessary in this field.
Pp. 88–91.
(e) Today’s decision does not signal the end of the line for employees
who find themselves subject to age discrimination at the hands of their
state employers. Those employees are protected by state age discrimi-
nation statutes, and may recover money damages from their state em-
ployers, in almost every State of the Union. Pp. 91–92.
139 F. 3d 1426, affirmed.
O’Connor, J., delivered the opinion of the Court, Parts I, II, and IV of
which were joined by Rehnquist, C. J., and Scalia, Kennedy, and
Thomas, JJ., and Part III of which was joined by Rehnquist, C. J., and
Stevens, Scalia, Souter, Ginsburg, and Breyer, JJ. Stevens, J.,
filed an opinion dissenting in part and concurring in part, in which Sou-
ter, Ginsburg, and Breyer, JJ., joined, post, p. 92. Thomas, J., filed an
opinion concurring in part and dissenting in part, in which Kennedy, J.,
joined, post, p. 99.
Jeremiah A. Collins argued the cause for petitioners in
No. 98–791, and respondents under this Court’s Rule 12.6 in
support of petitioner in No. 98–796. With him on the brief
were Robert H. Chanin, Laurence Gold, David Arendall,
Thomas W. Brooks, and Gerald J. Houlihan.
Barbara D. Underwood argued the cause for the United
States, as petitioner in No. 98–796, and respondent under
this Court’s Rule 12.6 in support of petitioners in No. 98–791.
With her on the briefs were Solicitor General Waxman, Act-
ing Assistant Attorney General Lee, Patricia A. Millett,
Jessica Dunsay Silver, and Seth M. Galanter.
Jeffrey S. Sutton argued the cause for state respondents in
both cases. With him on the brief were Gregory G. Katsas,
Robert A. Butterworth, Attorney General of Florida, Louis
F. Hubener and Amelia Beisner, Assistant Attorneys Gen-
eral, Bill Pryor, Attorney General of Alabama, and Alice
Ann Byrne and Jack Park, Assistant Attorneys General.†
†Laurie A. McCann and Melvin Radowitz filed a brief for the American
Association of Retired Persons et al. as amici curiae urging reversal.
Briefs of amici curiae urging affirmance were filed for the State of Ohio
et al. by Betty D. Montgomery, Attorney General of Ohio, Edward B.

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66 KIMEL v. FLORIDA BD. OF REGENTS
Opinion of the Court
Justice O’Connor delivered the opinion of the Court.
The Age Discrimination in Employment Act of 1967
(ADEA or Act), 81 Stat. 602, as amended, 29 U. S. C. § 621
et seq. (1994 ed. and Supp. III), makes it unlawful for an
employer, including a State, “to fail or refuse to hire or to
discharge any individual or otherwise discriminate against
any individual . . . because of such individual’s age.” 29
U. S. C. § 623(a)(1). In these cases, three sets of plaintiffs
filed suit under the Act, seeking money damages for their
state employers’ alleged discrimination on the basis of age.
In each case, the state employer moved to dismiss the suit
on the basis of its Eleventh Amendment immunity. The
District Court in one case granted the motion to dismiss,
while in each of the remaining cases the District Court de-
nied the motion. Appeals in the three cases were consoli-
dated before the Court of Appeals for the Eleventh Circuit,
which held that the ADEA does not validly abrogate the
States’ Eleventh Amendment immunity. In these cases, we
are asked to consider whether the ADEA contains a clear
Foley, State Solicitor, Stephen P. Carney, Associate Solicitor, and Matthew
J. Lampke, Assistant Solicitor, Paul G. Summers, Attorney General of
Tennessee, and Michael E. Moore, Solicitor General, and by the Attorneys
General for their respective States as follows: Richard Blumenthal of
Connecticut, M. Jane Brady of Delaware, Thurbert E. Baker of Georgia,
Earl I. Anzai of Hawaii, Alan G. Lance of Idaho, Carla J. Stoval of Kansas,
Richard P. Ieyoub of Louisiana, Andrew Ketterer of Maine, Jennifer M.
Granholm of Michigan, Mike Moore of Mississippi, Joseph P. Mazurek of
Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada,
John J. Farmer, Jr., of New Jersey, W. A. Drew Edmondson of Oklahoma,
Hardy Myers of Oregon, D. Michael Fisher of Pennsylvania, Sheldon
Whitehouse of Rhode Island, Jan Graham of Utah, William H. Sorrell of
Vermont, and Mark L. Earley of Virginia; for the Pennsylvania House of
Representatives, Republican Caucus, by David R. Fine and John P. Krill,
Jr.; and for the Pacific Legal Foundation by Robin L. Rivett and Frank
A. Shepherd.
Briefs of amici curiae were filed for the Coalition for Local Sovereignty
by Kenneth B. Clark; and for the English Language Advocates by Bar-
naby W. Zall.

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statement of Congress’ intent to abrogate the States’ Elev-
enth Amendment immunity and, if so, whether the ADEA
is a proper exercise of Congress’ constitutional authority.
We conclude that the ADEA does contain a clear statement
of Congress’ intent to abrogate the States’ immunity, but
that the abrogation exceeded Congress’ authority under § 5
of the Fourteenth Amendment.
I
A
The ADEA makes it unlawful for an employer “to fail
or refuse to hire or to discharge any individual or otherwise
discriminate against any individual with respect to his com-
pensation, terms, conditions, or privileges of employment,
because of such individual’s age.” 29 U. S. C. § 623(a)(1).
The Act also provides several exceptions to this broad pro-
hibition. For example, an employer may rely on age where
it “is a bona fide occupational qualification reasonably neces-
sary to the normal operation of the particular business.”
§ 623(f)(1). The Act also permits an employer to engage
in conduct otherwise prohibited by § 623(a)(1) if the em-
ployer’s action “is based on reasonable factors other than
age,” § 623(f)(1), or if the employer “discharge[s] or other-
wise discipline[s] an individual for good cause,” § 623(f)(3).
Although the Act’s prohibitions originally applied only to
individuals “at least forty years of age but less than sixty-
five years of age,” 81 Stat. 607, 29 U. S. C. § 631 (1964 ed.,
Supp. III), Congress subsequently removed the upper age
limit, and the Act now covers individuals age 40 and over,
29 U. S. C. § 631(a). Any person aggrieved by an employer’s
violation of the Act “may bring a civil action in any court
of competent jurisdiction” for legal or equitable relief.
§ 626(c)(1). Section 626(b) also permits aggrieved employ-
ees to enforce the Act through certain provisions of the
Fair Labor Standards Act of 1938 (FLSA), and the ADEA

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specifically incorporates § 16(b) of the FLSA, 29 U. S. C.
§ 216(b).
Since its enactment, the ADEA’s scope of coverage has
been expanded by amendment. Of particular importance
to these cases is the Act’s treatment of state employers and
employees. When first passed in 1967, the ADEA applied
only to private employers. See 29 U. S. C. § 630(b) (1964
ed., Supp. III) (defining term “employer” to exclude “the
United States, a corporation wholly owned by the Gov-
ernment of the United States, or a State or political sub-
division thereof ”). In 1974, in a statute consisting primarily
of amendments to the FLSA, Congress extended application
of the ADEA’s substantive requirements to the States. Fair
Labor Standards Amendments of 1974 (1974 Act), § 28, 88
Stat. 74. Congress accomplished that expansion in scope by
a simple amendment to the definition of “employer” con-
tained in 29 U. S. C. § 630(b): “The term [employer] also
means . . . a State or political subdivision of a State and
any agency or instrumentality of a State or a political sub-
division of a State . . . .” Congress also amended the
ADEA’s definition of “employee,” still defining the term to
mean “an individual employed by any employer,” but ex-
cluding elected officials and appointed policymakers at the
state and local levels. § 630(f). In the same 1974 Act, Con-
gress amended 29 U. S. C. § 216(b), the FLSA enforcement
provision incorporated by reference into the ADEA. 88
Stat. 61. Section 216(b) now permits an individual to bring
a civil action “against any employer (including a public
agency) in any Federal or State court of competent juris-
diction.” Section 203(x) defines “[p]ublic agency” to include
“the government of a State or political subdivision thereof,”
and “any agency of . . . a State, or a political subdivision
of a State.” Finally, in the 1974 Act, Congress added a pro-
vision prohibiting age discrimination generally in employ-
ment at the Federal Government. 88 Stat. 74, 29 U. S. C.
§ 633a (1994 ed. and Supp. III). Under the current ADEA,

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mandatory age limits for law enforcement officers and fire-
fighters—at federal, state, and local levels—are exempted
from the statute’s coverage. 5 U. S. C. §§ 3307(d), (e); 29
U. S. C. § 623( j) (1994 ed., Supp. III).
B
In December 1994, Roderick MacPherson and Marvin
Narz, ages 57 and 58 at the time, filed suit under the ADEA
against their employer, the University of Montevallo, in the
United States District Court for the Northern District of
Alabama. In their complaint, they alleged that the univer-
sity had discriminated against them on the basis of their
age, that it had retaliated against them for filing discrimi-
nation charges with the Equal Employment Opportunity
Commission (EEOC), and that its College of Business, at
which they were associate professors, employed an evalua-
tion system that had a disparate impact on older faculty
members. MacPherson and Narz sought declaratory and
injunctive relief, backpay, promotions to full professor,
and compensatory and punitive damages. App. 21–25. The
University of Montevallo moved to dismiss the suit for lack
of subject matter jurisdiction, contending it was barred
by the Eleventh Amendment. No party disputes the Dis-
trict Court’s holding that the university is an instrumental-
ity of the State of Alabama. On September 9, 1996, the Dis-
trict Court granted the university’s motion. MacPherson
v. University of Montevallo, Civ. Action No. 94–AR–2962–S
(ND Ala., Sept. 9, 1996), App. to Pet. for Cert. in No. 98–796,
pp. 63a–71a. The court determined that, although the
ADEA contains a clear statement of Congress’ intent to ab-
rogate the States’ Eleventh Amendment immunity, Congress
did not enact or extend the ADEA under its Fourteenth
Amendment § 5 enforcement power. Id., at 67a, 69a–70a.
The District Court therefore held that the ADEA did not
abrogate the States’ Eleventh Amendment immunity. Id.,
at 71a.

