NEVADA DEPARTMENT OF HUMAN RESOURCES et al. v. HIBBS et al.

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721 OCTOBER TERM, 2002
Syllabus
NEVADA DEPARTMENT OF HUMAN RESOURCES
et al. v. HIBBS et al.
certiorari to the united states court of appeals for
the ninth circuit
No. 01–1368. Argued January 15, 2003—Decided May 27, 2003
Respondent Hibbs (hereinafter respondent), an employee of the Nevada
Department of Human Resources (Department), sought leave to care for
his ailing wife under the Family and Medical Leave Act of 1993 (FMLA),
which entitles an eligible employee to take up to 12 work weeks of
unpaid leave annually for the onset of a “serious health condition” in the
employee’s spouse and for other reasons, 29 U. S. C. § 2612(a)(1)(C).
The Department granted respondent’s request for the full 12 weeks of
FMLA leave, but eventually informed him that he had exhausted
that leave and that he must report to work by a certain date. Respond-
ent failed to do so and was terminated. Pursuant to FMLA provisions
creating a private right of action to seek both equitable relief and
money damages “against any employer (including a public agency),”
§ 2617(a)(2), that “interfere[d] with, restrain[ed], or den[ied] the exercise
of ” FMLA rights, § 2615(a)(1), respondent sued petitioners, the Depart-
ment and two of its officers, in Federal District Court seeking damages
and injunctive and declaratory relief for, inter alia, violations of
§ 2612(a)(1)(C). The court awarded petitioners summary judgment on
the grounds that the FMLA claim was barred by the Eleventh Amend-
ment and that respondent’s Fourteenth Amendment rights had not been
violated. The Ninth Circuit reversed.
Held: State employees may recover money damages in federal court in
the event of the State’s failure to comply with the FMLA’s family-care
provision. Congress may abrogate the States’ Eleventh Amendment
immunity from suit in federal court if it makes its intention to abrogate
unmistakably clear in the language of the statute and acts pursuant to
a valid exercise of its power under § 5 of the Fourteenth Amendment.
See, e. g., Board of Trustees of Univ. of Ala. v. Garrett, 531 U. S. 356,
363. The FMLA satisfies the clear statement rule. See Kimel v. Flor-
ida Bd. of Regents, 528 U. S. 62, 73–78. Congress also acted within its
authority under § 5 of the Fourteenth Amendment when it sought to
abrogate the States’ immunity for purposes of the FMLA’s family-leave
provision. In the exercise of its § 5 power, Congress may enact so-
called prophylactic legislation that proscribes facially constitutional con-

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722 NEVADA DEPT. OF HUMAN RESOURCES v. HIBBS
Syllabus
duct in order to prevent and deter unconstitutional conduct, e. g., City
of Boerne v. Flores, 521 U. S. 507, 536, but it may not attempt to sub-
stantively redefine the States’ legal obligations, Kimel, supra, at 88.
The test for distinguishing appropriate prophylactic legislation from
substantive redefinition is that valid § 5 legislation must exhibit “con-
gruence and proportionality between the injury to be prevented or rem-
edied and the means adopted to that end.” City of Boerne, supra, at
520. The FMLA aims to protect the right to be free from gender-based
discrimination in the workplace. Statutory classifications that distin-
guish between males and females are subject to heightened scrutiny,
see, e. g., Craig v. Boren, 429 U. S. 190, 197–199; i. e., they must “serv[e]
important governmental objectives,” and “the discriminatory means
employed [must be] substantially related to the achievement of those
objectives,” United States v. Virginia, 518 U. S. 515, 533. When it
enacted the FMLA, Congress had before it significant evidence of a
long and extensive history of sex discrimination with respect to the
administration of leave benefits by the States, which is weighty enough
to justify the enactment of prophylactic § 5 legislation. Cf. Fitzpatrick
v. Bitzer, 427 U. S. 445, 456. Garrett, supra, and Kimel, supra, in which
the Court reached the opposite conclusion, are distinguished on the
ground that the § 5 legislation there at issue responded to a purported
tendency of state officials to make age- or disability-based distinctions,
characteristics that are not judged under a heightened review standard,
but pass equal protection muster if there is a rational basis for enacting
them. See, e. g., Kimel, supra, at 86. Here, because the standard for
demonstrating the constitutionality of a gender-based classification is
more difficult to meet than the rational-basis test, it was easier for Con-
gress to show a pattern of state constitutional violations. Cf. South
Carolina v. Katzenbach, 383 U. S. 301, 308–313. The impact of the dis-
crimination targeted by the FMLA, which is based on mutually reinforc-
ing stereotypes that only women are responsible for family caregiving
and that men lack domestic responsibilities, is significant. Moreover,
Congress’ chosen remedy, the FMLA’s family-care provision, is “congru-
ent and proportional to the targeted violation,” Garrett, supra, at 374.
Congress had already tried unsuccessfully to address this problem
through Title VII of the Civil Rights Act of 1964 and the Pregnancy
Discrimination Act. Where previous legislative attempts have failed,
see Katzenbach, supra, at 313, such problems may justify added prophy-
lactic measures in response, Kimel, supra, at 88. By creating an
across-the-board, routine employment benefit for all eligible employees,
Congress sought to ensure that family-care leave would no longer be
stigmatized as an inordinate drain on the workplace caused by female

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employees, and that employers could not evade leave obligations simply
by hiring men. Unlike the statutes at issue in City of Boerne, Kimel,
and Garrett, which applied broadly to every aspect of state employers’
operations, the FMLA is narrowly targeted at the faultline between
work and family—precisely where sex-based overgeneralization has
been and remains strongest—and affects only one aspect of the employ-
ment relationship. Also significant are the many other limitations that
Congress placed on the FMLA’s scope. See Florida Prepaid Postsec-
ondary Ed. Expense Bd. v. College Savings Bank, 527 U. S. 627, 647.
For example, the FMLA requires only unpaid leave, § 2612(a)(1); applies
only to employees who have worked for the employer for at least one
year and provided 1,250 hours of service within the last 12 months,
§ 2611(2)(A); and does not apply to employees in high-ranking or sensi-
tive positions, including state elected officials, their staffs, and appointed
policymakers, §§ 2611(2)(B)(i) and (3), 203(e)(2)(C). Pp. 726–740.
273 F. 3d 844, affirmed.
Rehnquist, C. J., delivered the opinion of the Court, in which O’Con-
nor, Souter, Ginsburg, and Breyer, JJ., joined. Souter, J., filed a
concurring opinion, in which Ginsburg and Breyer, JJ., joined, post,
p. 740. Stevens, J., filed an opinion concurring in the judgment, post,
p. 740. Scalia, J., filed a dissenting opinion, post, p. 741. Kennedy, J.,
filed a dissenting opinion, in which Scalia and Thomas, JJ., joined, post,
p. 744.
Paul G. Taggart, Deputy Attorney General of Nevada, ar-
gued the cause for petitioners. With him on the briefs were
Frankie Sue Del Papa, Attorney General, and Traci L.
Lovitt.
Cornelia T. L. Pillard argued the cause for respondent
Hibbs. With her on the brief were Jonathan J. Frankel,
Judith L. Lichtman, and Treva J. Hearne.
Assistant Attorney General Dinh argued the cause for the
United States. With him on the brief were Solicitor Gen-
eral Olson, Assistant Attorneys General Boyd and McCal-
lum, Deputy Solicitor General Clement, Patricia A. Millett,
Mark B. Stern, and Kathleen Kane.*
*Briefs of amici curiae urging reversal were filed for the State of Ala-
bama et al. by Bill Pryor, Attorney General of Alabama, Nathan A. For-
rester, Solicitor General, and Charles B. Campbell, Deputy Solicitor Gen-

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724 NEVADA DEPT. OF HUMAN RESOURCES v. HIBBS
Opinion of the Court
Chief Justice Rehnquist delivered the opinion of the
Court.
The Family and Medical Leave Act of 1993 (FMLA or Act)
entitles eligible employees to take up to 12 work weeks of
unpaid leave annually for any of several reasons, including
the onset of a “serious health condition” in an employee’s
spouse, child, or parent. 107 Stat. 9, 29 U. S. C. § 2612(a)
(1)(C). The Act creates a private right of action to seek
both equitable relief and money damages “against any em-
ployer (including a public agency) in any Federal or State
court of competent jurisdiction,” § 2617(a)(2), should that em-
eral, and by the Attorneys General for their respective States as follows:
Bruce M. Botelho of Alaska, M. Jane Brady of Delaware, Earl I. Anzai
of Hawaii, Steve Carter of Indiana, Don Stenberg of Nebraska, Betty D.
Montgomery of Ohio, W. A. Drew Edmondson of Oklahoma, Charles M.
Condon of South Carolina, Paul G. Summers of Tennessee, John Cornyn
of Texas, Mark Shurtleff of Utah, and Jerry W. Kilgore of Virginia; for
the Coalition for Local Sovereignty by Kenneth B. Clark; and for the Pa-
cific Legal Foundation by Deborah J. La Fetra.
Briefs of amici curiae urging affirmance were filed for the State of New
York et al. by Eliot Spitzer, Attorney General of New York, Caitlin J.
Halligan, Solicitor General, Michelle Aronowitz, Deputy Solicitor Gen-
eral, Denise A. Hartman, Robert H. Easton, and David Axinn, Assistant
Solicitors General, and Hilary Klein, Assistant Attorney General, and by
the Attorneys General for their respective States as follows: Richard Blu-
menthal of Connecticut, James Ryan of Illinois, Michael Hatch of Minne-
sota, Patricia A. Madrid of New Mexico, and Christine O. Gregoire of
Washington; for the American Federation of Labor and Congress of Indus-
trial Organizations by Jonathan P. Hiatt, James B. Coppess, Laurence
Gold, and Michael H. Gottesman; for the Lawyers’ Committee for Civil
Rights Under Law et al. by Sidney S. Rosdeitcher, Barbara R. Arnwine,
Thomas J. Henderson, Michael Foreman, Vincent A. Eng, Dennis Court-
land Hayes, and Angela Ciccolo; for the National Women’s Law Center
et al. by Walter Dellinger, Pamela Harris, Marcia D. Greenberger, Judith
C. Appelbaum, and Dina R. Lassow; for Senator Christopher Dodd et al.
by Mark E. Haddad and Carter G. Phillips; and for Alice Kessler-Harris
et al. by Isabelle Katz Pinzler, Conrad K. Harper, and William T.
Russell, Jr.

