Kazmier, et al v. Widmann, et al

1
Revised August 29, 2000
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________________
No. 99-30242
__________________________
JANICE KAZMIER,
Plaintiff-Appellee,
and
UNITED STATES OF AMERICA,
Intervenor Plaintiff-Appellee,
versus
MARY WIDMANN, individually and in her official capacity as Chief
attorney for the Louisiana Department of Social Services;
STEVEN L. MAYER, individually and in his official capacity as
General Counsel for the Louisiana Department of Social Services;
GLORIA BRYANT-BANKS, Individually and in her official capacity as
Secretary of the Louisiana Department of Social Services;
Defendants-Appellants.
_____________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
_____________________________________________
August 25, 2000
Before GARWOOD, WIENER, and DENNIS, Circuit Judges.
WIENER, Circuit Judge:
Defendants-Appellants, all officials of the Louisiana
Department of Social Services (collectively “LDSS”), appeal from
the district court’s denial of their motions to dismiss on grounds
of sovereign immunity (sometimes, “Eleventh Amendment immunity”) a

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1 29 U.S.C. §§ 2601 et seq.
2
complaint brought against LDSS by Plaintiff-Appellant Janice
Kazmier under the Family and Medical Leave Act (“FMLA”).1 As we
conclude that the particular provisions of the FMLA that are at
issue in the instant case do not validly abrogate the State of
Louisiana’s sovereign immunity, we reverse and remand with
instructions to dismiss Kazmier’s action.
I
Facts and Proceedings
Kazmier was fired by LDSS after she took several weeks leave
during 1995: She took at least one month of leave beginning in May
of 1995 after breaking her arm in a bicycling accident, and took at
least one more week of leave at the beginning of October 1995 to
care for her terminally ill father. In addition, after breaking
her wrist later that month, Kazmier failed to return to work for
the rest of the calendar year. As a result of Kazmier’s absences,
LDSS terminated her employment on January 4, 1996.
Kazmier filed suit against LDSS in federal district court
early in 1997, alleging that LDSS’s termination of her employment
violated several provisions of the FMLA. LDSS filed a motion to
dismiss, contending that Kazmier was barred by the Eleventh
Amendment from prosecuting her suit in federal court. The United
States intervened on Kazmier’s side, arguing that the FMLA validly
abrogates the States’ Eleventh Amendment immunity. The district
court denied LDSS’s motion to dismiss, and this appeal followed.

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2 See, e.g., Kimel v. Florida Board of Regents, __ U.S. __,
__, 120 S.Ct. 631, 640 (2000) (“[T]he Constitution does not provide
for federal jurisdiction over suits against nonconsenting States”).
3 Id at __, 120 S.Ct. at 644.
4 Seminole Tribe of Florida v. Florida, 517 U.S. 44, 55
(1996).
5 Id.
3
II
Analysis
The Eleventh Amendment is rooted in the principle, imprecisely
stated in its text but implicit in the federal structure of the
Constitution, that the federal courts do not have jurisdiction to
hear suits brought by private individuals against nonconsenting
States.2 This jurisdictional bar is not, however, absolute: The
States’ sovereign immunity can be abrogated by Congress pursuant to
its enforcement power under Section 5 of the Fourteenth Amendment.3
The validity of a purported abrogation is assessed judicially by
applying a two-part test: First, “Congress must unequivocally
express[] its intent to abrogate the immunity”;4 and, second,
Congress must act “pursuant to a valid exercise of power.”5
Kazmier contends that the FMLA validly abrogates the States’
Eleventh Amendment immunity, making LDSS amenable to suit in
federal court. Conceding arguendo that in enacting the FMLA
Congress unequivocally expressed its intent to abrogate such
immunity, LDSS insists that Congress failed to effect the intended
abrogation pursuant to a valid exercise of power. Thus, the only
issue before us is whether Congress’s intent to make the pertinent

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6 U.S. CONST. amend. XIV, § 1.
7 U.S. CONST. amend. XIV, § 5.
8 Kimel, __ U.S. at __, 120 S.Ct. at 644 (citations omitted).
9 Id (quotations and citations omitted).
4
provisions of the FMLA applicable to the States was validly enacted
into law pursuant to Congress’s enforcement power under Section 5
of the Fourteenth Amendment.
Section 1 of the Fourteenth Amendment states that “[n]o State
shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any State
deprive any person of life, liberty, or property, without due
process of law; nor deny to any person within its jurisdiction the
equal protection of the laws.”6 Section 5 of the Fourteenth
Amendment provides that “[t]he Congress shall have power to
enforce, by appropriate legislation, the provisions of this
article.”7 Kazmier and the United States argue that the FMLA is a
valid congressional enforcement of the Fourteenth Amendment’s
guarantee that “[n]o State shall... deny to any person within its
jurisdiction the equal protection of the laws.”
“It is for Congress in the first instance to determine whether
and what legislation is needed to secure the guarantees of the
Fourteenth Amendment, and its conclusions are entitled to much
deference.”8 The Supreme Court has noted, however, that “the same
language that serves as the basis for the affirmative grant of
congressional power also serves to limit that power.”9 “Congress

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10 Id (quotations and citations omitted).
11 Id (quotations and citations omitted).
12 Id (quotations and citations omitted).
13 __ U.S. __, 120 S.Ct. 631 (2000).
5
cannot decree the substance of the Fourteenth Amendment’s
restriction on the States.... It has been given the power <to
enforce,’ not the power to determine what constitutes a
constitutional violation.”10 Thus, Congress’s exercise of its
Section 5 enforcement power is always authorized when enacting
strictly remedial legislation that narrowly targets clearly
unconstitutional State conduct.11 In contrast, Congress can enact
broad prophylactic legislation that prohibits States from engaging
in conduct that is constitutional only when there is “a congruence
and proportionality between the injury to be prevented or remedied
and the means adopted to that end.”12
The Supreme Court’s recent decision in Kimel v. Florida Board
of Regents13 provides the clearest guidance for determining whether
legislation that purports to enforce the Fourteenth Amendment’s
Equal Protection Clause against the States is “congruent and
proportional.” A two part test emerges from Kimel. At the first
step, we begin our analysis by determining what type of
constitutional violation the statute under review is designed to
prevent. The outermost limits of Congress’s potential authority to
enact prophylactic legislation is directly linked to the level of
scrutiny that we apply in assessing the validity of discriminatory

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14 Kimel, 527 U.S. at __, 120 S.Ct. at 647.
15 Kimel, 527 U.S. at __, 120 S.Ct. at 646.
16 Id.
17 City of Boerne v. Flores, 521 U.S. 507, 531 (1997); Florida
Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527
U.S. 627, __, 119 S.Ct. at 2207 (1999).
6
classifications of the targeted type. If legislation “prohibits
substantially more state employment decisions and practices than
would likely be held unconstitutional under the applicable equal
protection... standard,”14 the legislation will not be considered
congruent and proportional. Thus, Congress’s authority is most
broad when “we require a tight[] fit between [the discriminatory
classifications in question] and the legitimate ends they serve,”
as we do with classifications that are based on race or sex.15
Conversely, congressional authority is most narrow when Congress
tackles discrimination on the basis of classifications that are not
constitutionally suspect: “States may discriminate on the basis of
[such classifications] without offending the Fourteenth Amendment
if the... classification in question is rationally related to a
legitimate state interest.”16
Having established, at Kimel’s first step, the limits of
Congress’s potential authority under Section 5, we examine, at
Kimel’s second step, the legislative record of the statute under
review to see whether it contains evidence of actual constitutional
violations by the States sufficient to justify the full scope of
the statute’s provisions.17 The respect that must be accorded the

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18 Kimel, 527 U.S. at __, 120 S.Ct. at 648-50.
19 Id, 527 U.S. at __, 120 S.Ct. at 647.
20 29 U.S.C. § 2612(a)(1).
7
States as independent sovereigns within our federal system prevents
Congress from restraining them from engaging in constitutionally
permissible conduct based on nothing more than the mere invocation
of perceived constitutional bogeymen: Legislation that abrogates
immunity must be proportional with and congruent to an identified
pattern of actual constitutional violations by the States.18 If
Congress “fail[s] to [include in the legislative record of a
prophylactic statute any evidence of a] significant pattern of
unconstitutional discrimination” by the States, then the statute
will not be held to abrogate the States’ sovereign immunity.19
A. Scope of Review
Section 2612(a)(1) of the FMLA20 entitles eligible employees
to take leave totaling twelve weeks per calendar year:
(A) Because of the birth of a son or daughter and in
order to care for such son or daughter;
(B) Because of the placement of a son or daughter with
the employee for adoption or foster care;
(C) In order to care for the spouse, or a son,
daughter, or parent, of the employee, if such
spouse, son, daughter, or parent has a serious
health condition.
(D) Because of a serious health condition that makes
the employee unable to perform the functions of the
position of such employee.
Kazmier has alleged that her employment with LDSS was terminated
because she took leave (1) to care for her terminally father and
(2) to recuperate from personal injuries. Consequently, of the

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21 We do note, however, that in a recent decision the Eleventh
Circuit chose to analyze the validity of the FMLA’s purported
abrogation of State sovereign immunity on a subsection-by-
subsection basis. See Garrett v. University of Alabama, 193 F.3d
1214 (11th Cir. 1999).
22 The FMLA’s statement of purpose reflects that one of its
primary purposes is to “minimize[] the potential for employment
discrimination on the basis of sex by ensuring generally that leave
8
section’s four justifications for leave under the FMLA, only
subsections (C) and (D) are implicated in the instant case.
As subsections (C) and (D) clearly authorize leave on
different substantive grounds, logic dictates that each must be
subjected to an independent “congruence and proportionality”
analysis. Although we have been unable to locate any case law
expressly addressing the issue of severability in the context of
congruence and proportionality analysis,21 we discern no reason why
the provisions of one of the FMLA’s subsections could not validly
abrogate the States’ Eleventh Amendment immunity even if the
provisions of some or all of the remaining subsections fail to do
so. We shall therefore evaluate the congruence and proportionality
of subsections (C) and (D) separately.
B. Subsection (C)
This subsection requires employers to permit each eligible
employee to take some or all of his 12 weeks FMLA annual leave to
provide care for family members suffering from serious health
conditions. Congress’s express intent in enacting this provision
was to prevent employers from granting such leave discriminatorily
on the basis of sex.22 Specifically, Congress was responding to

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is available for... compelling family reasons, on a gender-neutral
basis.” 29 U.S.C. § 2601(b)(4).
23 See The Parental and Medical Leave Act of 1987: Hearings on
S.249 Before the Subcommittee on Children, Families, Drugs and
Alcoholism of the Senate Committee on Labor and Human Resources,
Part 2, 100th Cong. 536 (1987) (Statement of Professor Susan Deller
Ross, Georgetown University Law Center) (“T]here are a number of
studies ... in which it’s shown that employers in this country that
are giving family leaves to their workers are not giving it non-
discriminatorily, they are, by and large, giving it only to women,
not to men. It’s fairly flagrant discrimination.”)
24 See The Family and Medical Leave Act of 1991: Hearing on S.5
Before the Subcommittee on Children, Family, Drugs and Alcoholism
of the Senate Committee on Labor and Human Resources, 102d Cong. 10
(1991) (Statement of Senator Adams) (“[T]he reality today is that
women are the primary caregivers for elderly parents. ... It is the
daughters, whether biological or through marriage, that account for
the majority of caregivers.”).
25 See United States v. Virginia, 518 U.S. 515, 533 (1996).
9
findings that private sector employers frequently discriminate
against men in granting leave to provide family care.23 Testimony
before Congress indicated that the perverse effect of this reverse
discrimination has actually been to push women out of the work
force, largely because such discrimination is both rooted in and
reinforces the stereotype that women will assume the role of the
primary family care-giver. According to the testimony before
Congress, such stereotypes make employers less willing to hire
women because of the expectation that women will take significantly
more leave time to care for members of their families than will
men.24
Discrimination on the basis of sex is subject to ”heightened”
constitutional scrutiny.25 Sexual classifications are