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In April 1995, a group of current and former faculty and
librarians of Florida State University, including J. Daniel
Kimel, Jr., the named petitioner in one of today’s cases, filed
suit against the Florida Board of Regents in the United
States District Court for the Northern District of Florida.
Complaint and Demand for Jury Trial in No. 95–CV–40194,
1 Record, Doc. No. 2. The complaint was subsequently
amended to add as plaintiffs current and former faculty and
librarians of Florida International University. App. 41.
The plaintiffs, all over age 40, alleged that the Florida Board
of Regents refused to require the two state universities to
allocate funds to provide previously agreed upon market
adjustments to the salaries of eligible university employees.
The plaintiffs contended that the failure to allocate the
funds violated both the ADEA and the Florida Civil Rights
Act of 1992, Fla. Stat. § 760.01 et seq. (1997 and Supp. 1998),
because it had a disparate impact on the base pay of em-
ployees with a longer record of service, most of whom were
older employees. App. 42–45. The plaintiffs sought back-
pay, liquidated damages, and permanent salary adjustments
as relief. Id., at 46. The Florida Board of Regents moved
to dismiss the suit on the grounds of Eleventh Amendment
immunity. On May 17, 1996, the District Court denied the
motion, holding that Congress expressed its intent to ab-
rogate the States’ Eleventh Amendment immunity in the
ADEA, and that the ADEA is a proper exercise of con-
gressional authority under the Fourteenth Amendment.
No. TCA 95–40194–MMP (ND Fla.), App. to Pet. for Cert. in
No. 98–796, pp. 57a–62a.
In May 1996, Wellington Dickson filed suit against his
employer, the Florida Department of Corrections, in the
United States District Court for the Northern District of
Florida. Dickson alleged that the state employer failed to
promote him because of his age and because he had filed
grievances with respect to the alleged acts of age discrimi-
nation. Dickson sought injunctive relief, backpay, and com-

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pensatory and punitive damages. App. 83–109. The Flor-
ida Department of Corrections moved to dismiss the suit on
the grounds that it was barred by the Eleventh Amendment.
The District Court denied that motion on November 5, 1996,
holding that Congress unequivocally expressed its intent to
abrogate the States’ Eleventh Amendment immunity in the
ADEA, and that Congress had authority to do so under § 5
of the Fourteenth Amendment. Dickson v. Florida Dept.
of Corrections, No. 5:96cv207–RH (ND Fla.), App. to Pet. for
Cert. in No. 98–796, pp. 72a–76a.
The plaintiffs in the MacPherson case, and the state de-
fendants in the Kimel and Dickson cases, appealed to the
Court of Appeals for the Eleventh Circuit. The United
States also intervened in all three cases to defend the
ADEA’s abrogation of the States’ Eleventh Amendment im-
munity. The Court of Appeals consolidated the appeals
and, in a divided panel opinion, held that the ADEA does
not abrogate the States’ Eleventh Amendment immunity.
139 F. 3d 1426, 1433 (1998). Judge Edmondson, although
stating that he believed “good reason exists to doubt that
the ADEA was (or could have been properly) enacted pursu-
ant to the Fourteenth Amendment,” id., at 1430, rested his
opinion on the ADEA’s lack of unmistakably clear language
evidencing Congress’ intent to abrogate the States’ sover-
eign immunity. Ibid. He noted that the ADEA lacks any
reference to the Eleventh Amendment or to the States’
sovereign immunity and does not contain, in one place, a
plain statement that States can be sued by individuals in
federal court. Id., at 1430–1431. Judge Cox concurred in
Judge Edmondson’s ultimate conclusion that the States are
immune from ADEA suits brought by individuals in fed-
eral court. Id., at 1444. Judge Cox, however, chose not
to address “the thorny issue of Congress’s intent,” id., at
1445, but instead found that Congress lacks the power under
§ 5 of the Fourteenth Amendment to abrogate the States’
Eleventh Amendment immunity under the ADEA. Ibid.

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He concluded that “the ADEA confers rights far more ex-
tensive than those the Fourteenth Amendment provides,”
id., at 1446, and that “Congress did not enact the ADEA as
a proportional response to any widespread violation of the
elderly’s constitutional rights.” Id., at 1447. Chief Judge
Hatchett dissented from both grounds. Id., at 1434.
We granted certiorari, 525 U. S. 1121 (1999), to resolve
a conflict among the Federal Courts of Appeals on the ques-
tion whether the ADEA validly abrogates the States’ Elev-
enth Amendment immunity. Compare Cooper v. New York
State Office of Mental Health, 162 F. 3d 770 (CA2 1998)
(holding that the ADEA does validly abrogate the States’
Eleventh Amendment immunity), cert. pending, No. 98–1524;
Migneault v. Peck, 158 F. 3d 1131 (CA10 1998) (same), cert.
pending, No. 98–1178; Coger v. Board of Regents of State
of Tenn., 154 F. 3d 296 (CA6 1998) (same), cert. pending,
No. 98–821; Keeton v. University of Nev. System, 150 F.
3d 1055 (CA9 1998) (same); Scott v. University of Miss.,
148 F. 3d 493 (CA5 1998) (same); and Goshtasby v. Board
of Trustees of Univ. of Ill., 141 F. 3d 761 (CA7 1998) (same),
with Humenansky v. Regents of Univ. of Minn., 152 F. 3d
822 (CA8 1998) (holding that the ADEA does not validly ab-
rogate the States’ Eleventh Amendment immunity), cert.
pending, No. 98–1235; and 139 F. 3d 1426 (CA11 1998) (case
below).
II
The Eleventh Amendment states:
“The Judicial power of the United States shall not be
construed to extend to any suit in law or equity, com-
menced or prosecuted against one of the United States
by Citizens of another State, or by Citizens or Subjects
of any Foreign State.”
Although today’s cases concern suits brought by citizens
against their own States, this Court has long “ ‘understood
the Eleventh Amendment to stand not so much for what it

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says, but for the presupposition . . . which it confirms.’ ”
Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 54 (1996)
(quoting Blatchford v. Native Village of Noatak, 501 U. S.
775, 779 (1991)). Accordingly, for over a century now, we
have made clear that the Constitution does not provide for
federal jurisdiction over suits against nonconsenting States.
College Savings Bank v. Florida Prepaid Postsecondary Ed.
Expense Bd., 527 U. S. 666, 669–670 (1999); Seminole Tribe,
supra, at 54; see Hans v. Louisiana, 134 U. S. 1, 15 (1890).
Petitioners nevertheless contend that the States of Alabama
and Florida must defend the present suits on the merits be-
cause Congress abrogated their Eleventh Amendment im-
munity in the ADEA. To determine whether petitioners
are correct, we must resolve two predicate questions: first,
whether Congress unequivocally expressed its intent to ab-
rogate that immunity; and second, if it did, whether Congress
acted pursuant to a valid grant of constitutional authority.
Seminole Tribe, supra, at 55.
III
To determine whether a federal statute properly subjects
States to suits by individuals, we apply a “simple but strin-
gent test: ‘Congress may abrogate the States’ constitution-
ally secured immunity from suit in federal court only by
making its intention unmistakably clear in the language of
the statute.’ ” Dellmuth v. Muth, 491 U. S. 223, 228 (1989)
(quoting Atascadero State Hospital v. Scanlon, 473 U. S.
234, 242 (1985)). We agree with petitioners that the ADEA
satisfies that test. The ADEA states that its provisions
“shall be enforced in accordance with the powers, remedies,
and procedures provided in sections 211(b), 216 (except for
subsection (a) thereof), and 217 of this title, and subsection
(c) of this section.” 29 U. S. C. § 626(b). Section 216(b), in
turn, clearly provides for suits by individuals against States.
That provision authorizes employees to maintain actions for
backpay “against any employer (including a public agency)

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in any Federal or State court of competent jurisdiction . . . .”
Any doubt concerning the identity of the “public agency” de-
fendant named in § 216(b) is dispelled by looking to § 203(x),
which defines the term to include “the government of a
State or political subdivision thereof,” and “any agency
of . . . a State, or a political subdivision of a State.” Read
as a whole, the plain language of these provisions clearly
demonstrates Congress’ intent to subject the States to suit
for money damages at the hands of individual employees.
Respondents maintain that these statutory sections are
less than “unmistakably clear” for two reasons. Brief for
Respondents 15. First, they note that the ADEA already
contains its own enforcement provision, § 626(c)(1), which
provides in relevant part that “[a]ny person aggrieved may
bring a civil action in any court of competent jurisdiction for
such legal or equitable relief as will effectuate the purposes
of this chapter.” Respondents claim that the existence of
§ 626(c)(1) renders Congress’ intent to incorporate the clear
statement of abrogation in § 216(b), the FLSA’s enforcement
provision, ambiguous. The text of the ADEA forecloses re-
spondents’ argument. Section 626(b) clearly states that the
ADEA “shall be enforced in accordance with the powers,
remedies, and procedures provided in [section 216(b)] and
subsection (c) of this section.” § 626(b) (emphasis added).
In accord with that statutory language, we have explained
repeatedly that § 626(b) incorporates the FLSA’s enforce-
ment provisions, and that those remedial options operate to-
gether with § 626(c)(1). See McKennon v. Nashville Banner
Publishing Co., 513 U. S. 352, 357 (1995) (“[The ADEA’s] re-
medial provisions incorporate by reference the provisions of
the Fair Labor Standards Act of 1938”); Hoffmann-La Roche
Inc. v. Sperling, 493 U. S. 165, 167 (1989) (“[T]he ADEA in-
corporates enforcement provisions of the Fair Labor Stand-
ards Act of 1938, and provides that the ADEA shall be en-
forced using certain of the powers, remedies, and procedures
of the FLSA” (citation omitted)); Lorillard v. Pons, 434 U. S.

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575, 582 (1978) (“[B]ut for those changes Congress expressly
made [in the ADEA], it intended to incorporate fully the
remedies and procedures of the FLSA”). Respondents’ ar-
gument attempts to create ambiguity where, according to
the statute’s text and this Court’s repeated interpretations
thereof, there is none.
Respondents next point to the phrase “court of competent
jurisdiction” in § 216(b), and contend that it makes Congress’
intent to abrogate less than clear. Relying on our decision
in the distinct context of a state waiver of sovereign im-
munity, Kennecott Copper Corp. v. State Tax Comm’n, 327
U. S. 573 (1946), respondents maintain that perhaps Con-
gress simply intended to permit an ADEA suit against a
State only in those cases where the State previously has
waived its Eleventh Amendment immunity to suit. We dis-
agree. Our decision in Kennecott Copper must be read in
context. The petitioner there contended that Utah had
waived its Eleventh Amendment immunity to suit in federal
court through a state statute that authorized taxpayers to
pay their taxes under protest and “ ‘thereafter bring an
action in any court of competent jurisdiction for the return
thereof . . . .’ ” Id., at 575, n. 1 (quoting Utah Code Ann.
§ 80–5–76 (1943)). Although the statute undoubtedly pro-
vided for suit against the State of Utah in its own courts,
we held that the statute fell short of the required “clear
declaration by a State of its consent to be sued in the fed-
eral courts.” 327 U. S., at 579–580 (emphasis added). Sec-
tion 216(b) contains no such ambiguity. The statute author-
izes employee suits against States “in any Federal or State
court of competent jurisdiction.” § 216(b) (emphasis added).
That language eliminates the ambiguity identified in Ken-
necott Copper—whether Utah intended to permit suits
against the sovereign in state court only, or in state and
federal court. Under § 216(b), the answer to that question is
clear—actions may be maintained in federal and state court.
That choice of language sufficiently indicates Congress’ in-