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Opinion of the Court
ployer “interfere with, restrain, or deny the exercise of ”
FMLA rights, § 2615(a)(1). We hold that employees of the
State of Nevada may recover money damages in the event
of the State’s failure to comply with the family-care provision
of the Act.
Petitioners include the Nevada Department of Human Re-
sources (Department) and two of its officers. Respondent
William Hibbs (hereinafter respondent) worked for the De-
partment’s Welfare Division. In April and May 1997, he
sought leave under the FMLA to care for his ailing wife,
who was recovering from a car accident and neck surgery.
The Department granted his request for the full 12 weeks of
FMLA leave and authorized him to use the leave intermit-
tently as needed between May and December 1997. Re-
spondent did so until August 5, 1997, after which he did not
return to work. In October 1997, the Department informed
respondent that he had exhausted his FMLA leave, that no
further leave would be granted, and that he must report to
work by November 12, 1997. Respondent failed to do so and
was terminated.
Respondent sued petitioners in the United States District
Court seeking damages and injunctive and declaratory relief
for, inter alia, violations of 29 U. S. C. § 2612(a)(1)(C). The
District Court awarded petitioners summary judgment on
the grounds that the FMLA claim was barred by the Elev-
enth Amendment and that respondent’s Fourteenth Amend-
ment rights had not been violated. Respondent appealed,
and the United States intervened under 28 U. S. C. § 2403 to
defend the validity of the FMLA’s application to the States.
The Ninth Circuit reversed. 273 F. 3d 844 (2001).
We granted certiorari, 536 U. S. 938 (2002), to resolve a
split among the Courts of Appeals on the question whether
an individual may sue a State for money damages in federal
court for violation of § 2612(a)(1)(C). Compare Kazmier v.

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Opinion of the Court
Widmann, 225 F. 3d 519, 526, 529 (CA5 2000), with 273 F. 3d
844 (case below).
For over a century now, we have made clear that the Con-
stitution does not provide for federal jurisdiction over suits
against nonconsenting States. Board of Trustees of Univ.
of Ala. v. Garrett, 531 U. S. 356, 363 (2001); Kimel v. Florida
Bd. of Regents, 528 U. S. 62, 72–73 (2000); College Savings
Bank v. Florida Prepaid Postsecondary Ed. Expense Bd.,
527 U. S. 666, 669–670 (1999); Seminole Tribe of Fla. v. Flor-
ida, 517 U. S. 44, 54 (1996); Hans v. Louisiana, 134 U. S. 1,
15 (1890).
Congress may, however, abrogate such immunity in federal
court if it makes its intention to abrogate unmistakably clear
in the language of the statute and acts pursuant to a valid
exercise of its power under § 5 of the Fourteenth Amend-
ment. See Garrett, supra, at 363; Blatchford v. Native Vil-
lage of Noatak, 501 U. S. 775, 786 (1991) (citing Dellmuth v.
Muth, 491 U. S. 223, 228 (1989)). The clarity of Congress’
intent here is not fairly debatable. The Act enables employ-
ees to seek damages “against any employer (including a pub-
lic agency) in any Federal or State court of competent juris-
diction,” 29 U. S. C. § 2617(a)(2), and Congress has defined
“public agency” to include both “the government of a State
or political subdivision thereof ” and “any agency of . . .
a State, or a political subdivision of a State,” §§ 203(x),
2611(4)(A)(iii). We held in Kimel that, by using identi-
cal language in the Age Discrimination in Employment Act
of 1967 (ADEA), 81 Stat. 602, as amended, 29 U. S. C.
§ 621 et seq., Congress satisfied the clear statement rule of
Dellmuth. 528 U. S., at 73–78. This case turns, then, on
whether Congress acted within its constitutional authority
when it sought to abrogate the States’ immunity for pur-
poses of the FMLA’s family-leave provision.
In enacting the FMLA, Congress relied on two of the pow-
ers vested in it by the Constitution: its Article I commerce
power and its power under § 5 of the Fourteenth Amendment

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to enforce that Amendment’s guarantees. 1 Congress may
not abrogate the States’ sovereign immunity pursuant to its
Article I power over commerce. Seminole Tribe, supra.
Congress may, however, abrogate States’ sovereign immu-
nity through a valid exercise of its § 5 power, for “the Elev-
enth Amendment, and the principle of state sovereignty
which it embodies, are necessarily limited by the enforce-
ment provisions of § 5 of the Fourteenth Amendment.”
Fitzpatrick v. Bitzer, 427 U. S. 445, 456 (1976) (citation omit-
ted). See also Garrett, supra, at 364; Kimel, supra, at 80.
Two provisions of the Fourteenth Amendment are rele-
vant here: Section 5 grants Congress the power “to enforce”
the substantive guarantees of § 1—among them, equal pro-
tection of the laws—by enacting “appropriate legislation.”
Congress may, in the exercise of its § 5 power, do more than
simply proscribe conduct that we have held unconstitutional.
“ ‘Congress’ power “to enforce” the Amendment includes the
authority both to remedy and to deter violation of rights
guaranteed thereunder by prohibiting a somewhat broader
swath of conduct, including that which is not itself forbidden
by the Amendment’s text.’ ” Garrett, supra, at 365 (quoting
Kimel, supra, at 81); City of Boerne v. Flores, 521 U. S. 507,
536 (1997); Katzenbach v. Morgan, 384 U. S. 641, 658 (1966).
In other words, Congress may enact so-called prophylactic
1 Compare 29 U. S. C. § 2601(b)(1) (“It is the purpose of this Act . . . to
balance the demands of the workplace with the needs of families, to pro-
mote the stability and economic security of families, and to promote na-
tional interests in preserving family integrity”) with § 2601(b)(5) (“to pro-
mote the goal of equal employment opportunity for women and men,
pursuant to [the Equal Protection C]lause”) and § 2601(b)(4) (“to accom-
plish [the Act’s other purposes] in a manner that, consistent with the Equal
Protection Clause . . . , minimizes the potential for employment discrimina-
tion on the basis of sex”). See also S. Rep. No. 103–3, p. 16 (1993) (the
FMLA “is based not only on the Commerce Clause, but also on the guaran-
tees of equal protection and due process embodied in the 14th Amend-
ment”); H. R. Rep. No. 103–8, pt. 1, p. 29 (1993) (same).

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Opinion of the Court
legislation that proscribes facially constitutional conduct, in
order to prevent and deter unconstitutional conduct.
City of Boerne also confirmed, however, that it falls to this
Court, not Congress, to define the substance of constitutional
guarantees. 521 U. S., at 519–524. “The ultimate interpre-
tation and determination of the Fourteenth Amendment’s
substantive meaning remains the province of the Judicial
Branch.” Kimel, 528 U. S., at 81. Section 5 legislation
reaching beyond the scope of § 1’s actual guarantees must
be an appropriate remedy for identified constitutional viola-
tions, not “an attempt to substantively redefine the States’
legal obligations.” Id., at 88. We distinguish appropriate
prophylactic legislation from “substantive redefinition of the
Fourteenth Amendment right at issue,” id., at 81, by apply-
ing the test set forth in City of Boerne: Valid § 5 legislation
must exhibit “congruence and proportionality between the
injury to be prevented or remedied and the means adopted
to that end,” 521 U. S., at 520.
The FMLA aims to protect the right to be free from
gender-based discrimination in the workplace.2 We have
held that statutory classifications that distinguish between
males and females are subject to heightened scrutiny. See,
e. g., Craig v. Boren, 429 U. S. 190, 197–199 (1976). For a
gender-based classification to withstand such scrutiny, it
must “serv[e] important governmental objectives,” and “the
discriminatory means employed [must be] substantially re-
lated to the achievement of those objectives.” United
2 The text of the Act makes this clear. Congress found that, “due to the
nature of the roles of men and women in our society, the primary responsi-
bility for family caretaking often falls on women, and such responsibility
affects the working lives of women more than it affects the working lives
of men.” 29 U. S. C. § 2601(a)(5). In response to this finding, Congress
sought “to accomplish the [Act’s other] purposes . . . in a manner that . . .
minimizes the potential for employment discrimination on the basis of sex
by ensuring generally that leave is available . . . on a gender-neutral
basis[,] and to promote the goal of equal employment opportunity for
women and men . . . .” §§ 2601(b)(4) and (5) (emphasis added).