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26 Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724
(1982) (citation omitted).
27 See City of Boerne, 521 U.S. at 531-32; Florida Prepaid, 527
U.S. at __, 119 S.Ct. at 2207; Kimel, __ U.S. at __, 120 S.Ct. at
648-50.
10
constitutional only if they serve “important governmental
objectives and ... the discriminatory means employed are
substantially related to the achievement of those objectives.”26
Thus, Congress potentially has wide latitude under Section 5 to
enact broad prophylactic legislation designed to prevent the States
from discriminating on the basis of sex.
The mere invocation by Congress of the specter of sex
discrimination, however, is insufficient to support the validity of
legislation under Section 5, at least when the statute at issue
prohibits the States from engaging in a significant amount of
conduct that is constitutional. Broad, prophylactic legislation
must be congruent with and proportional to actual, identified
constitutional violations by the States.27 Yet in enacting the
FMLA, Congress identified no pattern of discrimination by the
States with respect to the granting of employment leave for the
purpose of providing family care. Congress did make findings of
such discrimination in the private sector, but such evidence is not
imputable to the public sector to validate abrogation: The Supreme
Court ruled in Kimel that findings of private sector discrimination
do not create an inference that similar discrimination has occurred

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28 Kimel, __ U.S. at __, 120 S.Ct. at 649 (“Finally, the United
States’ argument that Congress found substantial age discrimination
in the private sector... is beside the point. Congress made no
such findings with respect to the States.”).
29 It would be perfectly constitutional, for example, for a
State to provide employees with only eight weeks of leave per year
to provide family care.
11
in the public sector.28 Simply put, we will not infer from private
sector conduct that the States are wilfully violating their
constitutional duty to refrain from engaging in sex discrimination.
It is indisputable that Subsection (C) constitutes broad,
prophylactic legislation: There is nothing in the Constitution
that even closely approximates either a duty to give all employees
up to twelve weeks of leave per year to care for ailing family
members or a right of an employee to take such leave. In fact, as
the legislative record for this provision is devoid of evidence of
public sector discrimination, there simply are no identified
constitutional violations to which the provision could possibly be
“congruent and proportional.” If subsection (C) were solely
remedial in nature, the absence of evidence of constitutional
violations might not present a problem. But the provisions of this
subsection are, instead, prophylactic in nature, purporting to
prohibit the States from engaging in a broad swath of conduct that
is not per se violative of the Equal Protection Clause.29 We
conclude, therefore, that Congress did not validly enact subsection
(C) pursuant to its enforcement power under Section 5; that
subsection (C) does not effectively abrogate the States’ Eleventh

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30 See Sims v. University of Cincinnati, __ F.3d __, 2000 WL
973501 (6th Cir. 2000) (reaching the same result).
31 See H.R. Rep. No. 99-699, Part 2, at 25 (1986) (“[A] worker
who has lost a job due to a serious health condition faces future
discrimination in finding a job which has even more devastating
consequences for the worker and his or her family.”); Family and
Medical Leave Act of 1989: Hearing on S.345 Before the
Subcommittee on Children, Family, Drugs, and Alcoholism of the
Senate Committee on Labor and human Resources, 101st Cong. 26-27
(1989) (testimony of Ms. Barbara Hoffman, Vice President of the
National Coalition for Cancer Survivorship) (stating that the
“disparate treatment” of cancer survivors “includes dismissal,
demotion, and loss of benefits” and that “[s]uch discrimination
against qualified employees costs society millions of dollars in
lost wages, lost productivity and needless disability payments”).
32 See 29 U.S.C. § 2601(a)(6) (“[E]mployment standards that
apply to one gender only have serious potential for encouraging
employers to discriminate against employees and applicants for
employment who are of that gender.”).
12
Amendment immunity; and that Kazmier cannot enforce that subsection
against the State of Louisiana in federal court.30
C. Subsection (D)
This subsection requires employers to permit each eligible
employee to take some or all of his 12 weeks FMLA annual leave to
address the employee’s own “serious health conditions.” Congress’s
express intent in enacting this provision was to prevent employers
from discriminating on the basis of temporary disability.31 The
legislative record contains the additional suggestion that Congress
meant for this provision to prevent discrimination against women on
the basis of pregnancy-related disability as well.32 Kazmier and
the United States argue that this latter concern indicates that,
like subsection (C), subsection (D) is ultimately designed to
prevent discrimination on the basis of sex.

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33 Geduldig v. Aiello, 417 U.S. 484 (1974).
34 See The Parental and Medical Leave Act of 1986: Joint
Hearing on H.R. 4300 Before the Subcommittee on Labor-Management
Relations and the Subcommittee on Labor Standards of the House
Committee on Education and Labor, 99th Cong. 36, 42 n.48 (1986)
(excerpt from brief of the American Civil Liberties Union).
13
As an initial matter, we reject the notion that subsection (D)
targets sex discrimination. The legislative record demonstrates
that Congress was concerned with discrimination on the basis of
pregnancy, which is not the same thing as broad based
discrimination on the basis of sex. The Supreme Court has held
that discrimination on the basis of pregnancy does not violate the
Equal Protection Clause.33 To the extent that subsection (D)
targets such discrimination, it does not fall within Congress’s
enforcement powers under Section 5 of the Fourteenth Amendment.
The United States asserts that even though subsection (D)
expressly targets only discrimination in the granting of employment
leave, the provision was nevertheless intended to have the
secondary effect of preventing employers from engaging in
discriminatory hiring practices. Specifically, the United States
asserts that Congress enacted subsection (D) in response to
evidence indicating that employers often are reluctant to hire
women because of “the assumption that women will become pregnant
and leave the labor market.”34 The United States asks us to infer
from Congress’s consideration of this evidence that even if
subsection (D) is not designed to prevent discrimination on the
basis of sex in the granting of leave, it is nevertheless designed

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35 See Geduldig v. Aiello, 417 U.S. 484 (1974).
14
to prevent discrimination on the basis of sex in the making of
hiring decisions.
This argument is flawed on a number of levels. First, we note
that, of Section 2612(a)(1)’s four justifications for leave,
subsection (A) is the one that most plausibly is designed to combat
pregnancy-related discrimination, as that subsection entitles
employees to take leave “[b]ecause of the birth of a son or
daughter and in order to care for such son or daughter.” Second,
to the extent that subsection (D) does target discrimination
related to pregnancy, the argument advanced by the United States
appears impermissibly to conflate discrimination on the basis of
pregnancy with discrimination on the basis of sex, an approach
that, as we already have noted, has been rejected by the Supreme
Court.35
Ultimately, however, we need not delve too deeply into the
true nature of the targeted discrimination, as we find it virtually
impossible to conceive how requiring employers to permit employees
to take 12 weeks of leave for serious health conditions could
possibly have the effect of preventing sex discrimination in hiring
practices. If the United States is correct in surmising that
employers are reluctant to hire women for fear that they will
become pregnant and “leave the labor market,” then the only
possible effect on hiring practices of expressly mandating leave
for pregnancy (among other serious health conditions) would be to

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36 We note that pregnancy does fall within the definition of
disability that is supplied by the statute, as pregnancy is a
serious health condition that may affect the ability of an employee
to perform work.
37 City of Cleburne v. Cleburne Living Center, 473 U.S. 432,
(1985).
38 Id at 442 (“[W]e conclude for several reasons that the Court
of Appeals erred in holding mental retardation a quasi-suspect
classification calling for a more exacting standard of judicial
review than is normally accorded economic and social
legislation.”).
15
reinforce such fears and make employers even more reluctant to hire
women. A provision mandating that employers grant leave for
serious health conditions cannot be viewed as reasonably calculated
to achieve the objective of making employers less disinclined to
hire women. Again, therefore, we reject the notion that subsection
(D) is designed to combat sex discrimination.
What is patently clear, though, is that subsection (D) was
designed by Congress to prevent discrimination on the basis of
temporary disability.36 Unlike discrimination on the basis of sex,
however, discrimination on the basis of disability is subject only
to the slightest of scrutiny under the Equal Protection Clause.37
States may discriminate on the basis of disability without
offending the Fourteenth Amendment as long as the classification in
question is rationally related to a legitimate state interest.38
In this respect, disability discrimination is similar to age
discrimination, so subsection (D) is properly subject to the kind
of analytical approach employed by the Supreme Court in Kimel to
determine whether the Age Discrimination in Employment Act (“ADEA”)

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39 29 U.S.C. § 621 et seq.
40 Kimel, __ U.S. at __, 120 S.Ct. at 647.
41 See id at 645 (“Initially, the substantive requirements the
ADEA imposes on state and local governments are disproportionate to
any unconstitutional conduct that conceivably could be targeted by
the Act.”).
16
validly abrogates State sovereign immunity.39
Even a cursory look makes clear that, like the ADEA, the FMLA
“prohibits substantially more state employment decisions and
practices than would likely be held unconstitutional under the
applicable equal protection, rational basis standard.”40 It would
not, for example, be unconstitutional for a State to permit its
employees to take only eight weeks leave per year because of
serious health conditions. For that matter, it would not be
unconstitutional for a State to allow its employees no health
related leave time at all, as long as in doing so the State applied
the rule on a nondiscriminatory basis. In sum, subsection (D)
prohibits the States from engaging in such a wide array of
perfectly constitutional practices that we have difficulty
conjuring up any unconstitutional conduct by the States to which
that subsection’s proscriptions might possibly be proportional and
congruent.41
We need not engage in such counterfactual speculation,
however, to resolve the instant case. The legislative record for
the FMLA is devoid of any evidence of a pattern of discrimination
by the States against the temporarily disabled; and the public

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42 Id at 649 (“[T]hat Congress found substantial...
discrimination in the private sector... is beside the point.
Congress made no such findings with respect to the States.”).
43 Id at 650.
44 Florida Prepaid, 527 U.S. at __, 119 S.Ct. at 2207 (citation
and quotations omitted).
45 136 F.3d 430 (5th Cir. 1998).
46 42 U.S.C. §§ 12131-12165 (1994).
17
sector cannot be tarred with the brush of private sector
discrimination to create an inference of unconstitutional
discrimination by the States.42 “Congress’ failure to uncover any
significant pattern of unconstitutional discrimination here
confirms that Congress had no reason to believe that broad
prophylactic legislation was necessary in this field.”43 Without
direct evidence of substantial unconstitutional discrimination by
the States, there simply is no “Fourteenth Amendment evil” to which
subsection (D) could possibly be congruent and proportional.44 We
conclude, therefore, that Congress did not validly enact subsection
(D) pursuant to its enforcement power under Section 5; that
subsection (D) does not effectively abrogate the States’ Eleventh
Amendment immunity; and that Kazmier cannot enforce that subsection
against the State of Louisiana in federal court.
As a final point, we reject the argument advanced by Kazmier
and the United States that, by stare decisis, our holding in
Coolbaugh v. State of Louisiana,45 to the effect that Title II of
the Americans with Disabilities Act of 1990 (“ADA”)46 does validly

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47 See Scott v. University of Mississippi, 148 F.3d 493 (5th
Cir. 1998), overruled by Kimel, __ U.S. __, 120 S.Ct. 631 (2000).
18
abrogate the States’ Eleventh Amendment immunity, controls our
decision today with respect to the validity of Congress’s
abrogation of State sovereign immunity by enacting subsection (D).
As an initial matter, we note that the continuing validity of
Coolbaugh has been called seriously into question by the Supreme
Court’s subsequent decision in Kimel which, in holding that
Congress did not validly abrogate State sovereign immunity in
enacting the ADEA, reversed another panel decision from this
Circuit.47 The Coolbaugh panel appears to have inferred a pattern
of unconstitutional discrimination by the States from evidence in
the ADA’s legislative record pertaining solely to discrimination in
the private sector, an inference that the Court in Kimel made clear
is impermissible. We need not re-examine the holding of Coolbaugh
in detail, however, because the ADA is an entirely different
statute than the FMLA, with its own distinguishable substance and
its own distinguishable legislative record. For present purposes
we need observe only that the legislative record of the FMLA,
lacking any evidence whatsoever of unconstitutional discrimination
by the States, will not support abrogation of State sovereign
immunity, at least not with respect to those of the FMLA’s
prophylactic provisions that are at issue in this case. Coolbaugh
therefore does not proscribe our concluding that, like subsection
(C), subsection (D) was not validly enacted pursuant to Congress’s