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tent, in the ADEA, to abrogate the States’ Eleventh Amend-
ment immunity to suits by individuals.
Although Justice Thomas concedes in his opinion that
our cases have never required that Congress make its clear
statement in a single section or in statutory provisions
enacted at the same time, post, at 104–105 (opinion concur-
ring in part and dissenting in part), he concludes that the
ADEA lacks the requisite clarity because of the “sequence
of events” surrounding the enactment and amendment of
§§ 216(b) and 626(b), post, at 102. Justice Thomas states
that he is unwilling to assume that when Congress amended
§ 216(b) in 1974, it recognized the consequences that amend-
ment would have for the ADEA. Ibid. We respectfully
disagree. The fact that Congress amended the ADEA itself
in the same 1974 Act makes it more than clear that Congress
understood the consequences of its actions. Indeed, Con-
gress amended § 216(b) to provide for suits against States
in precisely the same Act in which it extended the ADEA’s
substantive requirements to the States. See 1974 Act,
§ 6(d)(1), 88 Stat. 61 (amending § 216(b)); § 28(a), 88 Stat. 74
(extending ADEA to the States). Those provisions confirm
for us that the effect on the ADEA of the § 216(b) amend-
ment was not mere happenstance. In any event, we have
never held that Congress must speak with different grada-
tions of clarity depending on the specific circumstances of
the relevant legislation (e. g., amending incorporated provi-
sions as opposed to enacting a statute for the first time).
The clear statement inquiry focuses on what Congress did
enact, not when it did so. We will not infer ambiguity from
the sequence in which a clear textual statement is added to
a statute.
We also disagree with Justice Thomas’ remaining points,
see post, at 105–109. Although the ADEA does contain its
own enforcement provision in § 626(c)(1), the text of § 626(b)
acknowledges § 626(c)(1)’s existence and makes clear that
the ADEA also incorporates § 216(b), save as indicated

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otherwise in § 626(b)’s proviso. See § 626(b) (“The provi-
sions of this chapter shall be enforced in accordance with the
powers, remedies, and procedures provided in sectio[n] . . .
216 (except for subsection (a) thereof) . . . and subsection (c)
of this section” (emphasis added)). We fail to see how the
interpretation suggested by Justice Thomas, under which
§ 626(b) would carry over only those § 216(b) “embellish-
ments” not already provided for in § 626(c)(1) except for the
authorization of suits against States, see post, at 106, could
be a permissible one. To accept that interpretation, for ex-
ample, one would have to conclude that Congress intended
to incorporate only the portion of § 216(b)’s third sentence
that provides for collective actions, but not the part of the
very same sentence that authorizes suits against States.
See § 216(b) (“An action to recover the liability prescribed in
either of the preceding sentences may be maintained against
any employer (including a public agency) in any Federal or
State court of competent jurisdiction by any one or more
employees for and in behalf of himself or themselves and
other employees similarly situated”).
Justice Thomas also concludes that § 216(b) itself fails
the clear statement test. Post, at 108–109. As we have
already explained, the presence of the word “competent”
in § 216(b) does not render that provision less than “un-
mistakably clear.” See supra, at 75–76. Justice Thomas’
reliance on a single phrase from our decision in Employees
of Dept. of Public Health and Welfare of Mo. v. Depart-
ment of Public Health and Welfare of Mo., 411 U. S. 279
(1973), see post, at 108, as support for the contrary proposi-
tion is puzzling, given his separate argument with respect to
§ 6(d)(2)(A) of the 1974 Act. Crucial to Justice Thomas’
argument on that front is his acknowledgment that Congress
did intend in the 1974 amendments to permit “FLSA plain-
tiffs who had been frustrated by state defendants’ invocation
of Eleventh Amendment immunity under Employees to avail
themselves of the newly amended § 216(b).” Post, at 103;

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see also post, at 108–109. We agree with the implication of
that statement: In response to Employees, Congress clearly
intended through “the newly amended § 216(b)” to abrogate
the States’ sovereign immunity. In light of our conclu-
sion that Congress unequivocally expressed its intent to
abrogate the States’ Eleventh Amendment immunity, we
now must determine whether Congress effectuated that
abrogation pursuant to a valid exercise of constitutional
authority.
IV
A
This is not the first time we have considered the constitu-
tional validity of the 1974 extension of the ADEA to state
and local governments. In EEOC v. Wyoming, 460 U. S.
226, 243 (1983), we held that the ADEA constitutes a valid
exercise of Congress’ power “[t]o regulate Commerce . . .
among the several States,” Art. I, § 8, cl. 3, and that the Act
did not transgress any external restraints imposed on the
commerce power by the Tenth Amendment. Because we
found the ADEA valid under Congress’ Commerce Clause
power, we concluded that it was unnecessary to determine
whether the Act also could be supported by Congress’ power
under § 5 of the Fourteenth Amendment. 460 U. S., at 243.
But see id., at 259–263 (Burger, C. J., dissenting). Resolu-
tion of today’s cases requires us to decide that question.
In Seminole Tribe, we held that Congress lacks power
under Article I to abrogate the States’ sovereign immunity.
517 U. S., at 72–73. “Even when the Constitution vests in
Congress complete lawmaking authority over a particular
area, the Eleventh Amendment prevents congressional au-
thorization of suits by private parties against unconsenting
States.” Id., at 72. Last Term, in a series of three deci-
sions, we reaffirmed that central holding of Seminole Tribe.
See College Savings Bank, 527 U. S., at 672; Florida Prepaid
Postsecondary Ed. Expense Bd. v. College Savings Bank,

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527 U. S. 627, 636 (1999); Alden v. Maine, 527 U. S. 706, 712
(1999). Indeed, in College Savings Bank, we rested our de-
cision to overrule the constructive waiver rule of Parden v.
Terminal R. Co. of Ala. Docks Dept., 377 U. S. 184 (1964), in
part, on our Seminole Tribe holding. See College Savings
Bank, supra, at 683 (“Recognizing a congressional power to
exact constructive waivers of sovereign immunity through
the exercise of Article I powers would also, as a practical
matter, permit Congress to circumvent the antiabrogation
holding of Seminole Tribe”). Under our firmly established
precedent then, if the ADEA rests solely on Congress’ Ar-
ticle I commerce power, the private petitioners in today’s
cases cannot maintain their suits against their state
employers.
Justice Stevens disputes that well-established prece-
dent again. Compare post, p. 92 (opinion dissenting in part
and concurring in part), with Alden, supra, p. 760 (Souter,
J., dissenting); College Savings Bank, 527 U. S., at 692, n. 2
(Stevens, J., dissenting); id., at 699–705 (Breyer, J., dis-
senting); Florida Prepaid, supra, at 664–665 (Stevens, J.,
dissenting); Seminole Tribe, 517 U. S., at 76–100 (Stevens,
J., dissenting); id., at 100–185 (Souter, J., dissenting). In
Alden, we explained that, “[a]lthough the sovereign immu-
nity of the States derives at least in part from the common-
law tradition, the structure and history of the Constitution
make clear that the immunity exists today by constitutional
design.” 527 U. S., at 733. For purposes of today’s deci-
sion, it is sufficient to note that we have on more than one
occasion explained the substantial reasons for adhering to
that constitutional design. See id., at 712–754; College
Savings Bank, supra, at 669–670, 687–691; Seminole Tribe,
supra, at 54–55, 59–73; Pennsylvania v. Union Gas Co., 491
U. S. 1, 30–42 (1989) (Scalia, J., concurring in part and dis-
senting in part). Indeed, the present dissenters’ refusal to
accept the validity and natural import of decisions like Hans,
rendered over a full century ago by this Court, makes it dif-

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ficult to engage in additional meaningful debate on the place
of state sovereign immunity in the Constitution. Compare
Hans, 134 U. S., at 10, 14–16, with post, at 97 (Stevens, J.,
dissenting in part and concurring in part). Today we adhere
to our holding in Seminole Tribe: Congress’ powers under
Article I of the Constitution do not include the power to sub-
ject States to suit at the hands of private individuals.
Section 5 of the Fourteenth Amendment, however, does
grant Congress the authority to abrogate the States’ sov-
ereign immunity. In Fitzpatrick v. Bitzer, 427 U. S. 445
(1976), we recognized that “the Eleventh Amendment, and
the principle of state sovereignty which it embodies, are
necessarily limited by the enforcement provisions of § 5 of
the Fourteenth Amendment.” Id., at 456 (citation omitted).
Since our decision in Fitzpatrick, we have reaffirmed the
validity of that congressional power on numerous occasions.
See, e. g., College Savings Bank, supra, at 670; Florida Pre-
paid, supra, at 636–637; Alden, supra, at 756; Seminole
Tribe, supra, at 59. Accordingly, the private petitioners in
these cases may maintain their ADEA suits against the
States of Alabama and Florida if, and only if, the ADEA is
appropriate legislation under § 5.
B
The Fourteenth Amendment provides, in relevant part:
“Section 1. . . . No State shall make or enforce any
law which shall abridge the privileges or immunities of
citizens of the United States; nor shall any State de-
prive any person of life, liberty, or property, without due
process of law; nor deny to any person within its juris-
diction the equal protection of the laws.”
. . . . .
“Section 5. The Congress shall have power to enforce,
by appropriate legislation, the provisions of this article.”
As we recognized most recently in City of Boerne v. Flores,
521 U. S. 507, 517 (1997), § 5 is an affirmative grant of power
to Congress. “It is for Congress in the first instance to

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‘determin[e] whether and what legislation is needed to se-
cure the guarantees of the Fourteenth Amendment,’ and
its conclusions are entitled to much deference.” Id., at 536
(quoting Katzenbach v. Morgan, 384 U. S. 641, 651 (1966)).
Congress’ § 5 power is not confined to the enactment of legis-
lation that merely parrots the precise wording of the Four-
teenth Amendment. Rather, Congress’ power “to enforce”
the Amendment includes the authority both to remedy and
to deter violation of rights guaranteed thereunder by pro-
hibiting a somewhat broader swath of conduct, including
that which is not itself forbidden by the Amendment’s text.
521 U. S., at 518.
Nevertheless, we have also recognized that the same
language that serves as the basis for the affirmative grant
of congressional power also serves to limit that power. For
example, Congress cannot “decree the substance of the Four-
teenth Amendment’s restrictions on the States. . . . It has
been given the power ‘to enforce,’ not the power to de-
termine what constitutes a constitutional violation.” Id.,
at 519 (emphases added). The ultimate interpretation and
determination of the Fourteenth Amendment’s substantive
meaning remains the province of the Judicial Branch. Id.,
at 536. In City of Boerne, we noted that the determina-
tion whether purportedly prophylactic legislation constitutes
appropriate remedial legislation, or instead effects a sub-
stantive redefinition of the Fourteenth Amendment right at
issue, is often difficult. Id., at 519–520. The line between
the two is a fine one. Accordingly, recognizing that “Con-
gress must have wide latitude in determining where [that
line] lies,” we held that “[t]here must be a congruence and
proportionality between the injury to be prevented or reme-
died and the means adopted to that end.” Id., at 520.
In City of Boerne, we applied that “congruence and pro-
portionality” test and held that the Religious Freedom
Restoration Act of 1993 (RFRA) was not appropriate legis-
lation under § 5. We first noted that the legislative record
contained very little evidence of the unconstitutional conduct