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States v. Virginia, 518 U. S. 515, 533 (1996) (citations and
internal quotation marks omitted). The State’s justification
for such a classification “must not rely on overbroad general-
izations about the different talents, capacities, or preferences
of males and females.” Ibid. We now inquire whether
Congress had evidence of a pattern of constitutional viola-
tions on the part of the States in this area.
The history of the many state laws limiting women’s em-
ployment opportunities is chronicled in—and, until relatively
recently, was sanctioned by—this Court’s own opinions.
For example, in Bradwell v. State, 16 Wall. 130 (1873) (Illi-
nois), and Goesaert v. Cleary, 335 U. S. 464, 466 (1948) (Michi-
gan), the Court upheld state laws prohibiting women from
practicing law and tending bar, respectively. State laws fre-
quently subjected women to distinctive restrictions, terms,
conditions, and benefits for those jobs they could take. In
Muller v. Oregon, 208 U. S. 412, 419, n. 1 (1908), for example,
this Court approved a state law limiting the hours that
women could work for wages, and observed that 19 States
had such laws at the time. Such laws were based on the
related beliefs that (1) a woman is, and should remain, “the
center of home and family life,” Hoyt v. Florida, 368 U. S. 57,
62 (1961), and (2) “a proper discharge of [a woman’s] maternal
functions—having in view not merely her own health, but
the well-being of the race—justif[ies] legislation to protect
her from the greed as well as the passion of man,” Muller,
supra, at 422. Until our decision in Reed v. Reed, 404 U. S.
71 (1971), “it remained the prevailing doctrine that govern-
ment, both federal and state, could withhold from women
opportunities accorded men so long as any ‘basis in rea-
son’ ”—such as the above beliefs—“could be conceived for the
discrimination.” Virginia, supra, at 531 (quoting Goesaert,
supra, at 467).
Congress responded to this history of discrimination by
abrogating States’ sovereign immunity in Title VII of the
Civil Rights Act of 1964, 78 Stat. 255, 42 U. S. C. § 2000e–2(a),

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Opinion of the Court
and we sustained this abrogation in Fitzpatrick. But state
gender discrimination did not cease. “[I]t can hardly be
doubted that . . . women still face pervasive, although at
times more subtle, discrimination . . . in the job market.”
Frontiero v. Richardson, 411 U. S. 677, 686 (1973). Accord-
ing to evidence that was before Congress when it enacted
the FMLA, States continue to rely on invalid gender stereo-
types in the employment context, specifically in the adminis-
tration of leave benefits. Reliance on such stereotypes can-
not justify the States’ gender discrimination in this area.
Virginia, supra, at 533. The long and extensive history
of sex discrimination prompted us to hold that measures
that differentiate on the basis of gender warrant heightened
scrutiny; here, as in Fitzpatrick, the persistence of such
unconstitutional discrimination by the States justifies Con-
gress’ passage of prophylactic § 5 legislation.
As the FMLA’s legislative record reflects, a 1990 Bureau
of Labor Statistics (BLS) survey stated that 37 percent of
surveyed private-sector employees were covered by mater-
nity leave policies, while only 18 percent were covered by
paternity leave policies. S. Rep. No. 103–3, pp. 14–15 (1993).
The corresponding numbers from a similar BLS survey
the previous year were 33 percent and 16 percent, respec-
tively. Ibid. While these data show an increase in the per-
centage of employees eligible for such leave, they also show
a widening of the gender gap during the same period. Thus,
stereotype-based beliefs about the allocation of family du-
ties remained firmly rooted, and employers’ reliance on
them in establishing discriminatory leave policies remained
widespread. 3
3 While this and other material described leave policies in the private
sector, a 50-state survey also before Congress demonstrated that “[t]he
proportion and construction of leave policies available to public sector em-
ployees differs little from those offered private sector employees.” The
Parental and Medical Leave Act of 1986: Joint Hearing before the Subcom-
mittee on Labor-Management Relations and the Subcommittee on Labor

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Congress also heard testimony that “[p]arental leave for
fathers . . . is rare. Even . . . [w]here child-care leave policies
do exist, men, both in the public and private sectors, receive
notoriously discriminatory treatment in their requests for
such leave.” Joint Hearing 147 (Washington Council of
Lawyers) (emphasis added). Many States offered women
extended “maternity” leave that far exceeded the typical 4-
to 8-week period of physical disability due to pregnancy and
childbirth, 4 but very few States granted men a parallel bene-
fit: Fifteen States provided women up to one year of ex-
tended maternity leave, while only four provided men with
the same. M. Lord & M. King, The State Reference Guide
to Work-Family Programs for State Employees 30 (1991).
This and other differential leave policies were not attribut-
able to any differential physical needs of men and women,
but rather to the pervasive sex-role stereotype that caring
for family members is women’s work. 5
Standards of the House Committee on Education and Labor, 99th Cong.,
2d Sess., 33 (1986) (hereinafter Joint Hearing) (statement of Meryl Frank,
Director of the Yale Bush Center Infant Care Leave Project). See also
id., at 29–30.
4 See, e. g., id., at 16 (six weeks is the medically recommended pregnancy
disability leave period); H. R. Rep. No. 101–28, pt. 1, p. 30 (1989) (referring
to Pregnancy Discrimination Act legislative history establishing four to
eight weeks as the medical recovery period for a normal childbirth).
5 For example, state employers’ collective-bargaining agreements often
granted extended “maternity” leave of six months to a year to women
only. Gerald McEntee, President of the American Federation of State,
County and Municipal Employees, AFL–CIO, testified that “the vast ma-
jority of our contracts, even though we look upon them with great pride,
really cover essentially maternity leave, and not paternity leave.” The
Parental and Medical Leave Act of 1987: Hearings before the Subcommit-
tee on Children, Family, Drugs and Alcoholism of the Senate Committee
on Labor and Human Resources, 100th Cong., 1st Sess., pt. 1, p. 385 (1987)
(hereinafter 1987 Senate Labor Hearings). In addition, state leave laws
often specified that catchall leave-without-pay provisions could be used for
extended maternity leave, but did not authorize such leave for paternity
purposes. See, e. g., Family and Medical Leave Act of 1987: Joint Hearing
before the House Committee on Post Office and Civil Service, 100th Cong.,

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732 NEVADA DEPT. OF HUMAN RESOURCES v. HIBBS
Opinion of the Court
Finally, Congress had evidence that, even where state laws
and policies were not facially discriminatory, they were ap-
plied in discriminatory ways. It was aware of the “serious
problems with the discretionary nature of family leave,” be-
cause when “the authority to grant leave and to arrange the
length of that leave rests with individual supervisors,” it
leaves “employees open to discretionary and possibly un-
equal treatment.” H. R. Rep. No. 103–8, pt. 2, pp. 10–11
(1993). Testimony supported that conclusion, explaining
that “[t]he lack of uniform parental and medical leave policies
in the work place has created an environment where [sex]
discrimination is rampant.” 1987 Senate Labor Hearings,
pt. 2, at 170 (testimony of Peggy Montes, Mayor’s Commis-
sion on Women’s Affairs, City of Chicago).
In spite of all of the above evidence, Justice Kennedy
argues in dissent that Congress’ passage of the FMLA was
unnecessary because “the States appear to have been ahead
of Congress in providing gender-neutral family leave bene-
fits,” post, at 750, and points to Nevada’s leave policies in
particular, post, at 755. However, it was only “[s]ince Fed-
eral family leave legislation was first introduced” that the
States had even “begun to consider similar family leave ini-
tiatives.” S. Rep. No. 103–3, at 20; see also S. Rep. No. 102–
1st Sess., 2–5 (1987) (Rep. Gary Ackerman recounted suffering expressly
sex-based denial of unpaid leave of absence where benefit was ostensibly
available for “child care leave”).
Evidence pertaining to parenting leave is relevant here because state
discrimination in the provision of both types of benefits is based on the
same gender stereotype: that women’s family duties trump those of the
workplace. Justice Kennedy’s dissent (hereinafter dissent) ignores this
common foundation that, as Congress found, has historically produced dis-
crimination in the hiring and promotion of women. See post, at 748–749.
Consideration of such evidence does not, as the dissent contends, expand
our § 5 inquiry to include “general gender-based stereotypes in employ-
ment.” Post, at 749 (emphasis added). To the contrary, because parent-
ing and family leave address very similar situations in which work and
family responsibilities conflict, they implicate the same stereotypes.

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68, p. 77 (1991) (minority views of Sen. Durenberger) (“[S]o
few states have elected to enact similar legislation at the
state level”).
Furthermore, the dissent’s statement that some States
“had adopted some form of family-care leave” before the
FMLA’s enactment, post, at 750, glosses over important
shortcomings of some state policies. First, seven States had
childcare leave provisions that applied to women only. In-
deed, Massachusetts required that notice of its leave provi-
sions be posted only in “establishment[s] in which females
are employed.” 6 These laws reinforced the very stereo-
types that Congress sought to remedy through the FMLA.
Second, 12 States provided their employees no family leave,
beyond an initial childbirth or adoption, to care for a seri-
ously ill child or family member. 7 Third, many States pro-
6 Mass. Gen. Laws, ch. 149, § 105D (West 1997) (providing leave to “fe-
male employee[s]” for childbirth or adoption); see also 3 Colo. Code Regs.
§ 708–1, Rule 80.8 (2002) (pregnancy disability leave only); Iowa Code
§ 216.6(2) (2000) (former § 601A.6(2)) (same); Kan. Admin. Regs. 21–32–6(d)
(2003) (“a reasonable period” of maternity leave for female employees
only); N. H. Stat. Ann. § 354–A:7(VI)(b) (Michie Supp. 2000) (pregnancy
disability leave only); La. Stat. Ann. § 23:1008(A)(2) (West Supp. 1993) (re-
pealed 1997) (4-month maternity leave for female employees only); Tenn.
Code Ann. § 4–21–408(a) (1998) (same).
The dissent asserts that four of these schemes—those of Colorado, Iowa,
Louisiana, and New Hampshire—concern “pregnancy disability leave
only.” Post, at 752. But Louisiana provided women with four months
of such leave, which far exceeds the medically recommended pregnancy
disability leave period of six weeks. See n. 4, supra. This gender-
discriminatory policy is not attributable to any different physical needs of
men and women, but rather to the invalid stereotypes that Congress
sought to counter through the FMLA. See supra, at 731.
7 See 3 Colo. Code Regs. § 708–1, Rule 80.8 (2002); Del. Code Ann., Tit.
29, § 5116 (1997); Iowa Code § 216.6(2) (2000); Kan. Admin. Regs. 21–32–6
(2003); Ky. Rev. Stat. Ann. § 337.015 (Michie 2001); La. Stat. Ann.
§ 23:1008(A)(2) (West Supp. 1993); Mass. Gen. Laws, ch. 149, § 105(D) (West
1997); Mo. Rev. Stat. § 105.271 (2000); N. H. Stat. Ann. § 354–A:7(VI)(b)
(Michie Supp. 2000); N. Y. Lab. Law § 201–c (West 2002); Tenn. Code