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48 See Hale v. Mann, __ F.3d __, 2000 WL 675209 (2d Cir. 2000)
(reaching the same result).
49 Dissent at 2.
50 17 U.S. (4 Wheat.) 316, 421 (1819).
51 Although the dissent accuses us of obstructing coherent
dialogue by conflating rational means review with rational basis
review, the dissent fails to articulate any substantive difference
between rational basis review and the standard that it proposes.
Rather than fence with the ghost of the dissent’s imagined
standard, we have labeled the dissent’s approach “rational basis
review” in an attempt to lend it an established framework of
substantive content.
19
enforcement power under Section 5 of the Fourteenth Amendment and
therefore does not abrogate the States’ Eleventh Amendment
immunity.48
III
A Response to the Dissent
The extensive research that has obviously gone into the
dissent, and the scholarly work that it has produced, merit a brief
response. The dissent chides us for “look[ing] at Boerne and all
of the prior [Eleventh Amendment] jurisprudence through the wrong
end of Kimel’s perspective glass.”49 It then attempts to
reinterpret the Supreme Court’s recent Eleventh Amendment
jurisprudence through the antient lens of Chief Justice Marshall’s
1819 opinion in McCulloch v. Maryland.50 The thrust of the
dissent’s argument is that the “congruence and proportionality”
test employed by the Supreme Court in Kimel, City of Boerne, and
Florida Prepaid is in actuality nothing more than a “rational
basis” standard of review.51 The dissent contends that if we

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52 We note in passing that the FMLA does not directly prohibit
sex discrimination at all. For example, under the FMLA it would be
perfectly permissible for an employer to grant 15 weeks of leave
per year to female employees while granting only 12 weeks of leave
per year to males.
53 521 U.S. 507, 516 (1997).
20
conclude that the FMLA is rationally related to deterring sex
discrimination (which the dissent apparently concludes it to be),52
we are obligated to uphold the validity of its purported abrogation
of State sovereign immunity.
The dissent’s approach to Eleventh Amendment jurisprudence is
not supported by the law, and even as a matter of legal theory it
is riddled with problems. The dissent contends that “Kimel and
[City of] Boerne reaffirmed and did not limit or replace the
McCulloch ‘rational means’ standard.” In reality, however,
McCulloch is nowhere mentioned in Kimel, and City of Boerne merely
cites McCulloch for the well-established and universally accepted
truism that “[u]nder our Constitution, the Federal government is
one of enumerated powers.”53 Indeed, the Court did not use the
phrases ‘rational means’ or ‘necessary and proper’ even once in
either of those two opinions. Simply put, McCulloch has absolutely
nothing to do with the Supreme Court’s recent Eleventh Amendment
jurisprudence: Chief Justice Marshall’s interpretation of the
Necessary and Proper Clause was certainly a landmark decision with
far-reaching implications, but it sheds no useful light on the
difficult and intractable problems entailed in reconciling
Congress’s enforcement powers under Section 5 of the Fourteenth

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54 See, e.g., McGowan v. Maryland, 366 U.S. 420 (1961).
55 “Rational basis” review is an equal protection standard
rooted in Section 1 of the Fourteenth Amendment, whereas the
“congruence and proportionality” test defines the outermost limits
of Congress’s enforcement powers under Section 5 of the Fourteenth
Amendment.
21
Amendment with the bedrock principles of State sovereign immunity
embodied in the Eleventh Amendment.
Moreover, the dissent’s contention that the Supreme Court’s
congruence and proportionality test amounts to nothing more than a
rational basis standard of review just cannot be right. First, the
Supreme Court is well accustomed to using a rational basis standard
of review in testing the validity of legislation;54 if that is the
only yardstick that the Court meant to apply in the context of the
Eleventh Amendment, it would not have gone to the trouble of
articulating a separate congruence and proportionality test.
Second, neither the ADEA (the statute at issue in Kimel) nor RFRA
(the statute at issue in City of Boerne) can be fairly
characterized as irrational, yet the Court struck down both of
those statutes after applying its congruence and proportionality
test. It could not be clearer that congruence and proportionality
is a considerably more stringent standard of review than is
rational basis. Indeed, these two tests bear little resemblance to
one another, as they are rooted in entirely separate clauses of the
Constitution.55 Professor Laurence Tribe might agree with the
dissent, which cites several of his pre-Kimel articles, but the
support of even so prominent an academician is an inadequate

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56 See S.Rep. No. 103-3, at 14-15 (presenting statistics
relating to parental leave for “employees working in private
business” and a survey of “253 U.S. corporations”).
22
substitute for rigorous adherence to recent Supreme Court
precedent.
At its close, the dissent argues that the legislative record
compiled by Congress in enacting the FMLA contains sufficient
evidence of unconstitutional discrimination by the States to
support abrogation of State sovereign immunity with respect to 29
U.S.C. § 2612(a)(1)(C) and (D). Despite scouring what it admits to
be nine years of legislative history, the dissent is able to point
to only six statements made during congressional hearings, which,
it contends, demonstrate that in enacting Subsections (C) and (D)
Congress was attempting to redress a pervasive pattern of sex-based
discrimination that existed in the public sector at the time that
the FMLA was enacted. Even a cursory review of those six
statements, however, reveals that they are not in the least
probative of the question before us. Every single one of the six
quotations relates solely to the issue of parental leave, an issue
that is not addressed by Subsections (C) and (D) of the FMLA and
that we have expressly declined to address and rule on in deciding
the case before us. Further evidence of the unpersuasiveness of
the six statements is the fact that one of them deals solely with
discrimination in the private sector;56 one of them deplores the
absence of robust parental leave policies in the public and private
sectors, but without making any mention whatsoever of sex-based

-- 22 of 67 --

57 See Parental and Medical Leave Act of 1986: Hearings on H.R.
4300 Before the Subcomm. On Labor Management Standards, 99th Cong.,
30, 147 (testimony of Meryl Fran, Director of the Yale Bush Center
Infant Care Leave Project, deploring the fact that “American women
have no statutory right to parental leave”).
58 See Parental and Medical Leae Act of 1987: Hearings on S.249
Before the Subcomm. On Children, Family, Drugs and Alcoholism, 100th
Cong., 338 (testimony of Gerald McEntee, International President,
American Federation of State, County, and Municipal Employees, that
“one conclusion which can be drawn is that a vast number of
employees in the State and local government sector already have the
right to take unpaid parental leave or maternity leave for periods
in excess of 18 weeks. Ninety percent of the employees covered in
the sample, or 650,000 people, already had the right to a leave of
four months or more. Clearly, parental leave is a fact of life in
the public sector. ... And if government at all levels can live
with unpaid parental leave, then so can private industry.”).
59 See Fl. St. § 110.221 (1991) (providing parental leave “for
the father or mother of a child who is born to or adopted by that
parent.”). The fact that Florida changed its parental leave policy
in 1991 to make leave available to parents of both sexes indicates
that other testimony relied on by the dissent, stating that in 1989
13 states granted family leave to women but not to men, was
similarly outdated and unreliable by the time that the FMLA was
enacted in 1993.
23
discrimination in the granting of such leave;57 a third actually
lauds the public sector for making parental leave readily available
to employees, contending that the public sector has set an example
that the private sector should emulate;58 and a fourth, which was
made during a hearing held in 1987 and which asserted that at that
time —— 13 years ago —— the State of Florida granted its employees
maternity leave but not paternity leave, was no longer true when
the FMLA was enacted in 1993, by which time Florida had already
enacted a general parental leave policy available to both sexes on
a neutral basis.59 Whether the two or three remaining anecdotal and
outdated statements on which the dissent is left to rely would be

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60 __ U.S. at __, 2000 WL 14165 at *13, citing City of Boerne,
521 U.S. at 531.
61 Dissent at 43 (internal quotation marks omitted).
24
sufficient to support abrogation of State sovereign immunity with
respect even to legislation pertaining to parental leave is thus
subject to considerable doubt: In Kimel, the Supreme Court
explained that its ruling in City of Boerne was rooted in its
conclusion that “Congress had uncovered only ‘anecdotal evidence’
[of discrimination by the State] that, standing alone, did not
reveal a ‘widespread pattern of religious discrimination in this
country.’”60 We note again, however, that the validity of the
FMLA’s parental leave provisions is not at issue in this case.
Today we hold only that Congress failed to present sufficient
evidence of unconstitutional discrimination by the States to
support abrogation of State sovereign immunity with respect to
Subsections (C) and (D), both of which the dissent fails to address
squarely.
In fact, the dissent devotes no analysis at all to Subsection
(D): Although it baldly declares that it cannot agree “that the
legislative record for this provision is devoid of evidence of
public sector discrimination against the temporarily disabled as
this was precisely what the PDA and then the FMLA were enacted in
response to,”61 the dissent does not support its disagreement by
pointing to any evidence pertaining to such discrimination by the
States. Indeed, as the temporarily disabled are not a

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62 See Dissent at 10-14 (noting that Congress is entitled to
substantially less deference in enacting prophylactic legislation
that is purportedly designed to prevent discrimination on the basis
of classifications that are not constitutionally suspect).
63 The dissent appears to take the position that we must either
uphold or strike down the FMLA in its entirety, despite the fact
that only two of its four substantive provisions are at issue here.
See Dissent at 29. The dissent cites no authority for its
position, even though it would require breaking with both the
Second and Eleventh Circuits. See Garrett, 193 F.3d 1214 (11th Cir.
1999), Hale, __ F.3d __, 2000 WL 675209 (2d Cir. 2000). Moreover,
the dissent’s all-or-nothing approach would give Congress virtually
unlimited authority to pass clearly unconstitutional provisions
merely by tacking them onto statutes that are otherwise
constitutional, a result that simply cannot be right.
25
constitutionally suspect class, the dissent’s own analysis would
seem to indicate that Subsection (D) is entitled to substantially
less deference than are the other sections of the FMLA.62
Unfortunately, the dissent’s total failure to analyze Subsections
(C) and (D) individually precludes a more detailed response to the
positions that it takes.63
In the end, the dissent’s citations to the legislative record
only serve to reinforce our conclusion that the FMLA is not
designed to prevent discrimination at all, but rather is crafted to
provide employees throughout the nation with a substantive
statutory right to take leave from work for family and medical
reasons. The dissent has managed to find but two potentially
relevant remarks —— stray ones at that —— pertaining to
discrimination in the public sector, each of which was made
offhand, does not appear to have been solicited by Congress, and is
greatly overshadowed by the speaker’s plea that Congress enact a

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64 See, e.g., Parental and Medical Leave Act of 1987: Hearings
on S.249 Before the Subcomm. On Children, Family, Drugs and
Alcoholism, 100th Cong., 365-70 (testimony of Elaine Gordon, Member
of the Florida House of Representatives, stating that “[t]here must
be come official commitment to acknowledging motherhood as a
societal function and stating that those who combine work and
childbearing shall not be penalized,” and noting that to that end
she had “introduced a bill relating to maternity leave...
propos[ing] to extend maternity leave beyond state employees and
encompass all employees, public and private”); Parental and Medical
Leave Act of 1986: Hearings on H.R. 4300 Before the Subcomm. On
Labor Management Standards, 99th Cong., 30, 147 (testimony of Meryl
Fran, Director of the Yale Bush Center Infant Care Leave Project,
deploring the fact that “American women have no statutory right to
parental leave” and making reference to a study she conducted
researching the availability of parental leave to women only).
26
statutory right to parental leave. In fact, in several instances
the congressional testimony cited by the dissent emphasizes the
paramount importance of maternity leave as distinguished from
paternity leave, ironic indeed considering the dissent’s attempt to
use this testimony to demonstrate that Congress’s primary concern
was that family and medical leave be dispensed on a non-
discriminatory basis.64
Although the dissent clearly agrees with the substantive goals
that Congress was trying to achieve in enacting Subsections (C) and
(D), the wisdom of individual policy decisions is irrelevant to
determining the validity of congressional abrogation of State
sovereign immunity. Because of the dissent’s failure to
acknowledge this basic legal principle, as well as the reasons
discussed above, we find the dissent unconvincing.
IV
Conclusion

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65 The claims brought against the defendants in their
individual capacities must be dismissed for lack of subject matter
jurisdiction because it is clear that the State of Louisiana is the
real party in interest. See Pennhurst State School & Hospital v.
Halderman, 465 U.S. 89, 101 (1984) (“The Eleventh Amendment bars a
suit against state officials when the state is the real,
substantial party in interest. ... [T]he general rule is that
relief sought nominally against an officer is in fact against the
sovereign if the decree would operate against the latter.”)
(citations omitted).
27
In light of the foregoing analysis, the district court’s
denial of LDSS’s motion to dismiss must be reversed and the case
remanded with instructions that both the official and the
individual capacity claims against the named defendants be
dismissed for lack of jurisdiction.65
REVERSED AND REMANDED, with instructions.