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purportedly targeted by RFRA’s substantive provisions.
Rather, Congress had uncovered only “anecdotal evidence”
that, standing alone, did not reveal a “widespread pattern
of religious discrimination in this country.” Id., at 531.
Second, we found that RFRA is “so out of proportion to a
supposed remedial or preventive object that it cannot be
understood as responsive to, or designed to prevent, un-
constitutional behavior.” Id., at 532.
Last Term, we again had occasion to apply the “congru-
ence and proportionality” test. In Florida Prepaid, we
considered the validity of the Eleventh Amendment abro-
gation provision in the Patent and Plant Variety Protection
Remedy Clarification Act (Patent Remedy Act). We held
that the statute, which subjected States to patent infringe-
ment suits, was not appropriate legislation under § 5 of the
Fourteenth Amendment. The Patent Remedy Act failed to
meet our congruence and proportionality test first because
“Congress identified no pattern of patent infringement by
the States, let alone a pattern of constitutional violations.”
527 U. S., at 640 (emphasis added). Moreover, because it
was unlikely that many of the acts of patent infringement
affected by the statute had any likelihood of being unconsti-
tutional, we concluded that the scope of the Act was out of
proportion to its supposed remedial or preventive objectives.
Id., at 647. Instead, “[t]he statute’s apparent and more basic
aims were to provide a uniform remedy for patent infringe-
ment and to place States on the same footing as private par-
ties under that regime.” Id., at 647–648. While we ac-
knowledged that such aims may be proper congressional
concerns under Article I, we found them insufficient to
support an abrogation of the States’ Eleventh Amendment
immunity after Seminole Tribe. Florida Prepaid, supra,
at 648.
C
Applying the same “congruence and proportionality” test
in these cases, we conclude that the ADEA is not “appro-

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priate legislation” under § 5 of the Fourteenth Amendment.
Initially, the substantive requirements the ADEA imposes
on state and local governments are disproportionate to
any unconstitutional conduct that conceivably could be tar-
geted by the Act. We have considered claims of unconstitu-
tional age discrimination under the Equal Protection Clause
three times. See Gregory v. Ashcroft, 501 U. S. 452 (1991);
Vance v. Bradley, 440 U. S. 93 (1979); Massachusetts Bd.
of Retirement v. Murgia, 427 U. S. 307 (1976) (per curiam).
In all three cases, we held that the age classifications at issue
did not violate the Equal Protection Clause. See Gregory,
supra, at 473; Bradley, supra, at 102–103, n. 20, 108–112;
Murgia, supra, at 317. Age classifications, unlike govern-
mental conduct based on race or gender, cannot be char-
acterized as “so seldom relevant to the achievement of any
legitimate state interest that laws grounded in such con-
siderations are deemed to reflect prejudice and antipathy.”
Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432, 440
(1985). Older persons, again, unlike those who suffer dis-
crimination on the basis of race or gender, have not been
subjected to a “ ‘history of purposeful unequal treatment.’ ”
Murgia, supra, at 313 (quoting San Antonio Independent
School Dist. v. Rodriguez, 411 U. S. 1, 28 (1973)). Old age
also does not define a discrete and insular minority because
all persons, if they live out their normal life spans, will ex-
perience it. 427 U. S., at 313–314. Accordingly, as we rec-
ognized in Murgia, Bradley, and Gregory, age is not a sus-
pect classification under the Equal Protection Clause. See,
e. g., Gregory, supra, at 470; Bradley, supra, at 97; Murgia,
supra, at 313–314.
States may discriminate on the basis of age without of-
fending the Fourteenth Amendment if the age classification
in question is rationally related to a legitimate state interest.
The rationality commanded by the Equal Protection Clause
does not require States to match age distinctions and the
legitimate interests they serve with razorlike precision. As

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we have explained, when conducting rational basis review
“we will not overturn such [government action] unless the
varying treatment of different groups or persons is so un-
related to the achievement of any combination of legitimate
purposes that we can only conclude that the [government’s]
actions were irrational.” Bradley, supra, at 97. In con-
trast, when a State discriminates on the basis of race or
gender, we require a tighter fit between the discriminatory
means and the legitimate ends they serve. See, e. g., Ada-
rand Constructors, Inc. v. Pen˜ a, 515 U. S. 200, 227 (1995)
(“[Racial] classifications are constitutional only if they are
narrowly tailored measures that further compelling govern-
mental interests”); Mississippi Univ. for Women v. Hogan,
458 U. S. 718, 724 (1982) (holding that gender classifications
are constitutional only if they serve “ ‘important gov-
ernmental objectives and . . . the discriminatory means
employed’ are ‘substantially related to the achievement
of those objectives’ ” (citation omitted)). Under the Four-
teenth Amendment, a State may rely on age as a proxy for
other qualities, abilities, or characteristics that are relevant
to the State’s legitimate interests. The Constitution does
not preclude reliance on such generalizations. That age
proves to be an inaccurate proxy in any individual case is
irrelevant. “[W]here rationality is the test, a State ‘does
not violate the Equal Protection Clause merely because the
classifications made by its laws are imperfect.’ ” Murgia,
supra, at 316 (quoting Dandridge v. Williams, 397 U. S. 471,
485 (1970)). Finally, because an age classification is pre-
sumptively rational, the individual challenging its constitu-
tionality bears the burden of proving that the “facts on which
the classification is apparently based could not reasonably be
conceived to be true by the governmental decisionmaker.”
Bradley, supra, at 111; see Gregory, supra, at 473.
Our decisions in Murgia, Bradley, and Gregory illustrate
these principles. In all three cases, we held that the States’
reliance on broad generalizations with respect to age did

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not violate the Equal Protection Clause. In Murgia, we up-
held against an equal protection challenge a Massachusetts
statute requiring state police officers to retire at age 50.
The State justified the provision on the ground that the age
classification assured the State of the physical preparedness
of its officers. 427 U. S., at 314–315. Although we acknowl-
edged that Officer Murgia himself was in excellent physical
health and could still perform the duties of a state police
officer, we found that the statute clearly met the require-
ments of the Equal Protection Clause. Id., at 311, 314–317.
“That the State chooses not to determine fitness more pre-
cisely through individualized testing after age 50 [does not
prove] that the objective of assuring physical fitness is not
rationally furthered by a maximum-age limitation.” Id., at
316. In Bradley, we considered an equal protection chal-
lenge to a federal statute requiring Foreign Service officers
to retire at age 60. We explained: “If increasing age brings
with it increasing susceptibility to physical difficulties, . . .
the fact that individual Foreign Service employees may be
able to perform past age 60 does not invalidate [the statute]
any more than did the similar truth undercut compulsory
retirement at age 50 for uniformed state police in Murgia.”
440 U. S., at 108. Finally, in Gregory, we upheld a provision
of the Missouri Constitution that required judges to retire
at age 70. Noting that the Missouri provision was based
on a generalization about the effect of old age on the ability
of individuals to serve as judges, we acknowledged that
“[i]t is far from true that all judges suffer significant de-
terioration in performance at age 70,” “[i]t is probably not
true that most do,” and “[i]t may not be true at all.” 501
U. S., at 473. Nevertheless, because Missouri’s age classifi-
cation was subject only to rational basis review, we held that
the State’s reliance on such imperfect generalizations was
entirely proper under the Equal Protection Clause. Ibid.
These decisions thus demonstrate that the constitutionality
of state classifications on the basis of age cannot be deter-

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mined on a person-by-person basis. Our Constitution per-
mits States to draw lines on the basis of age when they have
a rational basis for doing so at a class-based level, even if it
“is probably not true” that those reasons are valid in the
majority of cases.
Judged against the backdrop of our equal protection juris-
prudence, it is clear that the ADEA is “so out of proportion
to a supposed remedial or preventive object that it cannot
be understood as responsive to, or designed to prevent, un-
constitutional behavior.” City of Boerne, 521 U. S., at 532.
The Act, through its broad restriction on the use of age as a
discriminating factor, prohibits substantially more state
employment decisions and practices than would likely be
held unconstitutional under the applicable equal protection,
rational basis standard. The ADEA makes unlawful, in
the employment context, all “discriminat[ion] against any in-
dividual . . . because of such individual’s age.” 29 U. S. C.
§ 623(a)(1). Petitioners, relying on the Act’s exceptions,
dispute the extent to which the ADEA erects protections
beyond the Constitution’s requirements. They contend that
the Act’s prohibition, considered together with its excep-
tions, applies only to arbitrary age discrimination, which in
the majority of cases corresponds to conduct that violates
the Equal Protection Clause. We disagree.
Petitioners stake their claim on § 623(f)(1). That section
permits employers to rely on age when it “is a bona fide
occupational qualification reasonably necessary to the nor-
mal operation of the particular business.” Petitioners’ re-
liance on the “bona fide occupational qualification” (BFOQ)
defense is misplaced. Our interpretation of § 623(f)(1) in
Western Air Lines, Inc. v. Criswell, 472 U. S. 400 (1985),
conclusively demonstrates that the defense is a far cry from
the rational basis standard we apply to age discrimination
under the Equal Protection Clause. The petitioner in that
case maintained that, pursuant to the BFOQ defense, em-
ployers must be permitted to rely on age when such reliance

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has a “rational basis in fact.” Id., at 417. We rejected that
argument, explaining that “[t]he BFOQ standard adopted
in the statute is one of ‘reasonable necessity,’ not reason-
ableness,” id., at 419, and that the ADEA standard and the
rational basis test are “significantly different,” id., at 421.
Under the ADEA, even with its BFOQ defense, the
State’s use of age is prima facie unlawful. See 29 U. S. C.
§ 623(a)(1); Western Air Lines, 472 U. S., at 422 (“Under the
Act, employers are to evaluate employees . . . on their
merits and not their age”). Application of the Act there-
fore starts with a presumption in favor of requiring the em-
ployer to make an individualized determination. See ibid.
In Western Air Lines, we concluded that the BFOQ defense,
which shifts the focus from the merits of the individual em-
ployee to the necessity for the age classification as a whole, is
“ ‘meant to be an extremely narrow exception to the general
prohibition’ of age discrimination contained in the ADEA.”
Id., at 412 (citation omitted). We based that conclusion on
both the restrictive language of the statutory BFOQ pro-
vision itself and the EEOC’s regulation interpreting that ex-
ception. See 29 CFR § 1625.6(a) (1998) (“It is anticipated
that this concept of a [BFOQ] will have limited scope and
application. Further, as this is an exception to the Act it
must be narrowly construed”). To succeed under the BFOQ
defense, we held that an employer must demonstrate either
“a substantial basis for believing that all or nearly all em-
ployees above an age lack the qualifications required for the
position,” or that reliance on the age classification is neces-
sary because “it is highly impractical for the employer to
insure by individual testing that its employees will have
the necessary qualifications for the job.” 472 U. S., at 422–
423 (emphases added). Measured against the rational basis
standard of our equal protection jurisprudence, the ADEA
plainly imposes substantially higher burdens on state em-
ployers. Thus, although it is true that the existence of the
BFOQ defense makes the ADEA’s prohibition of age dis-