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734 NEVADA DEPT. OF HUMAN RESOURCES v. HIBBS
Opinion of the Court
vided no statutorily guaranteed right to family leave, offer-
ing instead only voluntary or discretionary leave programs.
Three States left the amount of leave time primarily in em-
ployers’ hands.8 Congress could reasonably conclude that
such discretionary family-leave programs would do little to
combat the stereotypes about the roles of male and female
employees that Congress sought to eliminate. Finally, four
States provided leave only through administrative regula-
tions or personnel policies, which Congress could reasonably
conclude offered significantly less firm protection than a fed-
eral law. 9 Against the above backdrop of limited state leave
policies, no matter how generous petitioners’ own may have
been, see post, at 755 (dissent), Congress was justified in
enacting the FMLA as remedial legislation. 10
Ann. § 4–21–408(a) (1998); U. S. Dept. of Labor, Women’s Bureau, State
Maternity/Family Leave Law, p. 12 (June 1993) (citing a Virginia person-
nel policy).
8 See 3 Colo. Code Regs. § 708–1, Rule 80.8 (2002); Kan. Admin. Regs.
21–32–6 (2003); N. H. Stat. Ann. § 354–A:7(VI)(b) (Michie Supp. 2000).
Oklahoma offered only a system by which employees could voluntarily
donate leave time for colleagues’ family emergencies. Okla. Stat., Tit. 74,
§ 840–2.22 (historical note) (West 2002).
9 See 3 Colo. Code Regs. § 708–1, Rule 80.8 (2002); Kan. Admin. Regs.
21–32–6 (2003); Wis. Admin. Code ch. DWD 225 (1997) (former ch. ILHR
225); State Maternity/Family Leave Law, supra, at 12 (Virginia).
10 Contrary to the dissent’s belief, we do not hold that Congress may
“abrogat[e] state immunity from private suits whenever the State’s social
benefits program is not enshrined in the statutory code and provides em-
ployers with discretion,” post, at 753, or when a State does not confer
social benefits “as generous or extensive as Congress would later deem
appropriate,” post, at 752. The dissent misunderstands the purpose of
the FMLA’s family-leave provision. The FMLA is not a “substantive en-
titlement program,” post, at 754; Congress did not create a particular leave
policy for its own sake. See infra, at 737–738. Rather, Congress sought
to adjust family-leave policies in order to eliminate their reliance on, and
perpetuation of, invalid stereotypes, and thereby dismantle persisting
gender-based barriers to the hiring, retention, and promotion of women in
the workplace. In pursuing that goal, for the reasons discussed above,

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Opinion of the Court
In sum, the States’ record of unconstitutional participation
in, and fostering of, gender-based discrimination in the ad-
ministration of leave benefits is weighty enough to justify
the enactment of prophylactic § 5 legislation. 11
We reached the opposite conclusion in Garrett and Kimel.
In those cases, the § 5 legislation under review responded
to a purported tendency of state officials to make age- or
disability-based distinctions. Under our equal protection
case law, discrimination on the basis of such characteristics is
not judged under a heightened review standard, and passes
muster if there is “a rational basis for doing so at a class-
based level, even if it ‘is probably not true’ that those reasons
are valid in the majority of cases.” Kimel, 528 U. S., at 86
(quoting Gregory v. Ashcroft, 501 U. S. 452, 473 (1991)). See
also Garrett, 531 U. S., at 367 (“States are not required by
the Fourteenth Amendment to make special accommodations
for the disabled, so long as their actions toward such individ-
uals are rational”). Thus, in order to impugn the constitu-
tionality of state discrimination against the disabled or the
elderly, Congress must identify, not just the existence of age-
or disability-based state decisions, but a “widespread pat-
tern” of irrational reliance on such criteria. Kimel, supra,
at 90. We found no such showing with respect to the ADEA
and Title I of the Americans with Disabilities Act of 1990
(ADA). Kimel, supra, at 89; Garrett, supra, at 368.
supra, at 733–734 and this page, Congress reasonably concluded that state
leave laws and practices should be brought within the Act.
11 Given the extent and specificity of the above record of unconstitutional
state conduct, it is difficult to understand the dissent’s accusation that we
rely on “a simple recitation of a general history of employment discrimina-
tion against women.” Post, at 746. As we stated above, our holding
rests on congressional findings that, at the time the FMLA was enacted,
States “rel[ied] on invalid gender stereotypes in the employment context,
specifically in the administration of leave benefits.” Supra, at 730 (em-
phasis added). See supra, at 730–732.

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Opinion of the Court
Here, however, Congress directed its attention to state
gender discrimination, which triggers a heightened level of
scrutiny. See, e. g., Craig, 429 U. S., at 197–199. Because
the standard for demonstrating the constitutionality of a
gender-based classification is more difficult to meet than our
rational-basis test—it must “serv[e] important governmental
objectives” and be “substantially related to the achievement
of those objectives,” Virginia, 518 U. S., at 533—it was eas-
ier for Congress to show a pattern of state constitutional
violations. Congress was similarly successful in South Car-
olina v. Katzenbach, 383 U. S. 301, 308–313 (1966), where we
upheld the Voting Rights Act of 1965: Because racial classifi-
cations are presumptively invalid, most of the States’ acts of
race discrimination violated the Fourteenth Amendment.
The impact of the discrimination targeted by the FMLA
is significant. Congress determined:
“Historically, denial or curtailment of women’s employ-
ment opportunities has been traceable directly to the
pervasive presumption that women are mothers first,
and workers second. This prevailing ideology about
women’s roles has in turn justified discrimination
against women when they are mothers or mothers-to-
be.” Joint Hearing 100.
Stereotypes about women’s domestic roles are reinforced
by parallel stereotypes presuming a lack of domestic respon-
sibilities for men. Because employers continued to regard
the family as the woman’s domain, they often denied men
similar accommodations or discouraged them from taking
leave. These mutually reinforcing stereotypes created a
self-fulfilling cycle of discrimination that forced women to
continue to assume the role of primary family caregiver, and
fostered employers’ stereotypical views about women’s com-
mitment to work and their value as employees. Those per-
ceptions, in turn, Congress reasoned, lead to subtle discrimi-
nation that may be difficult to detect on a case-by-case basis.

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Opinion of the Court
We believe that Congress’ chosen remedy, the family-care
leave provision of the FMLA, is “congruent and proportional
to the targeted violation,” Garrett, supra, at 374. Congress
had already tried unsuccessfully to address this problem
through Title VII and the amendment of Title VII by the
Pregnancy Discrimination Act, 42 U. S. C. § 2000e(k). Here,
as in Katzenbach, supra, Congress again confronted a “diffi-
cult and intractable proble[m],” Kimel, supra, at 88, where
previous legislative attempts had failed. See Katzenbach,
supra, at 313 (upholding the Voting Rights Act). Such prob-
lems may justify added prophylactic measures in response.
Kimel, supra, at 88.
By creating an across-the-board, routine employment ben-
efit for all eligible employees, Congress sought to ensure that
family-care leave would no longer be stigmatized as an inor-
dinate drain on the workplace caused by female employees,
and that employers could not evade leave obligations simply
by hiring men. By setting a minimum standard of family
leave for all eligible employees, irrespective of gender, the
FMLA attacks the formerly state-sanctioned stereotype that
only women are responsible for family caregiving, thereby
reducing employers’ incentives to engage in discrimination
by basing hiring and promotion decisions on stereotypes.
The dissent characterizes the FMLA as a “substantive en-
titlement program” rather than a remedial statute because
it establishes a floor of 12 weeks’ leave. Post, at 754. In
the dissent’s view, in the face of evidence of gender-based
discrimination by the States in the provision of leave bene-
fits, Congress could do no more in exercising its § 5 power
than simply proscribe such discrimination. But this position
cannot be squared with our recognition that Congress “is not
confined to the enactment of legislation that merely parrots
the precise wording of the Fourteenth Amendment,” but
may prohibit “a somewhat broader swath of conduct, includ-
ing that which is not itself forbidden by the Amendment’s
text.” Kimel, supra, at 81. For example, this Court has

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738 NEVADA DEPT. OF HUMAN RESOURCES v. HIBBS
Opinion of the Court
upheld certain prophylactic provisions of the Voting Rights
Act as valid exercises of Congress’ § 5 power, including the
literacy test ban and preclearance requirements for changes
in States’ voting procedures. See, e. g., Katzenbach v. Mor-
gan, 384 U. S. 641 (1966); Oregon v. Mitchell, 400 U. S. 112
(1970); South Carolina v. Katzenbach, supra.
Indeed, in light of the evidence before Congress, a statute
mirroring Title VII, that simply mandated gender equality
in the administration of leave benefits, would not have
achieved Congress’ remedial object. Such a law would allow
States to provide for no family leave at all. Where “[t]wo-
thirds of the nonprofessional caregivers for older, chronically
ill, or disabled persons are working women,” H. R. Rep.
No. 103–8, pt. 1, at 24; S. Rep. No. 103–3, at 7, and state
practices continue to reinforce the stereotype of women as
caregivers, such a policy would exclude far more women than
men from the workplace.
Unlike the statutes at issue in City of Boerne, Kimel, and
Garrett, which applied broadly to every aspect of state em-
ployers’ operations, the FMLA is narrowly targeted at the
faultline between work and family—precisely where sex-
based overgeneralization has been and remains strongest—
and affects only one aspect of the employment relationship.
Compare Ragsdale v. Wolverine World Wide, Inc., 535 U. S.
81, 91 (2002) (discussing the “important limitations of the
[FMLA’s] remedial scheme”), with City of Boerne, 521 U. S.,
at 532 (the “[s]weeping coverage” of the Religious Freedom
Restoration Act of 1993); Kimel, 528 U. S., at 91 (“the in-
discriminate scope of the [ADEA’s] substantive require-
ments”); and Garrett, 531 U. S., at 361 (the ADA prohibits
disability discrimination “in regard to [any] terms, condi-
tions, and privileges of employment” (internal quotation
marks omitted)).
We also find significant the many other limitations that
Congress placed on the scope of this measure. See Florida
Prepaid, 527 U. S., at 647 (“[W]here ‘a congressional enact-