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28 28
DENNIS, Circuit Judge, dissenting. 1
The majority holds, incorrectly in my opinion, that the Family 2
and Medical Leave Act of 1993, 29 U.S.C. § 2601, et seq., (“FMLA”) 3
is not “appropriate legislation” by which Congress has power to 4
enforce the equal protection of the laws provision of the 5
Fourteenth Amendment and that, therefore, the FMLA does not validly 6
abrogate the Eleventh Amendment immunity barring suits by private 7
citizens against the states in federal courts. My colleagues have 8
been led into error by what I believe to be their misunderstanding 9
of Kimel v. Florida Board of Regents, 120 S.Ct. 631 (2000), City of 10
Boerne v. Flores, 521 U.S. 507 (1997), the prior Fourteenth 11
Amendment jurisprudence, and the legislative record of the FMLA. 12
For these reasons, I respectfully dissent. 13
I. 14
It is common ground in this litigation that Congress in the 15
FMLA unequivocally expressed its intent to abrogate state 16
immunities. See 29 U.S.C. §§ 2611(4)(a)(iii); 2617(a). However, 17
the majority holds that Congress did not enact the FMLA pursuant to 18
a valid exercise of power under the Fourteenth Amendment. The 19
majority bases its decision primarily on the Supreme Court’s recent 20
holding in Kimel. Kimel was decided subsequently to oral argument 21
in the present case, and the parties have not been afforded an 22
opportunity to brief us on Kimel’s meaning or effect. In the 23
absence of adversarial input, the majority looks at Boerne and all 24

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66As I understand the majority opinion, it views Kimel and City
of Boerne as a departure of revolutionary proportions from the
Court’s precedents and doctrine of stare decisis: Congress can no
longer enact any legislation to deter equal protection violations
of any kind without a legislative record evincing a significant
pattern of unconstitutional state discrimination, and preventive
legislation designed to deter state discrimination against suspect
or quasi-suspect classes is not appropriate if that legislation
prohibits substantially more constitutional than unconstitutional
state employment decisions or actions.
29 29
of the prior jurisprudence through the wrong end of Kimel’s 25
perspective glass. 26
The majority reads Kimel as standing for two propositions that 27
would drastically reduce Congress’ enforcement power under section 28
5 of the Fourteenth Amendment.66 First, the majority views the 29
phrase “congruence and proportionality,” used in Kimel and Boerne 30
to describe appropriate § 5 legislation, as placing new, stricter 31
limits on Congress’ exercise of its Fourteenth Amendment 32
enforcement power. Second, the majority reads the “congruent and 33
proportional” phrase as supplanting the “rational means” standard 34
for measuring Congressional power announced by Chief Justice 35
Marshall in McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 421 36
(1819), and applied to legislation enacted under section 5 of the 37
Fourteenth Amendment by the Supreme Court in Ex Parte Virginia, 38
100 U.S. (10 Otto) 339 (1879) and Katzenbach v. Morgan, 384 U.S. 39
641 (1966). Accordingly, the majority would apply its version of 40
the “congruent and proportional” requirement exclusively and across 41
the board, even to § 5 legislation designed to remedy or deter 42
governmental discrimination based on race, gender, or other suspect 43

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67The majority’s conflation of the “rational means” standard
for appropriate Congressional legislation under §5 of the
Fourteenth Amendment with the “rational basis” equal protection
scrutiny level is unfortunate and tends to obstruct coherent
dialogue. See Maj. Op., at 19-21. The majority confuses the
similar-sounding terms, “rational means” and “rational basis,”–
terms which in fact denote strategically different constitutional
30 30
or quasi-suspect classification. 44
The majority, in my opinion, is mistaken on both points. 45
First, neither Kimel nor Boerne held that Congress must establish 46
an evidentiary predicate for legislation that constitutes a 47
rational means of deterring and preventing governmental 48
discrimination against persons on the bases of race or gender. The 49
Supreme Court has never suggested that Congress cannot rely on the 50
Supreme Court’s recognition of such suspect or quasi-suspect 51
classes in enacting legislation to deter violations of their 52
constitutional rights. Because Congress’ express power to 53
legislatively enforce the Equal Protection Clause of the Fourteenth 54
Amendment is concurrent with the Court’s judicial power to enforce 55
the Amendment, Congress is not required to establish an evidentiary 56
predicate independent of the Court’s decisions identifying suspect 57
classes in order to enact legislation pursuant to § 5 to protect 58
individuals from the denial of the equal protection of the laws 59
based on race, gender or other suspect classifications. 60
Second, the Supreme Court in Kimel and Boerne reaffirmed and 61
did not limit or replace the McCulloch “rational means” standard as 62
adopted by Ex Parte Virginia, Katzenbach v. Morgan, and their 63
progeny.67 Thus, “congruence and proportionality” includes or is 64

-- 30 of 67 --

analyses. “Rational means” has been used to describe Congressional
legislation under §5 of the Fourteenth Amendment that appropriately
remedies or deters states’ violations of §1 of the Amendment. See
Katzenach v. Morgan, 384 U.S. 641, 650-651 (1966)(“[T]he McCulloch
v. Maryland standard is the measure of what constitutes
‘appropriate legislation’ under § 5 of the Fourteenth Amendment.”)
The rational basis test is used to determine whether state
discrimination against a non-suspect class is constitutionally
infirm. See Kimel, 120 S.Ct. 631, 646 (2000).
31 31
consistent with the meaning of “rational means” or “necessary and 65
proper” as defined by McCulloch, Ex Parte Virginia, Morgan, and 66
their progeny; or signifies the difference between legislation and 67
constitutional interpretation, as suggested by Boerne; or 68
recognizes the correlation between the ranges of judicial and 69
legislative powers to enforce the Equal Protection Clause on behalf 70
of suspect, quasi-suspect and non-suspect classes, as suggested by 71
Kimel; or all of the above. Assuming arguendo, however, that Kimel 72
or Boerne purports to place any new limits on Congress’ legislative 73
power, the majority errs in applying those limits to the present 74
case because the Court in Kimel made it very clear that its holding 75
does not apply to § 5 legislation designed to remedy or deter 76
governmental discrimination based on race or gender. 77
Undoubtedly, Congress is empowered by section 5 of the 78
Fourteenth Amendment to enact legislation prohibiting 79
constitutional state action if such a law is a rational means of 80
preventing or deterring unconstitutional governmental gender 81
discrimination. In the present case, the State has not attempted 82
to show that any particular governmental gender classification is 83
constitutional because it serves an important government objective. 84

-- 31 of 67 --

32 32
Consequently, the only question in the present case is whether the 85
FMLA, by prohibiting and requiring certain constitutional state 86
employment practices, is a rational means of preventing and 87
deterring unconstitutional governmental gender discrimination and 88
is therefore appropriate section 5 legislation. I believe that it 89
is self-evident that the FMLA is a rational means of deterring 90
gender-based discrimination and that the Constitution does not 91
require that Congress buttress its enactment with any particular 92
kind of legislative record. In the alternative, however, if common 93
knowledge and the statute itself are deemed to provide insufficient 94
illumination, the legislative history and legislative records of 95
the FMLA and other legislative activity from which it stems 96
abundantly demonstrate that it is a rational means to an 97
appropriate Congressional end. 98
99
II. 100
A. 101
As I read the Supreme Court’s opinions in Kimel and Boerne, 102
they do not drastically alter or restrict Congress’s authority 103
under section 5 of the Fourteenth Amendment to enforce the equal 104
protection of the laws provision of section 1 of the amendment as 105
the majority contends. The majority, in effect, concludes that 106
Kimel imposes a kind of dual probability-of-success and 107
substantial-evidence test for determining whether an act of 108
Congress passes muster as appropriate § 5 legislation. The 109

-- 32 of 67 --

33 33
majority states that: “A two part test [for determining whether 110
legislation is ‘congruent and proportional’] emerges from Kimel[:]” 111
[1]“ At the first step, we...determin[e] what type of 112
constitutional violation the statute under review is designed to 113
prevent.” [2] “[T]he legislation will not be considered congruent 114
and proportional[,]” and therefore, not appropriate, if: [a] “[the] 115
legislation prohibits substantially more state employment decisions 116
and practices than would likely be held unconstitutional under the 117
applicable equal protection standard,” or [b] “Congress fails to 118
include in the legislative record of a prophylactic statute any 119
evidence of a significant pattern of unconstitutional 120
discrimination by the States[.]” Maj.Op., at 5-7 (internal 121
quotation marks, brackets and footnotes omitted). I do not believe 122
that the majority’s two part probability-of-success and 123
substantial-evidence test “emerges from” or reasonably can be drawn 124
from Kimel. 125
Kimel affirms that “Congress’ § 5 power is not confined to the 126
enactment of legislation that merely parrots the precise wording of 127
the Fourteenth amendment. Rather Congress’ power ‘to enforce’ the 128
Amendment includes the authority both to remedy and to deter 129
violation of rights guaranteed thereunder by prohibiting a somewhat 130
broader swath of conduct, including that which is not itself 131
forbidden by the Amendment’s text.” Kimel, 120 S.Ct. at 644 132
(citing Boerne, 521 U.S. at 518) (quoting Fitzpatrick v. Bitzer 427 133
U.S. 455 (1976)); see also Laurence H. Tribe, American 134

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34 34
Constitutional Law § 5-16, at 949 (3d. Ed. 1999). It is true that 135
the Boerne Court stated that Congress does not have “the power to 136
decree the substance of the Fourteenth Amendment’s restrictions on 137
the States” and that“[t]he power to interpret the Constitution in 138
a case or controversy remains in the Judiciary.” Boerne 521 U.S. 139
at 519, 524. Nevertheless, the Court also made clear that under 140
section 5 Congress has broad freedom of choice or action in 141
determining the boundary between making a substantive change in the 142
constitution and an act of enforcement legislation, whether 143
remedial or deterrent. Id. at 518-19 (citing South Carolina v. 144
Katzenbach, 383 U.S. 301, 326 (1966)). 145
Militating against the majority’s notion of imposing a kind of 146
probability-of-success/substantial-evidence test upon Congress, 147
Kimel endorses Boerne’s reaffirmation of Congressional autonomy: 148
“As a general matter, it is for Congress to determine the method by 149
which it will reach a decision” as to the risk of Fourteenth 150
Amendment violations and the means by which particular evils should 151
be prevented or remedied. Boerne, 521 U.S. at 531-32; see also 152
Kimel, 120 S.Ct. at 644. The Court did not in either case lay down 153
any probability of success ratio, procedural method, evidentiary 154
rule or burden of proof standard for Congress to follow in 155
performing its separate and independent legislative function. The 156
Court did not presume to treat Congress as an inferior court or 157
administrative tribunal; to the contrary, Boerne and Kimel merely 158
illustrate that when Congress’ purpose is ambiguous, as it is apt 159