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crimination less than absolute, the Act’s substantive require-
ments nevertheless remain at a level akin to our heightened
scrutiny cases under the Equal Protection Clause.
Petitioners also place some reliance on the next clause in
§ 623(f)(1), which permits employers to engage in conduct
otherwise prohibited by the Act “where the differentiation
is based on reasonable factors other than age.” This ex-
ception confirms, however, rather than disproves, the con-
clusion that the ADEA’s protection extends beyond the re-
quirements of the Equal Protection Clause. The exception
simply makes clear that “[t]he employer cannot rely on age
as a proxy for an employee’s remaining characteristics, such
as productivity, but must instead focus on those factors
directly.” Hazen Paper Co. v. Biggins, 507 U. S. 604, 611
(1993). Under the Constitution, in contrast, States may rely
on age as a proxy for other characteristics. See Gregory,
501 U. S., at 473 (generalization about ability to serve as
judges at age 70); Bradley, 440 U. S., at 108–109, 112 (gener-
alization about ability to serve as Foreign Service officer at
age 60); Murgia, 427 U. S., at 314–317 (generalization about
ability to serve as state police officer at age 50). Section
623(f)(1), then, merely confirms that Congress, through the
ADEA, has effectively elevated the standard for analyzing
age discrimination to heightened scrutiny.
That the ADEA prohibits very little conduct likely to be
held unconstitutional, while significant, does not alone pro-
vide the answer to our § 5 inquiry. Difficult and intractable
problems often require powerful remedies, and we have
never held that § 5 precludes Congress from enacting rea-
sonably prophylactic legislation. Our task is to determine
whether the ADEA is in fact just such an appropriate rem-
edy or, instead, merely an attempt to substantively redefine
the States’ legal obligations with respect to age discrimi-
nation. One means by which we have made such a deter-
mination in the past is by examining the legislative record
containing the reasons for Congress’ action. See, e. g., Flor-

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ida Prepaid, 527 U. S., at 640–647; City of Boerne, 521 U. S.,
at 530–531. “The appropriateness of remedial measures
must be considered in light of the evil presented. Strong
measures appropriate to address one harm may be an unwar-
ranted response to another, lesser one.” Id., at 530 (citing
South Carolina v. Katzenbach, 383 U. S. 301, 308 (1966)).
Our examination of the ADEA’s legislative record con-
firms that Congress’ 1974 extension of the Act to the States
was an unwarranted response to a perhaps inconsequential
problem. Congress never identified any pattern of age dis-
crimination by the States, much less any discrimination
whatsoever that rose to the level of constitutional violation.
The evidence compiled by petitioners to demonstrate such
attention by Congress to age discrimination by the States
falls well short of the mark. That evidence consists almost
entirely of isolated sentences clipped from floor debates and
legislative reports. See, e. g., S. Rep. No. 93–846, p. 112
(1974); S. Rep. No. 93–690, p. 56 (1974); H. R. Rep. No. 93–
913, pp. 40–41 (1974); S. Rep. No. 93–300, p. 57 (1973); Senate
Special Committee on Aging, Improving the Age Discrimi-
nation Law, 93d Cong., 1st Sess., 14 (Comm. Print 1973); 113
Cong. Rec. 34742 (1967) (remarks of Rep. Steiger); id., at
34749 (remarks of Rep. Donohue); 110 Cong. Rec. 13490
(1964) (remarks of Sen. Smathers); id., at 9912 (remarks of
Sen. Sparkman); id., at 2596 (remarks of Rep. Beckworth).
The statements of Senator Bentsen on the floor of the Senate
are indicative of the strength of the evidence relied on by
petitioners. See, e. g., 118 Cong. Rec. 24397 (1972) (stating
that “there is ample evidence that age discrimination is
broadly practiced in government employment,” but relying
on newspaper articles about federal employees); id., at 7745
(“Letters from my own State have revealed that State and
local governments have also been guilty of discrimination
toward older employees”); ibid. (“[T]here are strong indica-
tions that the hiring and firing practices of governmental
units discriminate against the elderly . . .”).

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Petitioners place additional reliance on Congress’ consid-
eration of a 1966 report prepared by the State of California
on age discrimination in its public agencies. See Hearings
on H. R. 3651 et al. before the Subcommittee on Labor of
the House of Representatives Committee on Education and
Labor, 90th Cong., 1st Sess., pp. 161–201 (1967) (Hearings)
(reprinting State of California, Citizens’ Advisory Commit-
tee on Aging, Age Discrimination in Public Agencies (1966)).
Like the assorted sentences petitioners cobble together from
a decade’s worth of congressional reports and floor debates,
the California study does not indicate that the State had en-
gaged in any unconstitutional age discrimination. In fact,
the report stated that the majority of the age limits un-
covered in the state survey applied in the law enforce-
ment and firefighting occupations. Hearings 168. Those
age limits were not only permitted under California law at
the time, see ibid., but are also currently permitted under
the ADEA. See 5 U. S. C. §§ 3307(d), (e); 29 U. S. C. § 623( j)
(1994 ed., Supp. III). Even if the California report had un-
covered a pattern of unconstitutional age discrimination in
the State’s public agencies at the time, it nevertheless would
have been insufficient to support Congress’ 1974 extension
of the ADEA to every State of the Union. The report sim-
ply does not constitute “evidence that [unconstitutional age
discrimination] had become a problem of national import.”
Florida Prepaid, supra, at 641.
Finally, the United States’ argument that Congress found
substantial age discrimination in the private sector, see Brief
for United States 38, is beside the point. Congress made
no such findings with respect to the States. Although we
also have doubts whether the findings Congress did make
with respect to the private sector could be extrapolated to
support a finding of unconstitutional age discrimination in
the public sector, it is sufficient for these cases to note that
Congress failed to identify a widespread pattern of age dis-

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crimination by the States. See Florida Prepaid, 527 U. S.,
at 640.
A review of the ADEA’s legislative record as a whole,
then, reveals that Congress had virtually no reason to be-
lieve that state and local governments were unconstitution-
ally discriminating against their employees on the basis of
age. Although that lack of support is not determinative of
the § 5 inquiry, id., at 646; City of Boerne, supra, at 531–532,
Congress’ failure to uncover any significant pattern of un-
constitutional discrimination here confirms that Congress
had no reason to believe that broad prophylactic legislation
was necessary in this field. In light of the indiscriminate
scope of the Act’s substantive requirements, and the lack
of evidence of widespread and unconstitutional age discrimi-
nation by the States, we hold that the ADEA is not a
valid exercise of Congress’ power under § 5 of the Four-
teenth Amendment. The ADEA’s purported abrogation of
the States’ sovereign immunity is accordingly invalid.
D
Our decision today does not signal the end of the line for
employees who find themselves subject to age discrimina-
tion at the hands of their state employers. We hold only
that, in the ADEA, Congress did not validly abrogate the
States’ sovereign immunity to suits by private individuals.
State employees are protected by state age discrimination
statutes, and may recover money damages from their state
employers, in almost every State of the Union.* Those ave-
*See Alaska Stat. Ann. § 18.80.010 et seq. (1998); Ariz. Rev. Stat. Ann.
§ 41–1401 et seq. (1999); Ark. Code Ann. §§ 21–3–201, 21–3–203 (1996); Cal.
Govt. Code Ann. § 12900 et seq. (West 1992 and Supp. 1999); Colo. Rev.
Stat. § 24–34–301 et seq. (1998); Conn. Gen. Stat. § 46a–51 et seq. (1999);
Del. Code Ann., Tit. 19, § 710 et seq. (Supp. 1998); Fla. Stat. §§ 112.044,
760.01 et seq. (1997 and 1998 Supp.); Ga. Code Ann. § 45–19–21 et seq. (1990
and Supp. 1996); Haw. Rev. Stat. § 378–1 et seq. (1993 and Cum. Supp.
1998); Idaho Code § 67–5901 et seq. (1995 and Supp. 1999); Ill. Comp. Stat.,
ch. 775, § 5/1–101 et seq. (1998); Ind. Code § 22–9–2–1 et seq. (1993); Iowa

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nues of relief remain available today, just as they were before
this decision.
Because the ADEA does not validly abrogate the States’
sovereign immunity, however, the present suits must be dis-
missed. Accordingly, the judgment of the Court of Appeals
is affirmed.
It is so ordered.
Justice Stevens, with whom Justice Souter, Justice
Ginsburg, and Justice Breyer join, dissenting in part and
concurring in part.
Congress’ power to regulate the American economy in-
cludes the power to regulate both the public and the private
Code § 216.1 et seq. (1994 and Supp. 1999); Kan. Stat. Ann. § 44–1111 et seq.
(1993 and Cum. Supp. 1998); Ky. Rev. Stat. Ann. § 344.010 et seq. (Michie
1997 and Supp. 1998); La. Rev. Stat. Ann. § 23:311 et seq. (West 1998); id.,
§ 51:2231 et seq. (West Supp. 1999); Me. Rev. Stat. Ann., Tit. 5, § 4551 et seq.
(1998–1999 Supp.); Md. Ann. Code, Art. 49B, § 1 et seq. (1998 and Supp.
1999); Mass. Gen. Laws § 151:1 et seq. (1997 and 1997 Supp.); Mich. Comp.
Laws § 37.2101 et seq. (West 1985 and Supp. 1999); Minn. Stat. § 363.01
et seq. (1991 and Supp. 1999); Miss. Code Ann. § 25–9–149 (1991); Mo. Rev.
Stat. § 213.010 et seq. (1994 and Cum. Supp. 1998); Mont. Code Ann. § 49–1–
101 et seq. (1997); Neb. Rev. Stat. § 48–1001 et seq. (1998); Nev. Rev. Stat.
§ 613.310 et seq. (1995); N. H. Rev. Stat. Ann. § 354–A:1 et seq. (1995 and
Supp. 1998); N. J. Stat. Ann. §§ 10:3–1, 10:5–1 et seq. (West 1993 and Supp.
1999); N. M. Stat. Ann. § 28–1–1 et seq. (1996); N. Y. Exec. Law § 290 et seq.
(McKinney 1993 and Supp. 1999); N. C. Gen. Stat. § 126–16 et seq. (1999);
N. D. Cent. Code § 14–02.4–01 et seq. (1997 and Supp. 1999); Ohio Rev.
Code Ann. § 4112.01 et seq. (1998); Okla. Stat., Tit. 25, § 1101 et seq. (1991
and Supp. 1999); Ore. Rev. Stat. § 659.010 et seq. (1997); 43 Pa. Cons. Stat.
§ 951 et seq. (1991 and Supp. 1999); R. I. Gen. Laws § 28–5–1 et seq. (1995
and Supp. 1997); S. C. Code Ann. § 1–13–10 et seq. (1986 and Cum. Supp.
1998); Tenn. Code Ann. § 4–21–101 et seq. (1998); Tex. Lab. Code Ann.
§ 21.001 et seq. (1996 and Supp. 1999); Utah Code Ann. § 34A–5–101 et seq.
(Supp. 1999); Vt. Stat. Ann., Tit. 21, § 495 et seq. (1987 and Supp. 1999); Va.
Code Ann. § 2.1–116.10 et seq. (1995 and Supp. 1999); Wash. Rev. Code
§ 49.60.010 et seq. (1994); W. Va. Code § 5–11–1 et seq. (1999); Wis. Stat.
Ann. § 111.01 et seq. (West 1997 and Supp. 1998); Wyo. Stat. Ann. § 27–9–
101 et seq. (1999).