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Opinion of the Court
ment pervasively prohibits constitutional state action in an
effort to remedy or to prevent unconstitutional state action,
limitations of this kind tend to ensure Congress’ means are
proportionate to ends legitimate under § 5’ ” (quoting City
of Boerne, supra, at 532–533)). The FMLA requires only
unpaid leave, 29 U. S. C. § 2612(a)(1), and applies only to
employees who have worked for the employer for at least
one year and provided 1,250 hours of service within the last
12 months, § 2611(2)(A). Employees in high-ranking or sen-
sitive positions are simply ineligible for FMLA leave; of
particular importance to the States, the FMLA expressly
excludes from coverage state elected officials, their staffs,
and appointed policymakers. §§ 2611(2)(B)(i) and (3), 203(e)
(2)(C). Employees must give advance notice of foreseeable
leave, § 2612(e), and employers may require certification by
a health care provider of the need for leave, § 2613. In
choosing 12 weeks as the appropriate leave floor, Congress
chose “a middle ground, a period long enough to serve
‘the needs of families’ but not so long that it would upset
‘the legitimate interests of employers.’ ” Ragsdale, supra,
at 94 (quoting 29 U. S. C. § 2601(b)). 12 Moreover, the cause
12 Congress established 12 weeks as a floor, thus leaving States free to
provide their employees with more family-leave time if they so choose.
See 29 U. S. C. § 2651(b) (“Nothing in this Act or any amendment made by
this Act shall be construed to supersede any provision of any State or
local law that provides greater family or medical leave rights than the
rights established under this Act or any amendment made by this Act”).
The dissent faults Congress for giving States this choice, arguing that the
FMLA’s terms do not bar States from granting more family-leave time to
women than to men. Post, at 756. But Justice Kennedy effectively
counters his own argument in his very next breath, recognizing that such
gender-based discrimination would “run afoul of the Equal Protection
Clause or Title VII.” Ibid. In crafting new legislation to remedy uncon-
stitutional state conduct, Congress may certainly rely on and take account
of existing laws. Indeed, Congress expressly did so here. See 29 U. S. C.
§ 2651(a) (“Nothing in this Act or any amendment made by this Act shall
be construed to modify or affect any Federal or State law prohibiting
discrimination on the basis of . . . sex . . .”).

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740 NEVADA DEPT. OF HUMAN RESOURCES v. HIBBS
Stevens, J., concurring in judgment
of action under the FMLA is a restricted one: The damages
recoverable are strictly defined and measured by actual mon-
etary losses, §§ 2617(a)(1)(A)(i)–(iii), and the accrual period
for backpay is limited by the Act’s 2-year statute of limita-
tions (extended to three years only for willful violations),
§§ 2617(c)(1) and (2).
For the above reasons, we conclude that § 2612(a)(1)(C) is
congruent and proportional to its remedial object, and can
“be understood as responsive to, or designed to prevent, un-
constitutional behavior.” City of Boerne, supra, at 532.
The judgment of the Court of Appeals is therefore
Affirmed.
Justice Souter, with whom Justice Ginsburg and Jus-
tice Breyer join, concurring.
Even on this Court’s view of the scope of congressional
power under § 5 of the Fourteenth Amendment, see Board
of Trustees of Univ. of Ala. v. Garrett, 531 U. S. 356 (2001);
Kimel v. Florida Bd. of Regents, 528 U. S. 62 (2000); Florida
Prepaid Postsecondary Ed. Expense Bd. v. College Savings
Bank, 527 U. S. 627 (1999), the Family and Medical Leave
Act of 1993 is undoubtedly valid legislation, and application
of the Act to the States is constitutional; the same conclu-
sions follow a fortiori from my own understanding of § 5, see
Garrett, supra, at 376 (Breyer, J., dissenting); Kimel, supra,
at 92 (Stevens, J., dissenting); Florida Prepaid, supra, at
648 (Stevens, J., dissenting); see also Katzenbach v. Mor-
gan, 384 U. S. 641, 650–651 (1966). I join the Court’s opinion
here without conceding the dissenting positions just cited or
the dissenting views expressed in Seminole Tribe of Fla. v.
Florida, 517 U. S. 44, 100 (1996) (Souter, J., dissenting).
Justice Stevens, concurring in the judgment.
Because I have never been convinced that an Act of Con-
gress can amend the Constitution and because I am uncer-

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741 Cite as: 538 U. S. 721 (2003)
Scalia, J., dissenting
tain whether the congressional enactment before us was
truly “ ‘needed to secure the guarantees of the Fourteenth
Amendment,’ ” I write separately to explain why I join the
Court’s judgment. Fitzpatrick v. Bitzer, 427 U. S. 445, 458
(1976) (Stevens, J., concurring in judgment) (quoting Katz-
enbach v. Morgan, 384 U. S. 641, 651 (1966)).
The plain language of the Eleventh Amendment poses no
barrier to the adjudication of this case because respondents
are citizens of Nevada. The sovereign immunity defense as-
serted by Nevada is based on what I regard as the second
Eleventh Amendment, which has its source in judge-made
common law, rather than constitutional text. Pennsylvania
v. Union Gas Co., 491 U. S. 1, 23 (1989) (Stevens, J., concur-
ring). As long as it clearly expresses its intent, Congress
may abrogate that common-law defense pursuant to its
power to regulate commerce “among the several States.”
U. S. Const., Art. I, § 8. The family-care provision of the
Family and Medical Leave Act of 1993 is unquestionably a
valid exercise of a power that is “broad enough to support
federal legislation regulating the terms and conditions of
state employment.” Fitzpatrick, 427 U. S., at 458 (Ste-
vens, J., concurring in judgment).* Accordingly, Nevada’s
sovereign immunity defense is without merit.
Justice Scalia, dissenting.
I join Justice Kennedy’s dissent, and add one further
observation: The constitutional violation that is a prerequi-
site to “prophylactic” congressional action to “enforce” the
Fourteenth Amendment is a violation by the State against
which the enforcement action is taken. There is no guilt
by association, enabling the sovereignty of one State to be
abridged under § 5 of the Fourteenth Amendment because of
violations by another State, or by most other States, or even
*See Stevens, “Two Questions About Justice,” 2003 U. Ill. L. Rev. 821
(discussing Fitzpatrick).

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742 NEVADA DEPT. OF HUMAN RESOURCES v. HIBBS
Scalia, J., dissenting
by 49 other States. We explained as much long ago in the
Civil Rights Cases, 109 U. S. 3, 14 (1883), which invalidated
a portion of the Civil Rights Act of 1875, purportedly based
on § 5, in part for the following reason:
“It applies equally to cases arising in states which have
the justest laws respecting the personal rights of citi-
zens, and whose authorities are ever ready to enforce
such laws as to those which arise in states that may have
violated the prohibition of the amendment.”
Congress has sometimes displayed awareness of this self-
evident limitation. That is presumably why the most
sweeping provisions of the Voting Rights Act of 1965—which
we upheld in City of Rome v. United States, 446 U. S. 156
(1980), as a valid exercise of congressional power under § 2
of the Fifteenth Amendment*—were restricted to States
“with a demonstrable history of intentional racial discrimina-
tion in voting,” id., at 177.
Today’s opinion for the Court does not even attempt to
demonstrate that each one of the 50 States covered by 29
U. S. C. § 2612(a)(1)(C) was in violation of the Fourteenth
Amendment. It treats “the States” as some sort of collec-
tive entity which is guilty or innocent as a body. “[T]he
States’ record of unconstitutional participation in, and fos-
tering of, gender-based discrimination,” it concludes, “is
weighty enough to justify the enactment of prophylactic § 5
legislation.” Ante, at 735. This will not do. Prophylaxis
in the sense of extending the remedy beyond the violation is
one thing; prophylaxis in the sense of extending the remedy
beyond the violator is something else. See City of Rome,
supra, at 177 (“Congress could rationally have concluded
*Section 2 of the Fifteenth Amendment is practically identical to § 5 of
the Fourteenth Amendment. Compare Amdt. 14, § 5 (“The Congress
shall have power to enforce, by appropriate legislation, the provisions of
this article”), with Amdt. 15, § 2 (“The Congress shall have power to en-
force this article by appropriate legislation”).

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Scalia, J., dissenting
that, because electoral changes by jurisdictions with a de-
monstrable history of intentional racial discrimination in
voting create the risk of purposeful discrimination, it was
proper to prohibit changes that have a discriminatory im-
pact” (emphasis added)).
When a litigant claims that legislation has denied him indi-
vidual rights secured by the Constitution, the court ordi-
narily asks first whether the legislation is constitutional as
applied to him. See Broadrick v. Oklahoma, 413 U. S. 601,
613 (1973). When, on the other hand, a federal statute is
challenged as going beyond Congress’s enumerated powers,
under our precedents the court first asks whether the statute
is unconstitutional on its face. Ante, at 727–728; Post, at
744 (Kennedy, J., dissenting); see United States v. Mor-
rison, 529 U. S. 598 (2000); City of Boerne v. Flores, 521 U. S.
507 (1997); United States v. Lopez, 514 U. S. 549 (1995). If
the statute survives this challenge, however, it stands to rea-
son that the court may, if asked, proceed to analyze whether
the statute (constitutional on its face) can be validly applied
to the litigant. In the context of § 5 prophylactic legislation
applied against a State, this would entail examining whether
the State has itself engaged in discrimination sufficient to
support the exercise of Congress’s prophylactic power.
It seems, therefore, that for purposes of defeating petition-
ers’ challenge, it would have been enough for respondents to
demonstrate that § 2612(a)(1)(C) was facially valid—i. e.,
that it could constitutionally be applied to some jurisdictions.
See United States v. Salerno, 481 U. S. 739, 745 (1987).
(Even that demonstration, for the reasons set forth by Jus-
tice Kennedy, has not been made.) But when it comes to
an as-applied challenge, I think Nevada will be entitled to
assert that the mere facts that (1) it is a State, and (2) some
States are bad actors, is not enough; it can demand that it
be shown to have been acting in violation of the Fourteenth
Amendment.