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35 35
to be in section 5 legislation concerned with governmental 160
discrimination against non-suspect classes or with generally 161
applicable state laws imposing merely incidental burdens on 162
religion, the Court will examine the legislative history and record 163
to determine Congress’ objective, just as it does when the meaning 164
of any Congressional act is vague or ambiguous. Thus, Kimel’s 165
commentary on the ADEA legislative record and history is directed 166
toward judicial review of section 5 legislation aimed at non- 167
suspect class discrimination, and is not intended as an improper 168
judicially imposed blanket stricture upon Congress’ legislative 169
process itself: 170
That the ADEA prohibits very little conduct likely to be 171
held unconstitutional, while significant, does not alone 172
provide the answer to our § 5 inquiry. Difficult and 173
intractable problems often require powerful remedies, and 174
we have never held that § 5 precludes Congress from 175
enacting reasonably prophylactic legislation. Our task 176
is to determine whether the ADEA is in fact just such an 177
appropriate remedy [to a state act of non-suspect 178
discrimination so irrational as to be unconstitutional 179
even under a rational basis review] or, instead, merely 180
an attempt to substantively redefine the States’ legal 181
obligations with respect to age discrimination. One 182
means by which we have made such a determination is by 183
examining the legislative record containing the reasons 184
for Congress’ action. 185
120 S.Ct. at 648. Indeed, Kimel reiterates “that lack of support 186
is not determinative of the § 5 inquiry.” Id. (citing Florida 187
Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 119 188
S.Ct. 2199, 2209-2210 (1999) (“lack of support in the legislative 189
record is not determinative.”); Boerne, 521 U.S. at 531-532 (“lack 190
of support in the legislative record...is not RFRA’s most serious 191

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36 36
shortcoming. Judicial deference, in most cases, is based not on 192
the state of the legislative record Congress compiles but ‘on due 193
regard for the decision of the body constitutionally appointed to 194
decide.’”) (quoting Oregon v. Mitchell, 400 U.S. 112, 207 (1970) 195
(Harlan, J.)); Boerne also reiterates that it did not intend “to 196
say, of course, that § 5 legislation requires...egregious 197
predicates.” Id. at 533; see also Lopez v. Monterey County, 525 198
U.S. 266 (1999)(no examination of legislative record by 8-1 199
majority upholding a deterrent provision of the Voting Rights Act 200
as appropriate legislation under § 2 of the Fifteenth Amendment); 201
id. at 295 (Thomas, J. dissenting). 202
The majority clearly misreads Kimel as mandating that Congress 203
use a judicially prescribed evidence and fact gathering methodology 204
or compile a judicially prescribed evidentiary predicate in 205
enacting any and every measure of section 5 legislation. Rather 206
than limit Congress’ discretion, however, Kimel reaffirms that “§ 207
5 is an affirmative grant of power to Congress” and that “‘[i]t is 208
for Congress in the first instance to ‘determin[e] whether and what 209
legislation is needed to secure the guarantees of the Fourteenth 210
Amendment,’ and its conclusions are entitled to much deference.’” 211
Kimel, 120 S.Ct. 644. Thus, nothing in Kimel restricts Congress’ 212
freedom to choose whether to take evidence, conduct hearings, seek 213
experts’ opinions, or to rely on history, experience with previous 214
legislation, notice of legislative facts, common knowledge, common 215
sense, or a combination of such factors. The Court has not and 216

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68 Accordingly, I disagree with the majority’s suggestion that
Kimel calls into question this circuit’s recognition of the
abrogation of Eleventh Amendment immunity by the ADA under section
5 of the Fourteenth Amendment in Coolbaugh v. State of Louisiana,
136 F.3d 430 (5th Cir. 1998). Compared to the FMLA, the ADA
presented a more debatable abrogation question, as it is designed
to remedy and deter discrimination on the basis of disability or
handicap, rather than race or gender. However, Coolbaugh is binding
on the present panel, regardless of the majority’s predilections.
See Neinast v. Texas, ___ F.3d ___, 2000 WL 827920 (5th Cir. 2000)
(post-Kimel case recognizing Coolbaugh as binding). Moreover,
reasonable jurists in other circuits do not read Kimel as auguring
Coolbaugh’s demise. See Kilcullen v. New York State Dept. of
Labor, 205 F.3d 77 (2nd Cir. 2000) (post-Kimel case finding the ADA
properly enacted under section 5); Erickson v. Board of Governors
of State Colleges and Universities for Northeastern Illinois
University, 207 F.3d 945, 953 (7th Cir. 2000) (Wood, J.,
dissenting). Consequently, it would be more appropriate for the
majority to consider how Coolbaugh might be reconciled with Kimel,
37 37
cannot legitimately impose any set form of judicially made 217
procedures, standards, or quantum of evidence requirements upon 218
Congress. Congress is a unique institution, separate and 219
independent from the judicial branch and is not required by the 220
constitution to operate like courts or follow the rules governing 221
adversarial litigation. 222
From the text of Kimel itself and from the context and 223
underpinnings of its analysis, it is evident that the majority is 224
mistaken in concluding that Kimel narrowed the scope of Congress’ 225
section 5 legislative enforcement powers or established a new 226
blanket requirement of adequate legislative records for all section 227
5 enforcement legislation. Rather, in my opinion, Kimel does not 228
attempt to make any new law but instead represents a 229
straightforward application of the well-settled principles 230
established by the Court’s prior jurisprudence.68
231

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rather than abandon Coolbaugh prematurely.
38 38
B. 232
Besides misconstruing Kimel and Boerne as placing new limits, 233
stricter than the “rational means” standard, on Congress’ 234
Fourteenth Amendment enforcement powers, the majority overlooks the 235
significant difference noted by these cases between a Congressional 236
act designed to deter governmental equal protection violations 237
against suspect or quasi-suspect classes and other types of 238
preventive legislation purportedly enacted pursuant to the 239
enforcement sections of the Reconstruction Amendments. Kimel 240
explicitly distinguished governmental discrimination on the basis 241
of age from state action based on race, gender, or other suspect 242
classifications: 243
Age classifications, unlike governmental conduct based on 244 race or gender, cannot be characterized as ‘so seldom 245 relevant to the achievement of any legitimate state 246
interest that laws grounded in such considerations are 247 deemed to reflect prejudice and antipathy.’ Cleburne v. 248 Cleburne Living Center, Inc., 473 U.S. 432, 440 (1985). 249 Older persons, again, unlike those who suffer 250
discrimination on the basis of race or gender, have not 251 been subjected to a ‘history of purposeful unequal 252 treatment.’ Murgia, supra, at 313, (quoting San Antonio 253 Independent School Dist. v. Rodriguez, 411 U.S. 1, 28 254
(1973)). Old age also does not define a discrete and 255 insular minority because all persons, if they live out 256
their normal life spans, will experience it. 257 Accordingly, as we recognized in Murgia, Bradley, and 258
Gregory, age is not a suspect classification under the 259 Equal Protection Clause. See, e.g., Gregory, supra, at 260 470; Bradley, supra, at 97; Murgia, supra, at 313-314. 261 States may discriminate on the basis of age without 262
offending the Fourteenth Amendment if the age 263 classification in question is rationally related to a 264 legitimate state interest. The rationality commanded by 265 the Equal Protection Clause does not require States to 266
match age distinctions and the legitimate interests they 267

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39 39
serve with razorlike precision. As we have explained, 268 when conducting rational basis review ‘we will not 269 overturn such [government action] unless the varying 270
treatment of different groups or persons is so unrelated 271 to the achievement of any combination of legitimate 272 purposes that we can only conclude that the 273 [government's] actions were irrational.’ Bradley, supra, 274
at 97. In contrast, when a State discriminates on the 275 basis of race or gender, we require a tighter fit between 276 the discriminatory means and the legitimate ends they 277 serve. See, e.g., Adarand Constructors, Inc. v. Pena, 278
515 U.S. 200, 227 (1995) (‘[Racial] classifications are 279 constitutional only if they are narrowly tailored 280 measures that further compelling governmental 281 interests’); Mississippi Univ. for Women v. Hogan, 458 282
U.S. 718, 724 (1982) (holding that gender classifications 283 are constitutional only if they serve ‘important 284 governmental objectives and ... the discriminatory means 285 employed’ are ‘substantially related to the achievement 286
of those objectives’ (citation omitted)). 287
120 S.Ct. at 645-646 (citations partially omitted). 288
In other words, Kimel can be read to admonish that: Unlike age 289
or other classifications subject to rational basis review, 290
governmental conduct based on race or gender is deemed to reflect 291
prejudice and antipathy because it is so seldom relevant to the 292
achievement of any legitimate state interest. Persons who suffer 293
discrimination on the basis of race or gender have been subjected 294
to a history of purposeful unequal treatment. A suspect class 295
defines a discrete and insular minority. Race and gender are 296
suspect classes under the Equal Protection Clause. See id. Racial 297
classifications are constitutional only if they are narrowly 298
tailored measures that further compelling governmental interests. 299
Gender classifications are constitutional only if they serve 300
important governmental objectives and the discriminatory means are 301
substantially related to the achievement of those objectives. See 302

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40 40
id. at 646. 303
Moreover, Kimel demonstrates that the history of States’ 304
unequal treatment of persons based on race or gender clearly 305
justifies the strongest exercise of powers by the Court and the 306
Congress to enforce the Fourteenth Amendment equal protection 307
guarantee. Accordingly, there is an important corollary between 308
the Court’s strict scrutiny of state action based on suspect 309
classifications and Congress’ vast power to adopt strong measures 310
to remedy and deter governmental discrimination against persons 311
based on race or gender. 312
In San Antonio Independent School Dist.v. Rodriquez, 411 U.S. 313
1, 28 (1973), a case cited as instructive by Kimel, the Court 314
identified a suspect class as one “saddled with such disabilities, 315
or subjected to such a history of purposeful unequal treatment, or 316
relegated to such a position of political powerlessness as to 317
command extraordinary protection from the majoritarian political 318
process.” The Court in Kimel indicated that age, unlike race or 319
gender, is not a suspect classification warranting either judicial 320
strict scrutiny or section 5 legislation that presumes governmental 321
action based on every age classification to be unconstitutional. 322
For example, the Court in Kimel stated: “Older persons...unlike 323
those who suffer discrimination on the basis of race or gender, 324
have not been subjected to a “history of purposeful unequal 325
treatment.” 120 S.Ct., at 645. “The [ADEA], through its broad 326
restriction on the use of age as a discriminating factor, prohibits 327

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41 41
substantially more state employment decisions than would likely be 328
held unconstitutional under the applicable equal protection, 329
rational basis standard.” Id. at 647. “Measured against the 330
rational basis standard of our equal protection jurisprudence, the 331
ADEA plainly imposes substantially higher burdens on state 332
employers[, imposing] substantive requirements...at a level akin to 333
our heightened scrutiny cases under the Equal Protection Clause.” 334
Id. at 648. “[Thus,] the ADEA’s protection extends beyond the 335
requirements of the Equal Protection Clause.” Id. “Congress, 336
through the ADEA, has effectively elevated the standard for 337
analyzing age discrimination to heightened scrutiny.” Id. 338
In contrast, governmental action based on race or gender 339
classifications is presumed to be unconstitutional, warrants 340
heightened or strict judicial scrutiny, and places the burden of 341
justification entirely on the state. With respect to sex 342
discrimination, the Supreme Court in United States v. Virginia, 518 343
U.S. 515, 531 (1996)(VMI Case) held: “Parties who seek to defend 344
gender-based government action must demonstrate an ‘exceedingly 345
persuasive justification’ for that action.” (citing J.E.B. v. 346
Alabama ex rel. T.B., 511 U.S. 127, 136-137, n. 6 (1994); 347
Mississippi Univ. for Women, 458 U.S. at 724). Furthermore, the 348
Court in the VMI case noted that: “Without equating gender 349
classifications, for all purposes, to classifications based on race 350
or national origin, the Court, in post-Reed decisions, has 351
carefully inspected official action that closes a door or denies 352