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sectors of the labor market. Federal rules outlawing dis-
crimination in the workplace, like the regulation of wages
and hours or health and safety standards, may be enforced
against public as well as private employers. In my opinion,
Congress’ power to authorize federal remedies against state
agencies that violate federal statutory obligations is coexten-
sive with its power to impose those obligations on the States
in the first place. Neither the Eleventh Amendment nor
the doctrine of sovereign immunity places any limit on that
power. See Seminole Tribe of Fla. v. Florida, 517 U. S. 44,
165–168 (1996) (Souter, J., dissenting); EEOC v. Wyoming,
460 U. S. 226, 247–248 (1983) (Stevens, J., concurring).
The application of the ancient judge-made doctrine of
sovereign immunity in cases like these is supposedly justi-
fied as a freestanding limit on congressional authority, a limit
necessary to protect States’ “dignity and respect” from im-
pairment by the National Government. The Framers did
not, however, select the Judicial Branch as the constitu-
tional guardian of those state interests. Rather, the Fram-
ers designed important structural safeguards to ensure that
when the National Government enacted substantive law
(and provided for its enforcement), the normal operation
of the legislative process itself would adequately defend
state interests from undue infringement. See generally
Wechsler, The Political Safeguards of Federalism: The Role
of the States in the Composition and Selection of the Na-
tional Government, 54 Colum. L. Rev. 543 (1954).
It is the Framers’ compromise giving each State equal
representation in the Senate that provides the principal
structural protection for the sovereignty of the several
States. The composition of the Senate was originally deter-
mined by the legislatures of the States, which would guaran-
tee that their interests could not be ignored by Congress.1
1 The Federalist No. 45, p. 291 (C. Rossiter ed. 1961) (J. Madison) (“The
State governments may be regarded as constituent and essential parts of
the federal government . . . . The Senate will be elected absolutely and

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The Framers also directed that the House be composed of
Representatives selected by voters in the several States, the
consequence of which is that “the states are the strategic
yardsticks for the measurement of interest and opinion, the
special centers of political activity, the separate geographical
determinants of national as well as local politics.” Id., at
546.
Whenever Congress passes a statute, it does so against
the background of state law already in place; the propriety
of taking national action is thus measured by the metric of
the existing state norms that Congress seeks to supple-
ment or supplant.2 The persuasiveness of any justifica-
tion for overcoming legislative inertia and taking national
action, either creating new federal obligations or providing
for their enforcement, must necessarily be judged in refer-
ence to state interests, as expressed in existing state laws.
The precise scope of federal laws, of course, can be shaped
with nuanced attention to state interests. The Congress
also has the authority to grant or withhold jurisdiction in
lower federal courts. The burden of being haled into a
federal forum for the enforcement of federal law, thus, can
be expanded or contracted as Congress deems proper, which
decision, like all other legislative acts, necessarily contem-
plates state interests. Thus, Congress can use its broad
range of flexible legislative tools to approach the delicate
issue of how to balance local and national interests in the
exclusively by the State legislatures. . . . Thus, [it] will owe its existence
more or less to the favor of the State governments, and must consequently
feel a dependence, which is much more likely to beget a disposition too
obsequious than too overbearing towards them”).
2 When Congress expanded the Age Discrimination in Employment Act
of 1967 (ADEA) in 1974 to apply to public employers, all 50 States had
some form of age discrimination law, but 24 of them did not extend their
own laws to public employers. See App. to Brief for Respondents 1a–25a.

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most responsive and careful manner.3 It is quite evident,
therefore, that the Framers did not view this Court as the
ultimate guardian of the States’ interest in protecting their
own sovereignty from impairment by “burdensome” federal
laws.4
3 Thus, the present majority’s view does more than simply aggrandize
the power of the Judicial Branch. It also limits Congress’ options for
responding with precise attention to state interests when it takes national
action. The majority’s view, therefore, does not bolster the Framers’ plan
of structural safeguards for state interests. Rather, it is fundamentally
at odds with that plan. Indeed, as Justice Breyer has explained, for-
bidding private remedies may necessitate the enlargement of the federal
bureaucracy and make it more difficult “to decentralize governmental de-
cisionmaking and to provide individual citizens, or local communities, with
a variety of enforcement powers.” College Savings Bank v. Florida Pre-
paid Postsecondary Ed. Expense Bd., 527 U. S. 666, 705 (1999) (dissenting
opinion); see also Printz v. United States, 521 U. S. 898, 976–978 (1997)
(Breyer, J., dissenting).
4 The President also plays a role in the enactment of federal law, and
the Framers likewise provided structural safeguards to protect state in-
terests in the selection of the President. The electors who choose the
President are appointed in a manner directed by the state legislatures.
Art. II, § 1, cl. 2. And if a majority of electors do not cast their vote for
one person, then the President is chosen by the House of Representatives.
“But in chusing the President” by this manner, the Constitution directs
that “the Votes shall be taken by States, the Representatives from each
State having one Vote.” Art. II, § 1, cl. 3 (emphasis added); see also
Amdt. 12.
Moreover, the Constitution certainly protects state interests in other
ways as well, as in the provisions of Articles IV, V, and VII. My concern
here, however, is with the respect for state interests safeguarded by the
ordinary legislative process. The balance between national and local in-
terests reflected in other constitutional provisions may vary, see, e. g., U. S.
Term Limits, Inc. v. Thornton, 514 U. S. 779 (1995), but insofar as Con-
gress’ legislative authority is concerned, the relevant constitutional provi-
sions were crafted to ensure that the process itself adequately accounted
for local interests.
I also recognize that the Judicial Branch sometimes plays a role in limit-
ing the product of the legislative process. It may do so, for example,
when the exercise of legislative authority runs up against some other con-

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Federalism concerns do make it appropriate for Congress
to speak clearly when it regulates state action. But when
it does so, as it has in these cases,5 we can safely presume
that the burdens the statute imposes on the sovereignty of
the several States were taken into account during the delib-
erative process leading to the enactment of the measure.
Those burdens necessarily include the cost of defending
against enforcement proceedings and paying whatever pen-
alties might be incurred for violating the statute. In my
judgment, the question whether those enforcement proceed-
ings should be conducted exclusively by federal agencies, or
may be brought by private parties as well, is a matter of
policy for Congress to decide. In either event, once Con-
gress has made its policy choice, the sovereignty concerns of
the several States are satisfied, and the federal interest in
evenhanded enforcement of federal law, explicitly endorsed
in Article VI of the Constitution, does not countenance fur-
ther limitations. There is not a word in the text of the Con-
stitution supporting the Court’s conclusion that the judge-
made doctrine of sovereign immunity limits Congress’ power
to authorize private parties, as well as federal agencies, to
enforce federal law against the States. The importance of
respecting the Framers’ decision to assign the business of
lawmaking to the Congress dictates firm resistance to the
present majority’s repeated substitution of its own views of
federalism for those expressed in statutes enacted by the
Congress and signed by the President.
stitutional command. See Seminole Tribe of Fla. v. Florida, 517 U. S. 44,
166–167 (1996) (Souter, J., dissenting). But in those instances, courts
are not crafting wholly judge-made doctrines unrelated to any constitu-
tional text, nor are they doing so solely under the guise of the necessity
of safeguarding state interests.
5 Because Congress has clearly expressed its intention to subject States
to suits by private parties under the ADEA, I join Part III of the opinion
of the Court.

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The Eleventh Amendment simply does not support the
Court’s view. As has been stated before, the Amendment
only places a textual limitation on the diversity jurisdiction
of the federal courts. See Atascadero State Hospital v.
Scanlon, 473 U. S. 234, 286–289 (1985) (Brennan, J., dissent-
ing). Because the Amendment is a part of the Constitution,
I have never understood how its limitation on the diversity
jurisdiction of federal courts defined in Article III could
be “abrogated” by an Act of Congress. Seminole Tribe, 517
U. S., at 93 (Stevens, J., dissenting). Here, however, pri-
vate petitioners did not invoke the federal courts’ diversity
jurisdiction; they are citizens of the same State as the de-
fendants and they are asserting claims that arise under
federal law. Thus, today’s decision (relying as it does on
Seminole Tribe) rests entirely on a novel judicial interpre-
tation of the doctrine of sovereign immunity,6 which the
Court treats as though it were a constitutional precept. It
is nevertheless clear to me that if Congress has the power
to create the federal rights that these petitioners are assert-
ing, it must also have the power to give the federal courts
jurisdiction to remedy violations of those rights, even if it is
necessary to “abrogate” the Court’s “Eleventh Amendment”
version of the common-law defense of sovereign immunity to
do so. That is the essence of the Court’s holding in Penn-
sylvania v. Union Gas Co., 491 U. S. 1, 13–23 (1989).
I remain convinced that Union Gas was correctly decided
and that the decision of five Justices in Seminole Tribe to
overrule that case was profoundly misguided. Despite my
respect for stare decisis, I am unwilling to accept Seminole
Tribe as controlling precedent. First and foremost, the
reasoning of that opinion is so profoundly mistaken and so
6 Under the traditional view, the sovereign immunity defense was rec-
ognized only as a matter of comity when asserted in the courts of an-
other sovereign, rather than as a limitation on the jurisdiction of that
forum. See Schooner Exchange v. McFaddon, 7 Cranch 116, 136 (1812)
(Marshall, C. J.); Nevada v. Hall, 440 U. S. 410, 414–418 (1979).

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fundamentally inconsistent with the Framers’ conception of
the constitutional order that it has forsaken any claim to the
usual deference or respect owed to decisions of this Court.
Stare decisis, furthermore, has less force in the area of con-
stitutional law. See, e. g., Burnet v. Coronado Oil & Gas
Co., 285 U. S. 393, 406–410 (1932) (Brandeis, J., dissenting).
And in this instance, it is but a hollow pretense for any
State to seek refuge in stare decisis’ protection of reliance
interests. It cannot be credibly maintained that a State’s
ordering of its affairs with respect to potential liability
under federal law requires adherence to Seminole Tribe,
as that decision leaves open a State’s liability upon enforce-
ment of federal law by federal agencies. Nor can a State
find solace in the stare decisis interest of promoting “the
evenhanded . . . and consistent development of legal princi-
ples.” Payne v. Tennessee, 501 U. S. 808, 827 (1991). That
principle is perverted when invoked to rely on sovereign
immunity as a defense to deliberate violations of settled
federal law. Further, Seminole Tribe is a case that will un-
questionably have serious ramifications in future cases; in-
deed, it has already had such an effect, as in the Court’s
decision today and in the equally misguided opinion of Alden
v. Maine, 527 U. S. 706 (1999). Further still, the Seminole
Tribe decision unnecessarily forces the Court to resolve
vexing questions of constitutional law respecting Congress’
§ 5 authority. Finally, by its own repeated overruling of
earlier precedent, the majority has itself discounted the im-
portance of stare decisis in this area of the law.7 The kind
of judicial activism manifested in cases like Seminole Tribe,
7 See, e. g., College Savings Bank v. Florida Prepaid Postsecondary
Ed. Expense Bd., 527 U. S., at 675–683 (overruling Parden v. Terminal R.
Co. of Ala. Docks Dept., 377 U. S. 184 (1964)); Seminole Tribe, 517 U. S.,
at 63–73 (overruling Pennsylvania v. Union Gas Co., 491 U. S. 1 (1989));
Pennhurst State School and Hospital v. Halderman, 465 U. S. 89, 127,
132–137 (1984) (Stevens, J., dissenting) (“[T]he Court repudiates at least
28 cases, spanning well over a century of this Court’s jurisprudence”).