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744 NEVADA DEPT. OF HUMAN RESOURCES v. HIBBS
Kennedy, J., dissenting
Justice Kennedy, with whom Justice Scalia and Jus-
tice Thomas join, dissenting.
The Family and Medical Leave Act of 1993 makes explicit
the congressional intent to invoke § 5 of the Fourteenth
Amendment to abrogate state sovereign immunity and allow
suits for money damages in federal courts. Ante, at 726–
727, and n. 1. The specific question is whether Congress
may impose on the States this entitlement program of its
own design, with mandated minimums for leave time, and
then enforce it by permitting private suits for money dam-
ages against the States. This in turn must be answered by
asking whether subjecting States and their treasuries to
monetary liability at the insistence of private litigants is a
congruent and proportional response to a demonstrated
pattern of unconstitutional conduct by the States. See ante,
at 728; Board of Trustees of Univ. of Ala. v. Garrett, 531
U. S. 356, 365 (2001); City of Boerne v. Flores, 521 U. S. 507,
520 (1997). If we apply the teaching of these and related
cases, the family leave provision of the Act, 29 U. S. C.
§ 2612(a)(1)(C), in my respectful view, is invalid to the extent
it allows for private suits against the unconsenting States.
Congress does not have authority to define the substantive
content of the Equal Protection Clause; it may only shape
the remedies warranted by the violations of that guarantee.
City of Boerne, supra, at 519–520. This requirement has
special force in the context of the Eleventh Amendment,
which protects a State’s fiscal integrity from federal intru-
sion by vesting the States with immunity from private ac-
tions for damages pursuant to federal laws. The Commerce
Clause likely would permit the National Government to
enact an entitlement program such as this one; but when
Congress couples the entitlement with the authorization to
sue the States for monetary damages, it blurs the line of
accountability the State has to its own citizens. These basic
concerns underlie cases such as Garrett and Kimel v. Florida
Bd. of Regents, 528 U. S. 62 (2000), and should counsel far

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745 Cite as: 538 U. S. 721 (2003)
Kennedy, J., dissenting
more caution than the Court shows in holding § 2612(a)(1)(C)
is somehow a congruent and proportional remedy to an iden-
tified pattern of discrimination.
The Court is unable to show that States have engaged in
a pattern of unlawful conduct which warrants the remedy of
opening state treasuries to private suits. The inability to
adduce evidence of alleged discrimination, coupled with the
inescapable fact that the federal scheme is not a remedy but
a benefit program, demonstrates the lack of the requisite link
between any problem Congress has identified and the pro-
gram it mandated.
In examining whether Congress was addressing a demon-
strated “pattern of unconstitutional employment discrimina-
tion by the States,” the Court gives superficial treatment to
the requirement that we “identify with some precision the
scope of the constitutional right at issue.” Garrett, supra,
at 365, 368. The Court suggests the issue is “the right to
be free from gender-based discrimination in the workplace,”
ante, at 728, and then it embarks on a survey of our prece-
dents speaking to “[t]he history of the many state laws limit-
ing women’s employment opportunities,” ante, at 729. All
would agree that women historically have been subjected to
conditions in which their employment opportunities are more
limited than those available to men. As the Court acknowl-
edges, however, Congress responded to this problem by ab-
rogating States’ sovereign immunity in Title VII of the Civil
Rights Act of 1964, 42 U. S. C. § 2000e–2(a). Ante, at 729;
see also Fitzpatrick v. Bitzer, 427 U. S. 445 (1976). The pro-
vision now before us, 29 U. S. C. § 2612(a)(1)(C), has a differ-
ent aim than Title VII. It seeks to ensure that eligible em-
ployees, irrespective of gender, can take a minimum amount
of leave time to care for an ill relative.
The relevant question, as the Court seems to acknowledge,
is whether, notwithstanding the passage of Title VII and
similar state legislation, the States continued to engage in
widespread discrimination on the basis of gender in the pro-

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746 NEVADA DEPT. OF HUMAN RESOURCES v. HIBBS
Kennedy, J., dissenting
vision of family leave benefits. Ante, at 730. If such a pat-
tern were shown, the Eleventh Amendment would not bar
Congress from devising a congruent and proportional rem-
edy. The evidence to substantiate this charge must be far
more specific, however, than a simple recitation of a gen-
eral history of employment discrimination against women.
When the federal statute seeks to abrogate state sovereign
immunity, the Court should be more careful to insist on ad-
herence to the analytic requirements set forth in its own
precedents. Persisting overall effects of gender-based dis-
crimination at the workplace must not be ignored; but simply
noting the problem is not a substitute for evidence which
identifies some real discrimination the family leave rules are
designed to prevent.
Respondents fail to make the requisite showing. The
Act’s findings of purpose are devoid of any discussion of the
relevant evidence. See Lizzi v. Alexander, 255 F. 3d 128,
135 (CA4 2001) (“In making [its] finding of purpose, Congress
did not identify, as it is required to do, any pattern of gender
discrimination by the states with respect to the granting of
employment leave for the purpose of providing family or
medical care”); see also Chittister v. Department of Commu-
nity and Econ. Dev., 226 F. 3d 223, 228–229 (CA3 2000) (“No-
tably absent is any finding concerning the existence, much
less the prevalence, in public employment of personal sick
leave practices that amounted to intentional gender discrimi-
nation in violation of the Equal Protection Clause”).
As the Court seems to recognize, the evidence considered
by Congress concerned discriminatory practices of the pri-
vate sector, not those of state employers. Ante, at 730–731,
n. 3. The statistical information compiled by the Bureau of
Labor Statistics (BLS), which are the only factual findings
the Court cites, surveyed only private employers. Ante,
at 730. While the evidence of discrimination by private
entities may be relevant, it does not, by itself, justify the
abrogation of States’ sovereign immunity. Garrett, 531

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Kennedy, J., dissenting
U. S., at 368 (“Congress’ § 5 authority is appropriately exer-
cised only in response to state transgressions”).
The Court seeks to connect the evidence of private dis-
crimination to an alleged pattern of unconstitutional behav-
ior by States through inferences drawn from two sources.
The first is testimony by Meryl Frank, Director of the Infant
Care Leave Project, Yale Bush Center in Child Development
and Social Policy, who surveyed both private and public em-
ployers in all 50 States and found little variation between
the leave policies in the two sectors. Ante, at 730–731, n. 3
(citing The Parental and Medical Leave Act of 1986: Joint
Hearing before the Subcommittee on Labor-Management
Relations and the Subcommittee on Labor Standards of the
House Committee on Education and Labor, 99th Cong., 2d
Sess., 33 (1986) (hereinafter Joint Hearing)). The second is
a view expressed by the Washington Council of Lawyers
that even “ ‘[w]here child-care leave policies do exist, men,
both in the public and private sectors, receive notoriously
discriminatory treatment in their requests for such leave.’ ”
Ante, at 731 (quoting Joint Hearing 147) (emphasis added by
the Court).
Both statements were made during the hearings on the
proposed 1986 national leave legislation, and so preceded the
Act by seven years. The 1986 bill, which was not enacted,
differed in an important respect from the legislation Con-
gress eventually passed. That proposal sought to provide
parenting leave, not leave to care for another ill family mem-
ber. Compare H. R. 4300, 99th Cong., 2d Sess., §§ 102(3),
103(a) (1986), with 29 U. S. C. § 2612(a)(1)(C). See also L.
Gladstone, Congressional Research Service Issue Brief,
Family and Medical Leave Legislation, pp. 4–5, 10 (Oct. 26,
1995); Tr. of Oral Arg. 43 (statement of counsel for the United
States that “the first time that the family leave was intro-
duced and the first time the section (5) authority was invoked
was in H. R. 925,” which was proposed in 1987). The testi-
mony on which the Court relies concerned the discrimination

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748 NEVADA DEPT. OF HUMAN RESOURCES v. HIBBS
Kennedy, J., dissenting
with respect to the parenting leave. See Joint Hearing 31
(statement of Meryl Frank) (the Yale Bush study “evalu-
ate[d] the impact of the changing composition of the work-
place on families with infants”); id., at 147 (statement of the
Washington Council of Lawyers) (“[F]or the first time, child-
care responsibilities of both natural and adoptive mothers
and fathers will be legislatively protected”). Even if this
isolated testimony could support an inference that private
sector’s gender-based discrimination in the provision of par-
enting leave was parallel to the behavior by state actors in
1986, the evidence would not be probative of the States’ con-
duct some seven years later with respect to a statutory pro-
vision conferring a different benefit. The Court of Appeals
admitted as much: “We recognize that a weakness in this
evidence as applied to Hibbs’ case is that the BLS and Yale
Bush Center studies deal only with parental leave, not with
leave to care for a sick family member. They thus do not
document a widespread pattern of precisely the kind of dis-
crimination that § 2612(a)(1)(C) is intended to prevent.” 273
F. 3d 844, 859 (CA9 2001).
The Court’s reliance on evidence suggesting States pro-
vided men and women with the parenting leave of different
length, ante, at 731, and n. 5, suffers from the same flaw.
This evidence concerns the Act’s grant of parenting leave,
§§ 2612(a)(1)(A), (B), and is too attenuated to justify the fam-
ily leave provision. The Court of Appeals’ conclusion to the
contrary was based on an assertion that “if states discrimi-
nate along gender lines regarding the one kind of leave, then
they are likely to do so regarding the other.” 273 F. 3d, at
859. The charge that a State has engaged in a pattern of
unconstitutional discrimination against its citizens is a most
serious one. It must be supported by more than conjecture.
The Court maintains the evidence pertaining to the par-
enting leave is relevant because both parenting and family
leave provisions respond to “the same gender stereotype:
that women’s family duties trump those of the workplace.”