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69 Governmental gender classifications are presumptively
invalid. E.g., United States v. Virginia, 518 U.S. at 532 (citing
J.E.B. v. Alabama ex rel. T.B., 511 U.S 127, 152 (Kennedy, J.
concurring)). Section 5 legislation outlawing constitutional
conduct to prevent or deter violations of suspect or quasi-suspect
42 42
opportunity to women (or to men).” Id. at 532 (citing J.E.B., 511 353
U.S. at 152 (Kennedy, J., concurring) (case law evolving since 1971 354
“reveal[s] a strong presumption that gender classifications are 355
invalid”)). “To summarize the Court’s current directions for cases 356
of official classification based on gender[,]” the Court in the VMI 357
case stated: “Focusing on the differential treatment or denial of 358
opportunity for which relief is sought, the reviewing court must 359
determine whether the proffered justification is exceedingly 360
persuasive. The burden of justification is demanding and it rests 361
entirely on the State. The State must show at least that the 362
challenged classification serves important governmental 363
objectives.” Id. at 532-533 (internal quotations, citations and 364
brackets omitted). 365
As Kimel suggests, when the Supreme Court identifies a 366
government classification of persons as suspect or quasi-suspect, 367
it effectively broadens the scope of Congressional power to remedy 368
or deter governmental discrimination based on that classification. 369
See Kimel, 120 S.Ct. at 646. Congress may rely on the presumption 370
that state action based on the suspect classification is 371
unconstitutional in enacting legislation that outlaws 372
constitutional conduct as a rational means of deterring such 373
presumptively unconstitutional governmental conduct.69 Thus, 374

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classes’ rights has consistently been upheld. See, e.g.,
Fitzpatrick v. Bitzer, 427 U.S. 445, 453, n.9 (1976)(federal court
action under Title VII by present and retired male employees of
Connecticut against the state, based on governmental gender
discrimination in state retirement plan, was not precluded by the
Eleventh Amendment. It was undisputed that Congress enacted Title
VII, which grants remedial and deterrent protection to suspect and
quasi-suspect classes, and its 1972 Amendments extending coverage
to the States as employers, pursuant to its power under § 5 of the
Fourteenth Amendment.); Katzenbach v. Morgan, 384 U.S. 641, 652
(1966)(upholding § 4(e) of the Voting Rights Act of 1965 as
appropriate legislation under § 5 of the Fourteenth Amendment “to
secure for the Puerto Rican community residing in New York
nondiscriminatory treatment by government–both in the imposition of
voting qualifications and the provision or administration of
governmental services, such as public schools, public housing and
law enforcement.”); Lopez v. Monterey County, 525 U.S. 266
(1999)(Hispanic voters successfully challenged unprecleared
ordinance changing methods for electing county judges enacted by
Monterey County, which was designated a jurisdiction covered by the
preclearance requirement, § 5 of Voting Rights Act of 1965,
although the election change was required by state law, California
itself was not a covered jurisdiction, and, according to Justice
Thomas’ dissent, id., at 295-296, there had “been no legislative
finding that the State of California has ever intentionally
discriminated on the basis of race, color, or ethnicity with
respect to voting.”)
43 43
Congress is not required to compile an evidentiary legislative 375
record to prove that a suspect class previously identified by the 376
Supreme Court is still “saddled with such disabilities, or 377
subjected to such a history of purposeful unequal treatment, or 378
relegated to such a position of political powerlessness as to 379
command extraordinary protection from the majoritarian political 380
process.” Rodriguez 411 U.S. at 28. That the class in question is 381
marked sufficiently by the traditional indicia that identify a 382
suspect class has already been established by the Supreme Court’s 383
decision. 384
In fact, Kimel’s recognition of the parallel or kinship 385

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44 44
between the powers and duties of the Court and those of the 386
Congress to enforce the equal protection clause against 387
governmental discrimination on the basis of race or gender with 388
heightened stringency was anticipated by at least three Circuit 389
Courts of Appeals in interpreting Boerne. See Mills v. Maine, 118 390
F.3d 37 (1st Cir. 1997); Abril v. Commonwealth of Virginia, 145 F.3d 391
182 (4th Cir. 1998); Velasquez v. Frapwell, 160 F.3d 389, 391 (7th
392
Cir. 1998) vacated in part 165 F.3d 593 (7th Cir. 1999). 393
The Kimel Court recognized that even governmental 394
discrimination based on classifications subject only to rational 395
basis judicial review can present “[d]ifficult and intractable 396
problems ...requir[ing] powerful remedies” that allow Congress 397
under § 5 to enact “reasonably prophylactic legislation.” Kimel, 398
120 S.Ct. at 648. Further, such legislation will upheld when the 399
Court can determine that the act “is in fact just such an 400
appropriate remedy” by, for example, “examining the legislative 401
record containing the reasons for Congress’ action.” Id. Thus, 402
the Court in Kimel did not impose a blanket evidentiary or proof 403
requirement upon Congress’ section 5 powers; instead, the Court 404
examined the ADEA’s legislative record in Kimel only to determine 405
whether that act, which did not address state discrimination on the 406
basis of a suspect classification, was in fact an appropriate 407
remedy for a state act of discrimination against a non-suspect 408
class that was so irrational as to be a denial of equal protection 409
under the rational basis standard of review. 410

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45 45
Accordingly, I believe that the majority misreads Kimel as 411
defining a blanket test for all section 5 legislation. The holding 412
in Kimel clearly was not intended to apply to statutes which 413
prohibit constitutional behavior as a rational means to deter 414
unconstitutional discrimination against a suspect or quasi-suspect 415
class. 416
III. 417
To determine whether the FMLA is appropriate section 5 418
legislation, the majority errs by relying upon a superficial 419
reading of the latest several cases, which as discussed supra did 420
not alter the section 5 analysis in the present case, rather than 421
properly examining the statute within the larger framework of the 422
entire body of jurisprudence regarding constitutional grants of 423
both legislative and judicial powers to enforce the equal 424
protection of laws provisions of the Fourteenth and Fifteenth 425
Amendments against governmental action based on suspect 426
classifications. 427
Section 5 of the Fourteenth Amendment is a congressional 428
enforcement clause virtually identical to those found in the 429
Thirteenth, Fifteenth, Eighteenth, Nineteenth, Twenty-third, 430
Twenty-fourth, and Twenty-sixth Amendments. To determine if 431
Congress is acting pursuant to its enforcement clause powers, we 432
look to whether the act is a rational means to an end that is 433
comprehended by the underlying constitutional amendment. See, 434

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70See also Laurence H. Tribe, American Constitutional Law, §
5-17, at 959-960 (3rd ed. 1999) [hereinafter Tribe]: “Katzenbach v.
Morgan and all its progeny spanning nearly 34 years by the turn of
the century, have now settled beyond question that, in order to
enforce § 1 of the Fourteenth Amendment, Congress may, acting
pursuant to §5, outlaw practices that are not themselves violations
of § 1 in any sense — provided one can show that outlawing those
practices is a rational way to deter or to remedy actions that
would violate § 1.” (Footnote and emphasis omitted).
46 46
e.g., South Carolina v. Katzenbach, 383 U.S. at 324, 326 (upholding 435
Voting Rights Act of 1965 under the Fifteenth Amendment's 436
enforcement clause); James Everard’s Breweries v. Day, 265 U.S. 437
545, 558-59, 563 (1924) (upholding Supplemental Prohibition Act of 438
1921 under the Eighteenth Amendment’s enforcement clause); Mills, 439
118 F.3d at 44; Velasquez, 160 F.3d at 391.70
440
In Ex Parte Virginia, 100 U.S.(10 Otto) 339(1879), the Supreme 441
Court interpreted Congress’ power to enact “appropriate 442
legislation” under the Civil War Amendments broadly, in line with 443
McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 421 (1819), 444
concluding that “[w]hatever legislation is...adapted to carry out 445
the objects the amendments have in view, whatever tends to enforce 446
submission to the prohibitions they contain, and to secure to all 447
persons the enjoyment of perfect equality of civil rights and the 448
equal protection of the laws against state denial or invasion, if 449
not prohibited, is brought within the domain of congressional 450
power.” Id. at 345-346. 451
In Katzenbach v. Morgan, 384 U.S. 641 (1966), the Supreme 452
Court held that § 5 of the Fourteenth Amendment “is a positive 453
grant of legislative power authorizing Congress to exercise its 454

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47 47
discretion in determining whether and what legislation is needed to 455
secure the guarantees of the Fourteenth Amendment.” Id. at 651. 456
In particular, the Court determined that a Congressional enactment 457
is “appropriate legislation” under section 5 for Equal Protection 458
purposes if: [1] “under the McCulloch v. Maryland standard, [it] 459
may be regarded as an enactment to enforce the Equal Protection 460
Clause, [2] it is plainly adapted to that end and [3] it is not 461
prohibited by but is consistent with the letter and spirit of the 462
constitution.” Id. at 651 (footnote and internal quotations 463
omitted). 464
Consequently, under McCulloch, Ex parte Virginia, Katzenbach 465
v. Morgan and their progeny Congress may, when acting pursuant to 466
§5 to enforce §1 of the Fourteenth Amendment, “outlaw practices 467
that are not themselves violations of § 1 in any sense—provided one 468
can show that outlawing those practices is a rational way to deter 469
or to remedy actions that would violate § 1.” See Tribe, supra 470
n.3. As noted above, rather than being limited, the well settled 471
principle that Congress has the power to prohibit conduct which is 472
not itself unconstitutional as a rational means of preventing or 473
deterring violations of the Fourteenth Amendment was recognized and 474
reaffirmed by both Kimel and Boerne. See also Lopez, 525 U.S. at 475
282 (post-Boerne case reaffirming the well established principles 476
that (1) “the Reconstruction Amendments by their nature contemplate 477
some intrusion into areas traditionally reserved to the States” and 478
that (2) “legislation which deters or remedies constitutional 479

-- 47 of 67 --

48 48
violations can fall within the sweep of Congress’ enforcement power 480
even if in the process it prohibits conduct which is not itself 481
unconstitutional and intrudes into legislative spheres of autonomy 482
previously reserved to the states”). 483
A number of distinguished jurists applying the Katzenbach v. 484
Morgan test, as interpreted by Fitzpatrick, have expressly or 485
implicitly adopted the view that section 5 legislation designed to 486
remedy, deter or prevent denial of equal protection of the laws to 487
a suspect or quasi-suspect class will be deemed appropriate if the 488
Court can see that it is a rational means of furthering that 489
purpose, as the risk that any differentiation on such basis would 490
be unconstitutional is significant. See, e.g., Mills, 118 F.3d at 491
44; Abril, 145 F.3d at 187, n.11; Velasquez, 160 F.3d at 391; 492
Corpus v. Estelle, 605 F.2d 175, 180 (Wisdom, J.). This idea is 493
clearly implied by, or reasonably inferred from, the Court’s 494
opinion in Kimel. 495
The theory is bolstered by the Court’s approval of several 496
important civil rights measures designed to prevent or deter 497
unconstitutional government discrimination based on race or sex by 498
outlawing constitutional government actions. See,e.g., Fitzpatrick, 499
427 U.S. at 456 (affirming that Title VII abrogated the States’ 500
Eleventh Amendment immunity with regards to sex discrimination 501
including disparate effects inequality in employment); South 502
Carolina v. Katzenbach, 383 U.S. at 324 (upholding under the 503
Fifteenth Amendment, certain enforcement provisions of the Voting 504

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49 49
Rights Act of 1965 designed to both remedy and deter governmental 505
race discrimination in voting); Katzenbach v. Morgan, 384 U.S. at 506
652(upholding the Voting Rights Act provision that banned otherwise 507
valid English language requirement for voting as appropriate 508
legislation enforcing the Equal Protection Clause of the Fourteenth 509
Amendment); Lopez, 525 U.S. at 282 (upholding the Voting Rights 510
Act’s application of pre-clearance requirements against partially 511
covered state governments as appropriate legislation deterring 512
violations of the Fifteenth Amendment by county governments at the 513
direction of the state). 514
Accordingly, unlike the majority, I do not believe that the 515
Constitution or the Supreme Court’s decisions require Congress to 516
cite specific evidence of actual constitutional violations when the 517
evil it seeks to remedy, deter or prevent is governmental 518
discrimination against persons based on race, gender or other 519
characteristics that the Supreme Court has recognized as marking 520
a group as a suspect class. In the judicial enforcement of the 521
Equal Protection Clause, a valid claim of governmental 522
discrimination against a suspect class calls for a shifting of the 523
burden of production and persuasion to the State to prove that the 524
legislation “must serve a compelling government interest, and must 525
be narrowly tailored to further that interest.” See Adarand 526
Constructors, Inc. v. Pena, 515 U.S. 200, 235 (1995). If the 527
quasi-suspect classification of gender is involved, the “burden of 528
justification is demanding and it rests entirely on the state . . 529