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Alden v. Maine, Florida Prepaid Postsecondary Ed. Ex-
pense Bd. v. College Savings Bank, 527 U. S. 627 (1999), and
College Savings Bank v. Florida Prepaid Postsecondary Ed.
Expense Bd., 527 U. S. 666 (1999), represents such a radical
departure from the proper role of this Court that it should
be opposed whenever the opportunity arises.
Accordingly, I respectfully dissent.
Justice Thomas, with whom Justice Kennedy joins,
concurring in part and dissenting in part.
In Atascadero State Hospital v. Scanlon, 473 U. S. 234
(1985), this Court, cognizant of the impact of an abrogation
of the States’ Eleventh Amendment immunity from suit in
federal court on “the usual constitutional balance between
the States and the Federal Government,” reaffirmed that
“Congress may abrogate . . . only by making its intention
unmistakably clear in the language of the statute.” Id., at
242. This rule “ ‘assures that the legislature has in fact
faced, and intended to bring into issue, the critical matters
involved in the judicial decision.’ ” Will v. Michigan Dept.
of State Police, 491 U. S. 58, 65 (1989) (quoting United States
v. Bass, 404 U. S. 336, 349 (1971)). And it is especially appli-
cable when this Court deals with a statute like the Age Dis-
crimination in Employment Act of 1967 (ADEA), whose sub-
stantive mandates extend to “elevator operators, janitors,
charwomen, security guards, secretaries, and the like in
every office building in a State’s governmental hierarchy.”
Employees of Dept. of Public Health and Welfare of Mo. v.
Department of Public Health and Welfare of Mo., 411 U. S.
279, 285 (1973). Because I think that Congress has not
made its intention to abrogate “unmistakably clear” in the
text of the ADEA, I respectfully dissent from Part III of the
Court’s opinion.1
1 I concur in Parts I, II, and IV of the Court’s opinion because I agree
that the purported abrogation of the States’ Eleventh Amendment immu-
nity in the ADEA falls outside Congress’ § 5 enforcement power.

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I
It is natural to begin the clear statement inquiry by ex-
amining those provisions that reside within the four corners
of the Act in question. Private petitioners and the govern-
ment correctly observe that the ADEA’s substantive pro-
visions extend to the States as employers, see 29 U. S. C.
§ 623(a) (providing that “[i]t shall be unlawful for an em-
ployer” to engage in certain age discriminatory practices);
§ 630(b) (defining “employer” to include “a State or a political
subdivision of a State”); § 630(f) (defining “employee” as “an
individual employed by any employer”), and that the ADEA
establishes an individual right-of-action provision for “ag-
grieved” persons, see § 626(c)(1) (“Any person aggrieved may
bring a civil action in any court of competent jurisdiction for
such legal or equitable relief as will effectuate the purposes
of this chapter”). Since, in the case of a state employee,
the only possible defendant is the State, it is submitted that
Congress clearly expressed its intent that a state employee
may qualify as a “person aggrieved” under § 626(c)(1) and
bring suit against his state employer in federal court.
While the argument may have some logical appeal, it
is squarely foreclosed by precedent—which explains the
Court’s decision to employ different reasoning in finding a
clear statement, see ante, at 73. In Employees, we con-
fronted the pre-1974 version of the Fair Labor Standards
Act of 1938 (FLSA), which clearly extended as a substantive
matter to state employers, and included the following private
right-of-action provision: “ ‘Action to recover such liability
may be maintained in any court of competent jurisdiction.’ ”
Employees, supra, at 283 (quoting 29 U. S. C. § 216(b) (1970
ed.)). We held that this language fell short of a clear state-
ment of Congress’ intent to abrogate. The FLSA’s substan-
tive coverage of state employers could be given meaning
through enforcement by the Secretary of Labor, which would
raise no Eleventh Amendment issue, 411 U. S., at 285–286,
and we were “reluctant to believe that Congress in pursuit

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of a harmonious federalism desired to treat the States so
harshly” by abrogating their Eleventh Amendment immu-
nity, id., at 286. See also, e. g., Dellmuth v. Muth, 491 U. S.
223, 228 (1989) (holding that Congress had not clearly stated
its intent to abrogate in a statute that authorized “parties
aggrieved . . . to ‘bring a civil action . . . in any State court
of competent jurisdiction or in a district court of the United
States without regard to the amount in controversy’ ”) (quot-
ing 20 U. S. C. § 1415(e)(2) (1982 ed.)).
The ADEA is no different from the version of the FLSA
we examined in Employees. It unquestionably extends as a
substantive matter to state employers, but does not mention
States in its right-of-action provision: “Any person aggrieved
may bring a civil action in any court of competent jurisdic-
tion for such legal or equitable relief as will effectuate the
purposes of this chapter.” 29 U. S. C. § 626(c)(1). This pro-
vision simply does not reveal Congress’ attention to the
augmented liability and diminished sovereignty concomitant
to an abrogation of Eleventh Amendment immunity. “Con-
gress, acting responsibly, would not be presumed to take
such action silently.” Employees, supra, at 284–285.
II
Perhaps recognizing the obstacle posed by Employees,
private petitioners and the Government contend that the
ADEA incorporates a clear statement from the FLSA. The
ADEA’s incorporating reference, which has remained con-
stant since the enactment of the ADEA in 1967, provides:
“The provisions of this chapter shall be enforced in ac-
cordance with the powers, remedies, and procedures pro-
vided in sections 211(b), 216 (except for subsection (a)
thereof), and 217 of this title, and subsection (c) of this sec-
tion.” 29 U. S. C. § 626(b). It is argued that § 216(b)—one
of the incorporated provisions from the FLSA—unequivo-
cally abrogates the States’ immunity from suit in federal
court. That section states in relevant part that “[a]n action

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to recover the liability prescribed in either of the preceding
sentences may be maintained against any employer (includ-
ing a public agency) in any Federal or State court of compe-
tent jurisdiction.” 29 U. S. C. § 216(b).
But, as noted in the above discussion of Employees,
§ 216(b) was not always so worded. At the time the ADEA
was enacted in 1967, a relatively sparse version of § 216(b)—
which Employees held insufficient to abrogate the States’
immunity—provided that an “[a]ction to recover such liabil-
ity may be maintained in any court of competent jurisdic-
tion.” 29 U. S. C. § 216(b) (1964 ed.). It was not until 1974
that Congress modified § 216(b) to its current formulation.
Fair Labor Standards Amendments of 1974 (1974 Amend-
ments), § 6(d)(1), 88 Stat. 61.
This sequence of events suggests, in my view, that we
should approach with circumspection any theory of “clear
statement by incorporation.” Where Congress amends an
Act whose provisions are incorporated by other Acts, the
bill under consideration does not necessarily mention the
incorporating references in those other Acts, and so fails to
inspire confidence that Congress has deliberated on the con-
sequences of the amendment for the other Acts. That is the
case here. The legislation that amended § 216(b), § 6(d)(1) of
the 1974 Amendments, did not even acknowledge § 626(b).
And, given the purpose of the clear statement rule to “ ‘as-
sur[e] that the legislature has in fact faced’ ” the issue of
abrogation, Will, 491 U. S., at 65 (quoting Bass, 404 U. S., at
349), I am unwilling to indulge the fiction that Congress,
when it amended § 216(b), recognized the consequences for a
separate Act (the ADEA) that incorporates the amended
provision.
To be sure, § 28 of the 1974 Amendments, 88 Stat. 74, did
modify certain provisions of the ADEA, which might suggest
that Congress understood the impact of § 6(d)(1) on the
ADEA. See ante, at 76. But § 6(d)(2)(A), another of the
1974 Amendments, suggests just the opposite. Section

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6(d)(2)(A) added to the statute of limitations provision of the
FLSA, 29 U. S. C. § 255, a new subsection (d), which sus-
pended the running of the statutory periods of limitation on
“any cause of action brought under section 16(b) of the
[FLSA, 29 U. S. C. § 216(b)] . . . on or before April 18, 1973,”
the date Employees was decided, until “one hundred and
eighty days after the effective date of [the 1974 Amend-
ments].” The purpose of this new subsection—revealed not
only by its reference to the date Employees was decided,
but also by its exception for actions in which “judgment
has been entered for the defendant on the grounds other
than State immunity from Federal jurisdiction”—was to
allow FLSA plaintiffs who had been frustrated by state
defendants’ invocation of Eleventh Amendment immunity
under Employees to avail themselves of the newly amended
§ 216(b). 2 It appears, however, that Congress was oblivious
to the impact of § 6(d)(2)(A) on the ADEA. The new
§ 255(d), by operation of § 7(e) of the ADEA, 29 U. S. C.
§ 626(e) (1988 ed.) (“Sectio[n] 255 . . . of this title shall apply
to actions under this chapter”),3 automatically became part
of the ADEA in 1974. And yet the new § 255(d) could have
no possible application to the ADEA because, as the Court
observes, ante, at 76 (citing § 28(a) of the 1974 Amendments),
the ADEA’s substantive mandates did not even apply to
the States until the 1974 Amendments. Thus, before 1974,
2 That Congress had this purpose in mind as to the FLSA does not mean
that the product of Congress’ efforts—the amended § 216(b)—qualifies as a
clear statement. The amended § 216(b)’s description of the forum as “any
Federal . . . court of competent jurisdiction,” 29 U. S. C. § 216(b) (emphasis
added), is ambiguous insofar as a federal court might not be “competent”
unless the state defendant consents to suit. See infra, at 108–109. My
present point is simply that, even assuming the amended § 216(b) qualifies
as a clear statement, the 1974 Congress likely did not contemplate the
impact of the new § 216(b) on the ADEA.
3 The ADEA was amended in 1991 to remove the incorporating ref-
erence. See Civil Rights Act of 1991, § 115, 105 Stat. 1079, 29 U. S. C.
§ 626(e).