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Kennedy, J., dissenting
Ante, at 732, n. 5. This sets the contours of the inquiry at
too high a level of abstraction. The question is not whether
the family leave provision is a congruent and proportional
response to general gender-based stereotypes in employ-
ment which “ha[ve] historically produced discrimination in
the hiring and promotion of women,” ibid.; the question is
whether it is a proper remedy to an alleged pattern of uncon-
stitutional discrimination by States in the grant of family
leave. The evidence of gender-based stereotypes is too re-
mote to support the required showing.
The Court next argues that “even where state laws and
policies were not facially discriminatory, they were applied
in discriminatory ways.” Ante, at 732. This charge is
based on an allegation that many States did not guarantee
the right to family leave by statute, instead leaving the deci-
sion up to individual employers, who could subject employees
to “ ‘discretionary and possibly unequal treatment.’ ” Ibid.
(quoting H. R. Rep. No. 103–8, pt. 2, pp. 10–11 (1993)). The
study from which the Court derives this conclusion examined
“the parental leave policies of Federal executive branch
agencies,” H. R. Rep. No. 103–8, at 10, not those of the
States. The study explicitly stated that its conclusions con-
cerned federal employees: “ ‘[I]n the absence of a national
minimum standard for granting leave for parental purposes,
the authority to grant leave and to arrange the length of
that leave rests with individual supervisors, leaving Federal
employees open to discretionary and possibly unequal treat-
ment.’ ” Id., at 10–11. A history of discrimination on the
part of the Federal Government may, in some situations,
support an inference of similar conduct by the States, but the
Court does not explain why the inference is justified here.
Even if there were evidence that individual state employ-
ers, in the absence of clear statutory guidelines, discrimi-
nated in the administration of leave benefits, this circum-
stance alone would not support a finding of a state-sponsored
pattern of discrimination. The evidence could perhaps sup-

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750 NEVADA DEPT. OF HUMAN RESOURCES v. HIBBS
Kennedy, J., dissenting
port the charge of disparate impact, but not a charge that
States have engaged in a pattern of intentional discrimina-
tion prohibited by the Fourteenth Amendment. Garrett,
531 U. S., at 372–373 (citing Washington v. Davis, 426 U. S.
229, 239 (1976)).
The federal-state equivalence upon which the Court places
such emphasis is a deficient rationale at an even more fund-
amental level, however; for the States appear to have been
ahead of Congress in providing gender-neutral family leave
benefits. Thirty States, the District of Columbia, and
Puerto Rico had adopted some form of family-care leave in
the years preceding the Act’s adoption. The reports in both
Houses of Congress noted this fact. H. R. Rep. No. 103–8,
at 32–33; S. Rep. No. 103–3, pp. 20–21 (1993); see also Brief
for State of Alabama et al. as Amici Curiae 18–22. Con-
gressional hearings noted that the provision of family leave
was “an issue which has picked up tremendous momentum
in the States, with some 21 of them having some form of
family or medical leave on the books.” The Family and
Medical Leave Act of 1991: Hearing on H. R. 2 before the
Subcommittee on Labor-Management Relations of the House
Committee on Education and Labor, 102d Cong., 1st Sess.,
p. 4 (1991) (statement of Rep. Marge Roukema). Congress
relied on the experience of the States in designing the na-
tional leave policy to be cost effective and gender neutral.
S. Rep. No. 103–3, at 12–14; The Parental and Medical Leave
Act of 1987: Hearings on S. 249 before the Subcommittee on
Children, Family, Drugs and Alcoholism of the Senate Com-
mittee on Labor and Human Resources, 100th Cong., 1st
Sess., pt. 2, pp. 194–195, 533–534 (1987). Congress also ac-
knowledged that many States had implemented leave poli-
cies more generous than those envisioned by the Act. H. R.
Rep. No. 103–8, pt. 1, at 50; S. Rep. No. 103–3, at 38. At the
very least, the history of the Act suggests States were in the
process of solving any existing gender-based discrimination
in the provision of family leave.

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Kennedy, J., dissenting
The Court acknowledges that States have adopted family
leave programs prior to federal intervention, but argues
these policies suffered from serious imperfections. Ante,
at 733–734. Even if correct, this observation proves, at
most, that programs more generous and more effective than
those operated by the States were feasible. That the States
did not devise the optimal programs is not, however, evi-
dence that the States were perpetuating unconstitutional
discrimination. Given that the States assumed a pioneering
role in the creation of family leave schemes, it is not surpris-
ing these early efforts may have been imperfect. This is al-
together different, however, from purposeful discrimination.
The Court’s lengthy discussion of the allegedly deficient
state policies falls short of meeting this standard. A great
majority of these programs exhibit no constitutional defect
and, in fact, are authorized by this Court’s precedent. The
Court points out that seven States adopted leave provisions
applicable only to women. Ante, at 733. Yet it must ac-
knowledge that three of these schemes concerned solely
pregnancy disability leave. Ante, at 733, n. 6 (citing 3 Colo.
Code Regs. § 708–1, Rule 80.8 (2002); Iowa Code § 216.6(2)
(2000); N. H. Stat. Ann. § 354–A:7(VI)(b) (Michie Supp.
2000)). Our cases make clear that a State does not violate
the Equal Protection Clause by granting pregnancy dis-
ability leave to women without providing for a grant of par-
enting leave to men. Geduldig v. Aiello, 417 U. S. 484, 496–
497, n. 20 (1974); see also Tr. of Oral Arg. 49 (counsel for
the United States conceding that Geduldig would permit
this practice). The Court treats the pregnancy disabil-
ity scheme of the fourth State, Louisiana, as a disguised
gender-discriminatory provision of parenting leave because
the scheme would permit leave in excess of the period Con-
gress believed to be medically necessary for pregnancy
disability. Ante, at 733, n. 6. The Louisiana statute, how-
ever, granted leave only for “that period during which the
female employee is disabled on account of pregnancy, child-

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752 NEVADA DEPT. OF HUMAN RESOURCES v. HIBBS
Kennedy, J., dissenting
birth, or related medical conditions. ” La. Stat. Ann.
§ 23:1008(A)(2)(b) (West Supp. 1993) (repealed 1997). Prop-
erly administered, the scheme, despite its generous maxi-
mum, would not transform into a discriminatory “4-month
maternity leave for female employees only.” Ante, at 733,
n. 6.
The Court next observes that 12 States “provided their
employees no family leave, beyond an initial childbirth or
adoption.” Ante, at 733. Four of these States are those
which, as discussed above, offered pregnancy disability leave
only. See ante, at 733, n. 7 (citing 3 Colo. Code Regs.
§ 708–1, Rule 80.8 (2002); Iowa Code § 216.6(2) (2000); La.
Stat. Ann. § 23:1008(A)(2) (West Supp. 1993) (repealed 1997);
N. H. Stat. Ann. § 354–A:7(VI)(b) (Michie Supp. 2000)). Of
the remaining eight States, five offered parenting leave to
both men and women on an equal basis; a practice which no
one contends suffers from a constitutional infirmity. See
ante, at 733–734, n. 7 (citing Del. Code Ann., Tit. 29, § 5116
(1997); Ky. Rev. Stat. Ann. § 337.015 (Michie 2001); Mo. Rev.
Stat. § 105.271 (2000); N. Y. Lab. Law § 201–c (West 2002);
U. S. Dept. of Labor, Women’s Bureau, State Maternity/
Family Leave Law, p. 12 (June 1993) (discussing the policy
adopted by the Virginia Department of Personnel and Train-
ing)). The Court does not explain how the provision of so-
cial benefits either on a gender-neutral level (as with the par-
enting leave) or in a way permitted by this Court’s case law
(as with the pregnancy disability leave) offends the Constitu-
tion. Instead, the Court seems to suggest that a pattern of
unconstitutional conduct may be inferred solely because a
State, in providing its citizens with social benefits, does not
make these benefits as generous or extensive as Congress
would later deem appropriate.
The Court further chastises the States for having “pro-
vided no statutorily guaranteed right to family leave, offer-
ing instead only voluntary or discretionary leave programs.”
Ante, at 733–734; see also ante, at 734 (“[F]our States pro-

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Kennedy, J., dissenting
vided leave only through administrative regulations or per-
sonnel policies”). The Court does not argue the States in-
tended to enable employers to discriminate in the provision
of family leave; nor, as already noted, is there evidence state
employers discriminated in the administration of leave bene-
fits. See supra, at 749–750. Under the Court’s reasoning,
Congress seems justified in abrogating state immunity from
private suits whenever the State’s social benefits program is
not enshrined in the statutory code and provides employers
with discretion.
Stripped of the conduct which exhibits no constitutional
infirmity, the Court’s “exten[sive] and specifi[c] . . . record of
unconstitutional state conduct,” ante, at 735, n. 11, boils
down to the fact that three States, Massachusetts, Kansas,
and Tennessee, provided parenting leave only to their female
employees, and had no program for granting their employees
(male or female) family leave. See ante, at 733–734, nn. 6
and 7 (citing Mass. Gen. Laws, ch. 149, § 105D (West 1997);
Kan. Admin. Regs. 21–32–6(d) (2003); Tenn. Code Ann. § 4–
21–408(a) (1998)). As already explained, supra, at 748–749,
the evidence related to the parenting leave is simply too at-
tenuated to support a charge of unconstitutional discrimina-
tion in the provision of family leave. Nor, as the Court
seems to acknowledge, does the Constitution require States
to provide their employees with any family leave at all.
Ante, at 738. A State’s failure to devise a family leave pro-
gram is not, then, evidence of unconstitutional behavior.
Considered in its entirety, the evidence fails to document
a pattern of unconstitutional conduct sufficient to justify the
abrogation of States’ sovereign immunity. The few inci-
dents identified by the Court “fall far short of even suggest-
ing the pattern of unconstitutional discrimination on which
§ 5 legislation must be based.” Garrett, 531 U. S., at 370;
see also Kimel, 528 U. S., at 89–91; City of Boerne, 521 U. S.,
at 530–531. Juxtaposed to this evidence is the States’ rec-
ord of addressing gender-based discrimination in the provi-