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50 50
. [to] show at least that the challenged classification serves 530
important governmental objectives.” VMI Case, supra, at 532-533. 531
Consequently, when Congress is exercising its concurrent power 532
and duty to enforce the Equal Protection Clause of the Fourteenth 533
Amendment on behalf of a group which has been identified as a 534
suspect or quasi-suspect class by the Supreme Court, Congress is 535
not required to prove past or potential governmental discrimination 536
against that class before proceeding to enact rational means of 537
remedying, preventing or deterring the risk of future violations of 538
the constitutional rights of members of that suspect class. As 539
discussed supra, by definition, a suspect class is one which the 540
Supreme Court has determined to have been subjected to both current 541
and historical discriminatory treatment. See, e.g., Plyler v. Doe, 542
457 U.S. 202, 216 n.14 (1982); Rodriguez, 411 U.S. at 28; see also 543
Mark Strasser, Suspect Classes and Suspect Classifications: On 544
Discriminating, Unwittingly or Otherwise, 64 Temp.L.Rev. 937 545
(1991). 546
Thus, it is possible for a court to determine that Congress 547
was acting pursuant to section 5 of the Fourteenth Amendment to 548
prevent or deter violations of §1 of the Amendment without Congress 549
having identified any specific evidence of race or gender 550
discrimination by the States, if a court can ascertain that the 551
measure is a rational means adopted to deter or prevent 552
discrimination against suspect classes. While evidence of specific 553
past constitutional violations against members of a suspect class 554

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71This is also consistent with the fact that the Supreme Court
has never held that a statute intended to remedy race or sex
discrimination was not enacted pursuant to section 5 of the
Fourteenth Amendment. Compare Kimel, 120 S.Ct. at 649; Florida
Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527
U.S. 627 (1999) (holding the Patent Remedy Act not enacted pursuant
to section 5); Boerne, 521 U.S. at 531 (holding the Religious
Freedom Restoration Act not enacted pursuant to section 5) with
Fitzpatrick v. Bitzer, 427 U.S. 445 (1976) (holding Title VII of
the Civil Rights Act was enacted pursuant to section 5).
51 51
may well help a court to see that deterrent legislative means are 555
rational, it is not always necessary that Congress have developed 556
such evidence. See, e.g., Lopez, 525 U.S. at 282; Kilcullen v. New 557
York State Dept. of Labor, 205 F.3d 77, 80 n.6 (2nd Cir. 2000) 558
(post-Kimel case holding “that courts may look beyond the 559
information in the legislative record in assessing whether a 560
statute is a valid exercise of Congress’s § 5 powers.”); 561
Hundertmark v. State of Florida D1ept. of Transportation, 205 F.3d 562
1272, 1276 (11th Cir. 2000) (post-Kimel case holding that under the 563
Equal Pay Act, “[w]hile it is true that Congress has not made 564
similar findings with respect to wage discrimination in the public 565
sector, such findings are not fatal...”). This is consistent with 566
the Supreme Court’s continuous support of Congress’ ability to 567
enact broad prophylactic legislation to prevent race or gender 568
discrimination. See Kimel, 120 S.Ct. at 648; see also Mills, 118 569
F.3d at 47.71
570
For example, the Court and this circuit have held, without 571
requiring specific proof of pervasive constitutional violations, 572
that Congress may, under section 5, deter unconstitutional 573

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72See Fitzpatrick, 427 U.S. at 456. Although the Constitution
does not prohibit non-intentional acts that disparately impact
suspect classes, Washington v. Davis, 426 U.S. 229 (1976), Title
VII does. Thus, the Supreme Court has already once found that
Congress is acting pursuant to section 5 when outlawing broad
swaths of conduct that are not unconstitutional as a means to deter
unconstitutional discrimination on the basis of race or sex. See
Cole, 1997 Sup.Ct.Rev. at 45. This circuit has recently reaffirmed
this holding. See Ussery v. Louisiana, 150 F.3d 431, 434 (5th Cir.
1998).
73See Oregon v. Mitchell, 400 U.S. 112 (1970); South Carolina
v. Katzenbach, 383 U.S. at 336. The Court in Boerne specifically
cited passages from South Carolina v. Katzenbach that support
Congress’ ability to enact legislation based on Congress’ rational
belief that such legislation would deter discrimination without
specific proof that such discrimination had occurred. Boerne, 521
U.S. at 526 (“Congress could have determined that racial prejudice
is prevalent throughout the Nation, and that literacy tests unduly
lend themselves to discriminatory application, either conscious or
unconscious") (opinion of Harlan, J.); ("[T]here is no question but
that Congress could legitimately have concluded that the use of
literacy tests anywhere within the United States has the inevitable
effect of denying the vote to members of racial minorities whose
inability to pass such tests is the direct consequence of previous
governmental discrimination in education") (opinion of Brennan,
J.); ("[N]ationwide [suspension of literacy tests] may be
reasonably thought appropriate when Congress acts against an evil
such as racial discrimination which in varying degrees manifests
itself in every part of the country") (opinion of Stewart, J.)
(internal citations omitted).
74Katzenbach v. Morgan, 384 U.S. at 651.
52 52
discrimination against suspect classes by outlawing constitutional, 574
non-intentional discrimination against suspect classes in the 575
workplace,72 banning constitutional literacy tests,73 banning 576
constitutional English language requirements for students educated 577
only in Spanish in American schools,74 imposing a non- 578
constitutionally mandated requirement of pre-clearance for changes 579

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75See Lopez, 525 U.S. at 282; id. at 295 (Thomas, J.,
dissenting) (noting that the Court did so without requiring
specific proof in the legislative record); City of Rome v. United
States, 446 U.S. 156 (1980).
76See Corpus, 605 F.2d at 180.
53 53
in voting standards,75 and granting non-constitutionally mandated 580
attorney’s fees to parties bringing victorious claims under the 581
Civil Rights Act.76 Thus, in this respect I agree with Judge 582
Posner, who stated in interpreting this power that Congress can 583
believe those who “constitute a historically disadvantaged 584
(‘suspect’) class . . . might be thought in need of special 585
protections -- of a glacis in front of the core [constitutional] 586
prohibitions -- in order to make those prohibitions fully 587
effective.” Velasquez, 160 F.3d at 391. 588
Turning to an analysis of the FMLA in light of the foregoing 589
principles, I first emphatically disagree with the majority’s 590
piecemeal, fragmented approach to a determination of whether the 591
statute is a congruent, proportional and rational means to prevent 592
and deter governmental and private gender based discrimination. 593
The FMLA is a comprehensive, reticulated statute that prohibits and 594
requires a synergism of constitutional employment practices as a 595
rational means of deterring the difficult and intractable evils of 596
governmental and private gender based discrimination in employment. 597
Although a principal goal of the FMLA is to deter sex 598
discrimination against male and female employees in granting leave 599
time, the statute also addresses a complex of inextricably related 600

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54 54
issues and side effects, such as, gender discrimination based on 601
sexual stereotypes, counterbalancing of perceived inequities and 602
incentives to discriminate, and the ramifications of the 603
legislation for children and families. As the majority concedes, 604
it has no authority to support its atomistic interpretative 605
methodology by which it parses the statute into subsections, 606
examines each in isolation, and requires that each be based on its 607
own separate evidentiary predicate. Proceeding as the proverbial 608
blind men examining an elephant’s parts my colleagues fail to 609
discover the true nature of the creature as a whole. As discussed 610
infra, the remedies implemented by the FMLA are not distinct, but 611
rather were found interdependently necessary as a whole to 612
effectuate Congress’ stated purpose to deter and prevent 613
unconstitutional discrimination. 614
The FMLA undoubtedly was enacted to deter or prevent 615
unconstitutional gender discrimination against employees by both 616
governmental and private employers. Section 2601 of the FMLA lists 617
the findings and purposes of the FMLA related to gender 618
discrimination by public and private employers: 619
(a) Congress finds that: 620
* * * 621
(5) due to the nature of the roles of men and 622
women in our society, the primary 623
responsibility for family caretaking often 624
falls on women, and such responsibility 625
affects the working lives of women more than 626
it affects the working lives of men; and 627
(6) employment standards that apply to one 628

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55 55
gender only have serious potential for 629
encouraging employers to discriminate against 630
employees and applicants for employment who 631
are of that gender. 632
* * * 633
(b) It is the purposes of this Act 634
(1) to balance the demands of the workplace 635
with the needs of families, to promote the 636
stability and economic security of families, 637
and to promote national interests in 638
preserving family integrity; 639
(2) to entitle employees to take reasonable 640
leave for medical reasons, for the birth or 641
adoption of a child, and for the care of a 642
child, spouse, or parent who has a serious 643
health condition; 644
* * * 645
(4) to accomplish the purposes described in 646
paragraphs (1) and (2) in a manner that, 647
consistent with the Equal Protection Clause of 648
the Fourteenth Amendment, minimizes the 649
potential for employment discrimination on the 650
basis of sex by ensuring generally that leave 651
is available for eligible medical reasons 652
(including maternity-related disability) and 653
for compelling family reasons, on a gender- 654
neutral basis. 655
(5) to promote the goal of equal employment 656
opportunity for women and men, pursuant to 657
such clause. 658
29 U.S.C. § 2601(a)(5)-(6), (b)(1)-(2), (b)(4)-(5); see also S.Rep. 659
No. 103-3 at 16 (1993) (“A law providing special protection to 660
women or any defined group . . . runs the risk of causing 661
discriminatory treatment. S.5, by addressing the needs of all 662
workers, avoids such a risk.”) and H.R.Rep. No. 103-8(I), at 29 663
(1993). It is thus clear that one principal purpose of the FMLA 664

-- 55 of 67 --

77See, e.g., United States v. Virginia, 518 U.S. at 533
(affirming the heightened constitutional scrutiny for sex
discrimination); Orr v. Orr, 440 U.S. 268 (1979) (holding state
alimony laws may not discriminate against men); Califano v.
Goldfarb, 430 U.S. 199, 208 n.8 (1977) (holding discrimination
against men must meet heightened constitutional scrutiny).
56 56
was to act as legislation under section 5 of the Fourteenth 665
Amendment to prevent or deter sex discrimination in the granting of 666
family leave by both private and public employers. 667
Because a gender classification, as a basis for state action, 668
is quasi-suspect under the Equal Protection Clause and calls for 669
heightened scrutiny,77 the sole inquiry under the Supreme Court’s 670
cases, including Kimel and Boerne, is whether the FMLA’s 671
prohibition of certain constitutional state conduct is a rational 672
means to deter gender discrimination by government employers. By 673
imposing a fixed amount of leave time for both men and women, 674
Congress has insured that no employer, private or public, will be 675
able to discriminate in granting leave time based on historical, 676
irrational gender-based stereotypes by either refusing to hire 677
women because of their perceived role as the primary caregiver and 678
nurturer of families or by refusing to allow leave time to men 679
based on the assumption that women are better suited for such 680
roles. Thus, it clearly cannot be denied that the FMLA is a 681
rational means of deterring governmental gender discrimination 682
against employees. That Congress has not chosen a less intrusive 683
means to achieve this end or that this court would have adopted a 684
narrower means is entirely irrelevant to the sole issue at hand – 685