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there were no ADEA suits against States that could be
affected by § 255(d)’s tolling provision. If Congress had
recognized this “overinclusiveness” problem, it likely would
have amended § 626(e) to incorporate only §§ 255(a)–(c). Cf.
§ 626(b) (incorporating “the powers, remedies, and proce-
dures provided in sectio[n] . . . 216 (except for subsection (a)
thereof ”) (emphasis added)). But since Congress did not do
so, we are left to conclude that Congress did not clearly focus
on the impact of § 6(d)(2)(A) on the ADEA. And Congress’
insouciance with respect to the impact of § 6(d)(2)(A) sug-
gests that Congress was similarly inattentive to the impact
of § 6(d)(1).
Insofar as § 6(d)(2)(A) is closer to § 6(d)(1) in terms of
space and purpose than is § 28, the implication I would draw
from § 6(d)(2)(A) almost certainly outweighs the inference
the Court would draw from § 28. In any event, the notion
that § 28 of the 1974 Amendments evidences Congress’
awareness of every last ripple those amendments might
cause in the ADEA is at best a permissible inference, not
“the unequivocal declaration which . . . is necessary before
we will determine that Congress intended to exercise its
powers of abrogation.” Dellmuth, 491 U. S., at 232.
The Court advances a more general critique of my ap-
proach, explaining that “we have never held that Congress
must speak with different gradations of clarity depending on
the specific circumstances of the relevant legislation . . . .”
Ante, at 76. But that descriptive observation, with which I
agree, is hardly probative in light of the fact that a “clear
statement by incorporation” argument has not to date been
presented to this Court. I acknowledge that our previous
cases have not required a clear statement to appear within
a single section or subsection of an Act. Pennsylvania v.
Union Gas Co., 491 U. S. 1, 7–10 (1989), overruled on other
grounds, Seminole Tribe of Fla. v. Florida, 517 U. S. 44
(1996); see also id., at 56–57 (confirming clear statement in
one statutory subsection by looking to provisions in other

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subsection). Nor have our cases required that such separate
sections or subsections of an Act be passed at the same time.
Union Gas, supra, at 7–13, and n. 2 (consulting original
provisions of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 and 1986 amend-
ments to that Act). But, even accepting Union Gas to be
correctly decided, I do not think the situation where Con-
gress amends an incorporated provision is analogous to
Union Gas. In the Union Gas setting, where the later Con-
gress actually amends the earlier enacted Act, it is reason-
able to assume that the later Congress focused on each of
the various provisions, whether new or old, that combine to
express an intent to abrogate.
III
Even if a clarifying amendment to an incorporated provi-
sion might sometimes provide a clear statement to abrogate
for purposes of the Act into which the provision is incorpo-
rated, this is not such a case for two reasons. First, § 626(b)
does not clearly incorporate the part of § 216(b) that estab-
lishes a private right of action against employers. Second,
even assuming § 626(b) incorporates § 216(b) in its entirety,
§ 216(b) itself falls short of an “unmistakably clear” expres-
sion of Congress’ intent to abrogate the States’ Eleventh
Amendment immunity from suit in federal court.
A
I do not dispute that § 626(b) incorporates into the ADEA
some provisions of § 216(b). But it seems to me at least open
to debate whether § 626(b) incorporates the portion of
§ 216(b) that creates an individual private right of action, for
the ADEA already contains its own private right-of-action
provision—§ 626(c)(1). See McKennon v. Nashville Banner
Publishing Co., 513 U. S. 352, 358 (1995) (“The ADEA . . .
contains a vital element found in both Title VII and the
Fair Labor Standards Act: It grants an injured employee a

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right of action to obtain the authorized relief. 29 U. S. C.
§ 626(c)”); 1 B. Lindemann & P. Grossman, Employment Dis-
crimination Law 573–574 (3d ed. 1996) (“The ADEA grants
any aggrieved person the right to sue for legal or equitable
relief that will effectuate the purposes of the Act” (citing
§ 626(c)(1)) (footnote omitted)). While the right-of-action
provisions in §§ 626(c) and 216(b) are not identically phrased,
compare § 626(c)(1) (“Any person aggrieved may bring a civil
action in any court of competent jurisdiction for such legal
or equitable relief as will effectuate the purposes of this
chapter”), with § 216(b) (“An action to recover the liability
prescribed in either of the preceding sentences may be main-
tained against any employer (including a public agency) in
any Federal or State court of competent jurisdiction . . .”),
they are certainly similar in function.
Indeed, if § 216(b)’s private right-of-action provision were
incorporated by § 626(b) and hence available to ADEA plain-
tiffs, the analogous right of action established by § 626(c)(1)
would be wholly superfluous—an interpretive problem the
Court does not even pause to acknowledge. To avoid the
overlap, one might read the ADEA to create an exclusive
private right of action in § 626(c)(1), and then to add various
embellishments, whether from elsewhere in the ADEA, see
§ 626(c)(2) (trial by jury), or from the incorporated parts of
the FLSA, see, e. g., § 216(b) (collective actions); ibid. (attor-
ney’s fees); ibid. (liquidated damages).4
Of course the Court’s interpretation—that an ADEA
plaintiff may choose § 626(c)(1) or § 216(b) as the basis for
his private right of action—is also plausible. “But such a
permissible inference, whatever its logical force, would re-
main just that: a permissible inference. It would not be
the unequivocal declaration which . . . is necessary before we
will determine that Congress intended to exercise its powers
4 The ADEA expressly limits this last remedy to “cases of willful vio-
lations.” 29 U. S. C. § 626(b); see Lorillard v. Pons, 434 U. S. 575, 581
(1978).

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of abrogation.” Dellmuth, 491 U. S., at 232. Apparently
cognizant of this rule, the Court resorts to extrinsic evi-
dence: our prior decisions. See, e. g., ante, at 74 (“ ‘[T]he
ADEA incorporates enforcement provisions of the Fair
Labor Standards Act of 1938, and provides that the ADEA
shall be enforced using certain of the powers, remedies, and
procedures of the FLSA’ ” (alteration in original)) (quoting
Hoffmann-La Roche Inc. v. Sperling, 493 U. S. 165, 167
(1989) (citations omitted)). But judicial opinions, especially
those issued subsequent to the enactments in question,
have no bearing on whether Congress has clearly stated its
intent to abrogate in the text of the statute. How could
they, given that legislative history—which at least antedates
the enactments under review—is “irrelevant to a judicial
inquiry into whether Congress intended to abrogate the
Eleventh Amendment”? Dellmuth, supra, at 230. In any
event, Hoffmann-La Roche, which did not present the
question of a State’s Eleventh Amendment immunity,5 is
perfectly consistent with the view that the ADEA incorpo-
rates only “extras” from the FLSA, not overlapping pro-
visions. Hoffmann-La Roche involved the ADEA’s incorpo-
ration of the FLSA’s authorization of collective actions, which
follows § 216(b)’s individual private right-of-action provision,
see § 216(b) (“An action to recover the liability prescribed
in either of the preceding sentences may be maintained
against any employer (including a public agency) in any Fed-
eral or State court of competent jurisdiction by any one
5 That the Hoffmann-La Roche Court did not consider § 216(b)’s im-
plications for the Eleventh Amendment clear statement rule is apparent
from its selective quotation of § 216(b)—omitting the words “(including a
public agency).” See 493 U. S., at 167–168 (“This controversy centers
around one of the provisions the ADEA incorporates, which states, in
pertinent part, that an action ‘may be maintained against any employer . . .
in any Federal or State court of competent jurisdiction by any one or more
employees for and in behalf of himself or themselves and other employees
similarly situated’ ” (alteration in original)) (quoting 29 U. S. C. § 216(b)
(1982 ed.)).

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or more employees for and in behalf of himself or them-
selves and other employees similarly situated” (emphasis
added)), and so may be viewed as falling outside the overlap
described above.6
B
Even if § 626(b) incorporates § 216(b)’s individual right-
of-action provision, that provision itself falls short of “un-
mistakable” clarity insofar as it describes the forum for suit
as “any Federal or State court of competent jurisdiction.”
§ 216(b) (emphasis added). For it may be that a federal
court is not “competent” under the Eleventh Amendment to
adjudicate a suit by a private citizen against a State unless
the State consents to the suit. As we explained in Em-
ployees, “[t]he history and tradition of the Eleventh Amend-
ment indicate that by reason of that barrier a federal court
is not competent to render judgment against a noncon-
senting State.” 411 U. S., at 284 (emphasis added). The
Court suggests, ante, at 76–77, that its ability to distinguish
a single precedent, ante, at 75–76 (discussing Kennecott Cop-
per Corp. v. State Tax Comm’n, 327 U. S. 573 (1946)), illumi-
nates this aspect of § 216(b). But the Court neither ac-
knowledges what Employees had to say on this point nor
explains why it follows from the modern § 216(b)’s clarity rel-
ative to the old § 216(b) that the modern § 216(b) is clear
enough as an absolute matter to satisfy the Atascadero rule,
which requires “unmistakable” clarity.
That is not to say that the FLSA as a whole lacks a clear
statement of Congress’ intent to abrogate. Section 255(d)
6 The other two cases upon which the Court relies, see ante, at 74–75
(citing McKennon v. Nashville Banner Publishing Co., 513 U. S. 352, 357
(1995), and Lorillard v. Pons, supra, at 582), are also consistent with the
view that the ADEA incorporates only “extras” from the FLSA, not over-
lapping provisions. In neither case did we consider whether the ADEA
incorporates the part of § 216(b) that creates a private action “against any
employer (including a public agency) in any Federal or State court of com-
petent jurisdiction.”

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elucidates the ambiguity within § 216(b). Section 255(d), it
will be recalled, suspended the running of the statute of
limitations on actions under § 216(b) brought against a
State or political subdivision on or before April 18, 1973
(the date Employees was decided) until “one hundred and
eighty days after the effective date of the [1974 Amend-
ments], except that such suspension shall not be applicable
if in such action judgment has been entered for the defend-
ant on the grounds other than State immunity from Federal
jurisdiction.” § 255(d) (emphasis added). As I explained in
Part II,7 however, not only does § 255(d) on its face apply
only to the FLSA, but Congress’ failure to amend the
ADEA’s general incorporation of § 255, 29 U. S. C. § 626(e)
(1988 ed.), strongly suggests that Congress paid scant atten-
tion to the impact of § 255(d) upon the ADEA. Accordingly,
I cannot accept the notion that § 255(d) furnishes clarifying
guidance in interpreting § 216(b) for ADEA purposes, what-
ever assistance it might provide to a construction of § 216(b)
for FLSA purposes.8
* * *
For these reasons, I respectfully dissent from Part III of
the Court’s opinion.
7 Supra, at 101–105.
8 While § 255 once was incorporated by the ADEA, see § 7(e), 81 Stat.
605, 29 U. S. C. § 626(e) (1988 ed.), the ADEA was amended in 1991 to
remove the incorporating reference, see Civil Rights Act of 1991, § 115,
105 Stat. 1079, 29 U. S. C. § 626(e). The current “unavailability” of § 255(d)
for ADEA purposes perhaps explains why the Court, which purports to
examine only the statute in its current form, ante, at 76, does not rely on
§ 255(d). But, as I have explained, without the light § 255(d) sheds on
§ 216(b), § 216(b) falls short of a clear statement of Congress’ intent to
abrogate.