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Kennedy, J., dissenting
sion of leave benefits on their own volition. See generally
Brief for State of Alabama et al. as Amici Curiae 5–14.
Our concern with gender discrimination, which is sub-
jected to heightened scrutiny, as opposed to age- or
disability-based distinctions, which are reviewed under ra-
tional standard, see Kimel, supra, at 83–84; Garrett, supra,
at 366–367, does not alter this conclusion. The application
of heightened scrutiny is designed to ensure gender-based
classifications are not based on the entrenched and pervasive
stereotypes which inhibit women’s progress in the work-
place. Ante, at 736. This consideration does not divest re-
spondents of their burden to show that “Congress identified
a history and pattern of unconstitutional employment dis-
crimination by the States.” Garrett, supra, at 368. The
Court seems to reaffirm this requirement. Ante, at 729
(“We now inquire whether Congress had evidence of a pat-
tern of constitutional violations on the part of the States
. . .”); see also ante, at 735 (“[T]he States’ record of unconsti-
tutional participation in, and fostering of, gender-based dis-
crimination in the administration of leave benefits is weighty
enough to justify the enactment of prophylactic § 5 legisla-
tion”). In my submission, however, the Court does not fol-
low it. Given the insufficiency of the evidence that States
discriminated in the provision of family leave, the unfortu-
nate fact that stereotypes about women continue to be a seri-
ous and pervasive social problem would not alone support
the charge that a State has engaged in a practice designed
to deny its citizens the equal protection of the laws. Gar-
rett, supra, at 369.
The paucity of evidence to support the case the Court tries
to make demonstrates that Congress was not responding
with a congruent and proportional remedy to a perceived
course of unconstitutional conduct. Instead, it enacted a
substantive entitlement program of its own. If Congress
had been concerned about different treatment of men and
women with respect to family leave, a congruent remedy

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Kennedy, J., dissenting
would have sought to ensure the benefits of any leave pro-
gram enacted by a State are available to men and women on
an equal basis. Instead, the Act imposes, across the board,
a requirement that States grant a minimum of 12 weeks of
leave per year. 29 U. S. C. § 2612(a)(1)(C). This require-
ment may represent Congress’ considered judgment as to
the optimal balance between the family obligations of work-
ers and the interests of employers, and the States may de-
cide to follow these guidelines in designing their own family
leave benefits. It does not follow, however, that if the
States choose to enact a different benefit scheme, they
should be deemed to engage in unconstitutional conduct and
forced to open their treasuries to private suits for damages.
Well before the federal enactment, Nevada not only pro-
vided its employees, on a gender-neutral basis, with an op-
tion of requesting up to one year of unpaid leave, Nev.
Admin. Code § 284.578(1) (1984), but also permitted, subject
to approval and other conditions, leaves of absence in excess
of one year, § 284.578(2). Nevada state employees were also
entitled to use up to 10 days of their accumulated paid sick
leave to care for an ill relative. § 284.558(1). Nevada, in
addition, had a program of special “catastrophic leave.”
State employees could donate their accrued sick leave to a
general fund to aid employees who needed additional leave
to care for a relative with a serious illness. Nev. Rev. Stat.
§ 284.362(1) (1995).
To be sure, the Nevada scheme did not track that devised
by the Act in all respects. The provision of unpaid leave
was discretionary and subject to a possible reporting re-
quirement. Nev. Admin. Code § 284.578(2)(3) (1984). A
congruent remedy to any discriminatory exercise of discre-
tion, however, is the requirement that the grant of leave be
administered on a gender-equal basis, not the displacement
of the State’s scheme by a federal one. The scheme enacted
by the Act does not respect the States’ autonomous power
to design their own social benefits regime.

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Kennedy, J., dissenting
Were more proof needed to show that this is an entitle-
ment program, not a remedial statute, it should suffice to
note that the Act does not even purport to bar discrimination
in some leave programs the States do enact and administer.
Under the Act, a State is allowed to provide women with,
say, 24 weeks of family leave per year but provide only 12
weeks of leave to men. As the counsel for the United States
conceded during the argument, a law of this kind might run
afoul of the Equal Protection Clause or Title VII, but it
would not constitute a violation of the Act. Tr. of Oral Arg.
49. The Act on its face is not drawn as a remedy to gender-
based discrimination in family leave.
It has been long acknowledged that federal legislation
which “deters or remedies constitutional violations can fall
within the sweep of Congress’ enforcement power even if in
the process it prohibits conduct which is not itself unconstitu-
tional.” City of Boerne, 521 U. S., at 518; see also ante, at
737 (in exercising its power under § 5 of the Fourteenth
Amendment, Congress “may prohibit ‘a somewhat broader
swath of conduct, including that which is not itself forbidden
by the Amendment’s text’ ” (quoting Kimel, 528 U. S., at 81)).
The Court has explained, however, that Congress may not
“enforce a constitutional right by changing what the right
is.” City of Boerne, supra, at 519. The dual requirement
that Congress identify a pervasive pattern of unconstitu-
tional state conduct and that its remedy be proportional and
congruent to the violation is designed to separate permissi-
ble exercises of congressional power from instances where
Congress seeks to enact a substantive entitlement under the
guise of its § 5 authority.
The Court’s precedents upholding the Voting Rights Act
of 1965 as a proper exercise of Congress’ remedial power are
instructive. In South Carolina v. Katzenbach, 383 U. S. 301
(1966), the Court concluded that the Voting Rights Act’s
prohibition on state literacy tests was an appropriate method
of enforcing the constitutional protection against racial dis-

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Kennedy, J., dissenting
crimination in voting. This measure was justified because
“Congress documented a marked pattern of unconstitutional
action by the States.” Garrett, 531 U. S., at 373 (citing
Katzenbach, supra, at 312, 313); see also City of Boerne,
supra, at 525 (“We noted evidence in the record reflecting
the subsisting and pervasive discriminatory—and therefore
unconstitutional—use of literacy tests” (citing Katzenbach,
supra, at 333–334)). Congress’ response was a “limited re-
medial scheme designed to guarantee meaningful enforce-
ment of the Fifteenth Amendment.” Garrett, supra, at 373.
This scheme was both congruent, because it “aimed at areas
where voting discrimination has been most flagrant,” Katz-
enbach, 383 U. S., at 315, and proportional, because it was
necessary to “banish the blight of racial discrimination in
voting, which has infected the electoral process in parts of
our country for nearly a century,” id., at 308. The Court
acknowledged Congress’ power to devise “strong remedial
and preventive measures” to safeguard voting rights on sub-
sequent occasions, but always explained that these measures
were legitimate because they were responding to a pattern
of “the widespread and persisting deprivation of constitu-
tional rights resulting from this country’s history of racial
discrimination.” City of Boerne, supra, at 526–527 (citing
Oregon v. Mitchell, 400 U. S. 112 (1970); City of Rome v.
United States, 446 U. S. 156 (1980); Katzenbach v. Morgan,
384 U. S. 641 (1966)).
This principle of our § 5 jurisprudence is well illustrated
not only by the Court’s opinions in these cases but also by
the late Justice Harlan’s dissent in Katzenbach v. Morgan.
There, Justice Harlan contrasted his vote to invalidate a
federal ban on New York state literacy tests from his ear-
lier decision, in South Carolina v. Katzenbach, to uphold
stronger remedial measures against the State of South Caro-
lina, such as suspension of literacy tests, imposition of pre-
clearance requirements for any changes in state voting laws,
and appointment of federal voting examiners. Katzenbach

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Kennedy, J., dissenting
v. Morgan, supra, at 659, 667; see also South Carolina v.
Katzenbach, supra, at 315–323. Justice Harlan explained
that in the case of South Carolina there was “ ‘voluminous
legislative history’ as well as judicial precedents supporting
the basic congressional findings that the clear commands of
the Fifteenth Amendment had been infringed by various
state subterfuges. . . . Given the existence of the evil, we
held the remedial steps taken by the legislature under the
Enforcement Clause of the Fifteenth Amendment to be a
justifiable exercise of congressional initiative.” 384 U. S., at
667 (quoting South Carolina v. Katzenbach, supra, at 309,
329–330). By contrast, the New York case, in his view,
lacked a showing that “there has in fact been an infringe-
ment of that constitutional command, that is, whether a par-
ticular state practice . . . offend[ed] the command of the
Equal Protection Clause of the Fourteenth Amendment.”
384 U. S., at 667. In the absence of evidence that a State
has engaged in unconstitutional conduct, Justice Harlan
would have concluded that the literacy test ban Congress
sought to impose was not an “appropriate remedial measur[e]
to redress and prevent the wrongs,” but an impermissible
attempt “to define the substantive scope of the Amend-
ment.” Id., at 666, 668.
For the same reasons, the abrogation of state sovereign
immunity pursuant to Title VII was a legitimate congres-
sional response to a pattern of gender-based discrimination
in employment. Fitzpatrick v. Bitzer, 427 U. S. 445 (1976).
The family leave benefit conferred by the Act is, by contrast,
a substantive benefit Congress chose to confer upon state
employees. See City of Boerne, supra, at 520 (“There must
be a congruence and proportionality between the injury to
be prevented or remedied and the means adopted to that
end. Lacking such a connection, legislation may become
substantive in operation and effect”). The plain truth is
Congress did not “ac[t] to accomplish the legitimate end
of enforcing judicially-recognized Fourteenth Amendment

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Kennedy, J., dissenting
rights, [but] instead pursued an object outside the scope of
Section Five by imposing new, non-remedial legal obligations
on the states.” Beck, The Heart of Federalism: Pretext Re-
view of Means-End Relationships, 36 U. C. D. L. Rev. 407,
440 (2003).
It bears emphasis that, even were the Court to bar uncon-
sented federal suits by private individuals for money dam-
ages from a State, individuals whose rights under the Act
were violated would not be without recourse. The Act is
likely a valid exercise of Congress’ power under the Com-
merce Clause, Art. I, § 8, cl. 3, and so the standards it pre-
scribes will be binding upon the States. The United States
may enforce these standards in actions for money damages;
and private individuals may bring actions against state offi-
cials for injunctive relief under Ex parte Young, 209 U. S.
123 (1908). What is at issue is only whether the States can
be subjected, without consent, to suits brought by private
persons seeking to collect moneys from the state treasury.
Their immunity cannot be abrogated without documentation
of a pattern of unconstitutional acts by the States, and only
then by a congruent and proportional remedy. There has
been a complete failure by respondents to carry their burden
to establish each of these necessary propositions. I would
hold that the Act is not a valid abrogation of state sovereign
immunity and dissent with respect from the Court’s conclu-
sion to the contrary.