-- 56 of 67 --

78Further, as discussed infra, Congress in fact did attempt to
deter gender discrimination through narrower means by enacting the
Pregnancy Discrimination Act, and found such means ineffective.
57 57
whether such a means is a rational way to deter governmental sex 686
discrimination.78 As it is impossible to say, in view of our common 687
political, social and historical knowledge, that the legislation is 688
not a rational means of deterrence of unconstitutional gender 689
discrimination, I believe the FMLA was properly enacted under 690
Congress’ section 5 enforcement powers and thus properly abrogates 691
the States’ Eleventh Amendment immunity. 692
IV. 693
694
Even if it were required that Congress compile a legislative 695
record to demonstrate the existence of past and current gender 696
discrimination by government employers as a predicate for the 697
enactment of the FMLA pursuant to section 5 (although I believe 698
there is no such constitutional requisite), the procedural and 699
legislative history of the FMLA clearly provides more than a 700
sufficient predicate of evidence, findings and facts. The FMLA is 701
the end result of a lengthy process intended, through the 702
imposition of employment standards, to deter sex discrimination 703
against both men and women in the granting of leave time. The 704
legislative history and record bear out that, unlike the majority’s 705
reading, Congress enacted the FMLA as a single, comprehensive 706
response to prevent sex discrimination in governmental and private 707

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58 58
workplaces that Congress had unsuccessfully attempted to address 708
through more narrowly tailored legislation for over three decades. 709
Initially, Title VII of the Civil Rights Act of 1964, 42 710
U.S.C. § 2000e, et. seq., was intended to remedy discrimination in 711
the workplace based on, inter alia, sex. In 1972, perceiving 712
widespread discrimination on the basis of sex in educational 713
institutions, Congress amended Title VII to extend its coverage to 714
such institutions. See H.R. Rep. 92-238 at n.6 (“Discrimination 715
against minorities and women in the field of education is as 716
pervasive as discrimination in any other area of employment . . . 717
. When they have been hired into educational institutions . . . 718
women have been relegated to positions of lesser standing than 719
their male counterparts.”). In 1976, however, the Supreme Court 720
held that Title VII did not protect discrimination based on 721
pregnancy under the theory that such discrimination is not 722
discrimination based on sex, but rather is discrimination among 723
women based on a medical condition. See General Electric Co. v. 724
Gilbert, 429 U.S. 125 (1976) (citing Geduldig v. Aiello, 417 U.S. 725
484 (1974)). In response, Congress amended section 701 of Title 726
VII by enacting the Pregnancy Discrimination Act (“PDA”), 727
effectively overruling Gilbert by amending the definition of 728
discrimination on the basis of sex to include discrimination on the 729
basis of pregnancy. Although not directly addressing Geduldig, the 730
Court did implicitly recognize that the PDA was proper prophylactic 731
legislation to prevent sex discrimination under Title VII and thus 732

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reversed Gilbert in full. See Newport News, 462 U.S. at 676 (1983) 733
(recognizing that the PDA “not only overturned the specific holding 734
in [Gilbert] but also rejected the test of discrimination employed 735
by the Court in that case”). 736
The PDA, although amending the definition of discrimination to 737
include discrimination based on pregnancy, failed to affirmatively 738
grant pregnant workers leave time or the right to return to their 739
job; rather, an employer only needed to provide such benefits if he 740
provided them to other temporarily disabled workers. In response, 741
the State of California enacted legislation mandating these rights 742
for pregnant workers. The California statute was soon challenged 743
in federal court on the grounds that it required employers to 744
discriminate against non-pregnant employees in violation of Title 745
VII as amended by the PDA. Although eventually reversed by the 746
Ninth Circuit and the Supreme Court, the Central District of 747
California held that the California statute did so conflict with 748
Title VII. See California Savings and Loan Assoc. v. Guerre, 479 749
U.S. 272 (1987). Perceiving that enacting the PDA had not achieved 750
the intended result of preventing discrimination against either 751
women or men in the granting of leave time in that the States felt 752
it necessary to affirmatively grant pregnancy leave to women and 753
not men, in 1985 Congress began considering the issue of family and 754
medical leave. See generally Sabra Craig, Note, The Family and 755
Medical Leave Act of 1993: A Survey of the Act’s History, Purposes, 756
Provisions and Social Ramifications, 44 Drake L.Rev. 51 (1995). 757

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In 1985, Representative Pat Schroeder introduced the Parental 758
and Disability Leave Act of 1985 (“PDLA”) in the House of 759
Representatives. The PDLA provided for eighteen weeks of unpaid 760
leave for both mothers and fathers of newborn or adopted children 761
and twenty-six weeks of unpaid leave for employees’ non-work 762
related disabilities or sick children. The PDLA was not considered 763
by the House of Representatives, but was resubmitted in 1986 by 764
Representative William Clay and renamed the Parental and Medical 765
Leave Act of 1986 (“PMLA”). The Subcommittee on Compensation and 766
Employee Benefits and the Committee on Post Office and Civil 767
Service conducted joint hearings on the PMLA, as did the 768
Subcommittee on Labor Management Standards, to determine the extent 769
of discrimination against men and in favor of women in the 770
workplace with regard to taking leave to care for sick family 771
members. The full House of Representatives once again failed to 772
consider the bill. In 1989, Representative Clay re-introduced the 773
Family and Medical Leave Act in the House of Representatives. The 774
1989 version, which was substantially similar to the 1987 version, 775
was passed by both the House of Representatives and the Senate but 776
was vetoed by President Bush in June 1990. In January 1991 Senator 777
Christopher Dodd introduced the Family and Medical Leave Act of 778
1991 to the Senate, which was identical to the bill vetoed by the 779
President in 1991. Congress then amended the bill, changing solely 780
the amount of mandatory leave per year from between eighteen to 781
twenty-six weeks to twelve weeks. The Act was eventually passed by 782

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both the House of Representatives and the Senate, only to be vetoed 783
once again in September 1992 by President Bush. See generally H.R. 784
Rep. No. 103-8(II). 785
In January 1993, Representative William Ford once again 786
introduced the Family and Medical Leave Act (“FMLA”) to the House 787
of Representatives. The leave provisions of the 1993 FMLA were 788
substantially similar to those of the amended 1991 FMLA. H.R. Rep. 789
No. 103-8(II) (1993). In considering enactment of the 1993 FMLA, 790
the House of Representatives considered both new evidence of 791
discrimination based on sex with regard to leave and reviewed the 792
testimony given at hearings with respect to the prior 793
“substantially similar” bills considered in prior years. H.R. Rep. 794
No. 103-8(I). The 1993 FMLA was passed by both the House of 795
Representatives and the Senate, and was signed into law in February 796
1993 by President Clinton. 797
As the House Report indicates, the genesis of the FMLA has its 798
roots in the 1985 proposed legislation and is substantially similar 799
to that legislation. Further, the House Report indicates that not 800
only did Congress know of the previous efforts to enact the FMLA, 801
but it based each subsequent version on prior versions. The House 802
of Representatives makes multiple references to the committee 803
hearings held for the 1986 PMLA and utilizes some of the findings 804
as a basis for enacting the FMLA. H.R. Rep. No. 103-8(I). As a 805
result of these references it is not only permissible, but 806
necessary, to look to the legislative history and intended purposes 807

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79Despite their protestations, it appears that the majority
agrees in that the only legislative history cited in the majority
opinion is from these earlier bills, including the 1987 act. See
Maj.Op. at 9.
62 62
of these earlier bills as well as the one finally enacted into law 808
in 1993 to determine Congressional intent.79
809
It appears clear from the legislative history that Congress 810
perceived sex discrimination in the granting of family and medical 811
leave, notably in favor of granting such leave to women, and was 812
acting accordingly in enacting the FMLA. See, e.g., S.Rep. No. 813
103-3, at 14 - 15 (1993) (discussing studies by the Bureau of Labor 814
Statistics highlighting the discrepancy between the availability of 815
maternity and paternity leave). Testimony in hearings throughout 816
the legislative process demonstrated that such discrepancies 817
occurred in both the private and public sectors. See, e.g., 818
Parental and Medical Leave Act of 1986: Hearings on H.R. 4300 819
Before the Subcomm. on Labor Management Standards, 99th Cong., 30, 820
147 (testimony of Meryl Frank, Director of the Yale Bush Center 821
Infant Care Leave Project, that “[w]e found that public sector 822
leaves don’t vary very much from private sector leaves.”); id. at 823
147 (statement of the Washington Council for Lawyers that “men, 824
both in the public and private sectors, receive notoriously 825
discriminatory treatment in their request for such leave.”); 826
Parental and Medical Leave Act of 1987: Hearings on S.249 Before 827
the Subcomm. on Children, Family, Drugs and Alcoholism, 100th Cong., 828
364-74 (testimony of Elaine Gordon, Member of the Florida House of 829

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80The majority relies heavily on the statement in Kimel that
the Court would not impute evidence of age discrimination by
private employers to the States. See Kimel, 120 S.Ct. at 649.
This statement must be taken in the context of Kimel, i.e., that
evidence of private discrimination based on age has no probative
value with respect to unconstitutional discrimination based on age
by the States because it is so unlikely that discrimination engaged
in by private employers would be considered unconstitutional if
engaged in by States. With respect to race and gender, however,
because of the significant likelihood that any discrimination by
States on those bases would be unconstitutional, evidence that such
discrimination is widespread throughout the private sector may be
sufficient in itself to justify Congressional enactment of
prophylactic legislation to prevent such widespread discrimination
from being performed by the States. Cf. Florida Prepaid, 527 U.S.
at ___; 119 S.Ct. at 2207.
63 63
Representatives, that leave is only granted to female [public] 830
employees in Florida and that Florida rejected extending such leave 831
to men); id. at 385 (testimony of Gerald McEntee, International 832
President, American Federation of State, County and Municipal 833
Employees that “the vast majority of our [public employment] 834
contracts, even though we look upon them with great pride, really 835
cover essentially maternity leave, and not paternity leave. And 836
this is so key to the bill that it opens up the eyes of employers 837
and opens up the eyes of America.”); Family and Medical Leave Act 838
of 1989: Hearings on H.R. 770 Before the Subcomm. on Labor- 839
Management Relations, 101st Cong. 271 (statement of the Concerned 840
Alliance of Responsible Employers that 13 states grant family leave 841
to women and not men).80
842
The House Report on the 1993 FMLA indicates that Congress was 843
aware of such testimony and at least partially relied on this 844
testimony in enacting provisions of the current FMLA. See, e.g., 845

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H.R.Rep. No. 103-8(I) (1993) (“Meryl Frank, director of the Infant 846
Care Leave Project of the Yale Bush Center in Child Development and 847
Social Policy, reported to the committee on the 1986 conclusions 848
and recommendations of the Project’s Advisory Committee on Infant 849
Care Leave.”). Further, the Senate Report specifically mentioned 850
that the FMLA was passed in response to “government policies that 851
have failed to adequately respond to recent economic and social 852
changes that have intensified the tensions between work and 853
family.” S.Rep. No. 103-3 at 4 (1993). It thus seems clear that 854
Congress intended to enact the FMLA at least in part to directly 855
remedy actual incidents of sex discrimination in the granting of 856
family leave time that existed in both the public and private 857
sectors. See generally Garrett v. University of Alabama at 858
Birmingham Board of Trustees, 193 F.3d 1214, 1228-30 (11th Cir. 859
1999) (Cook, J., dissenting) (providing a comprehensive discussion 860
of the background of the FMLA). Thus, in this respect I cannot 861
agree with the majority that “Congress identified no pattern of 862
discrimination by the States with respect to the granting of 863
employment leave for the purpose of providing family care,” nor can 864
I agree that “the legislative record for this provision is devoid 865
of evidence of public sector discrimination” against the 866
temporarily disabled, as this was precisely what the PDA and then 867
the FMLA were enacted in response to. Maj.Op. at 10, 11. 868
Thus, even under the majority’s reasoning, I believe there is 869
more than a sufficient evidentiary and factual predicate in the 870

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legislative record to support Congress’s determination that the 871
FMLA was a rational means of deterring and preventing sex 872
discrimination by governmental employers and thus was enacted 873
pursuant to its section 5 powers. As all parties agree that 874
Congress provided the necessary clear statement of its intent to 875
abrogate, the FMLA as appropriate section 5 legislation properly 876
abrogates the States’ Eleventh Amendment immunity under this 877
rationale as well. 878

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879

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