COLEMAN v. MARYLAND COURT OF APPEALS

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

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No. 10–1016

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Daniel Coleman, PETITIONER v. Court of Appeals of Maryland et al.

on writ of certiorari to the united states court of appeals for the fourth circuit

[March 20, 2012]

Justice Kennedy announced the judgment of the Court and delivered an opinion, in which The Chief Justice, Justice Thomas, and Justice Alito joined.

The question in this case is whether a state employee is allowed to recover damages from the state entity that employs him by invoking one of the provisions of a federal statute that, in express terms, seeks to abrogate the States’ immunity from suits for damages. The statute in question is the Family and Medical Leave Act of 1993, 107Stat. 6, 29 U. S. C. §2601 et seq. The provision at issue requires employers, including state employers, to grant unpaid leave for self care for a serious medical condition, provided other statutory requisites are met, particularly requirements that the total amount of annual leave taken under all the Act’s provisions does not exceed a stated maximum. §2612(a)(1)(d). In agreement with every Court of Appeals to have addressed this question, this Court now holds that suits against States under this provision are barred by the States’ immunity as sovereigns in our federal system. See 626 F. 3d 187 (CA4 2010) (case below); Nelson v. University of Tex., 535 F. 3d 318 (CA5 2008); Miles v. Bellfontaine Habilitation Center, 481 F. 3d 1106 (CA8 2007) (per curiam); Toeller v. Wisconsin Dept. of Corrections, 461 F. 3d 871 (CA7 2006); Touvell v. Ohio Dept. of Mental Retardation & Developmental Disabilities, 422 F. 3d 392 (CA6 2005); Brockman v. Wyoming Dept. of Family Servs., 342 F. 3d 1159 (CA10 2003); Laro v. New Hampshire, 259 F. 3d 1 (CA1 2001).

I A

The Family and Medical Leave Act of 1993 (FMLA or Act) entitles eligible employees to take up to 12 work weeks of unpaid leave per year. An employee may take leave under the FMLA for: (A) “the birth of a son or daughter . . . in order to care for such son or daughter,” (B) the adoption or foster-care placement of a child with the employee, (C) the care of a “spouse . . . son, daughter, or parent” with “a serious health condition,” and (D) the employee’s own serious health condition when the condition interferes with the employee’s ability to perform at work. 29 U. S. C. §2612(a)(1). The Act creates a private right of action to seek both equitable relief and money damages “against any employer (including a public agency) in any Federal or State court of competent jurisdiction.” §2617(a)(2). As noted, subparagraph (D) is at issue here.

This Court considered subparagraph (C) in Nevada Dept. of Human Resources v. Hibbs, 538 U. S. 721 (2003) . Subparagraph (C), like (A) and (B), grants leave for reasons related to family care, and those three provisions are referred to here as the family-care provisions. Hibbs held that Congress could subject the States to suit for violations of subparagraph (C), §2612(a)(1)(C). That holding rested on evidence that States had family-leave policies that differentiated on the basis of sex and that States administered even neutral family-leave policies in ways that discriminated on the basis of sex. See id., at 730–732. Subparagraph (D), the self-care provision, was not at issue in Hibbs.

B

Petitioner Daniel Coleman was employed by the Court of Appeals of the State of Maryland. When Coleman requested sick leave, he was informed he would be terminated if he did not resign. Coleman then sued the state court in the United States District Court for the District of Maryland, alleging, inter alia, that his employer violated the FMLA by failing to provide him with self-care leave.

The District Court dismissed the suit on the basis that the Maryland Court of Appeals, as an entity of a sovereign State, was immune from the suit for damages. The parties do not dispute the District Court’s ruling that the Maryland Court of Appeals is an entity or instrumentality of the State for purposes of sovereign immunity. The District Court concluded the FMLA’s self-care provision did not validly abrogate the State’s immunity from suit. App. to Pet. for Cert. 15–20. The Court of Appeals for the Fourth Circuit affirmed, reasoning that, unlike the family-care provision at issue in Hibbs, the self-care provision was not directed at an identified pattern of gender-based discrimination and was not congruent and proportional to any pattern of sex-based discrimination on the part of States. 626 F. 3d 187. Certiorari was granted. 564 U. S. ___ (2011).

II A

A foundational premise of the federal system is that States, as sovereigns, are immune from suits for damages, save as they elect to waive that defense. See Kimel v. Florida Bd. of Regents, 528 U. S. 62 –73 (2000); Alden v. Maine, 527 U. S. 706 (1999) . As an exception to this principle, Congress may abrogate the States’ immunity from suit pursuant to its powers under §5 of the Fourteenth Amendment. See, e.g., Fitzpatrick v. Bitzer, 427 U. S. 445 (1976) .

Congress must “mak[e] its intention to abrogate unmistakably clear in the language of the statute.” Hibbs, 538 U. S., at 726. On this point the Act does express the clear purpose to abrogate the States’ immunity. Ibid. (“The clarity of Congress’ intent” to abrogate the States’ immunity from suits for damages under the FMLA “is not fairly debatable”). Congress subjected any “public agency” to suit under the FMLA, 29 U. S. C. §2617(a)(2), and a “public agency” is defined 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).

The question then becomes whether the self-care provision and its attempt to abrogate the States’ immunity are a valid exercise of congressional power under §5 of the Fourteenth Amendment. Section 5 grants Congress the power “to enforce” the substantive guarantees of §1 of the Amendment by “appropriate legislation.” The power to enforce “ ‘includes the authority both to remedy and to deter violation[s] of rights guaranteed’ ” by §1. See Board of Trustees of Univ. of Ala. v. Garrett, 531 U. S. 356, 365 (2001) (quoting Kimel, supra, at 81). To ensure Congress’ enforcement powers under §5 remain enforcement powers, as envisioned by the ratifiers of the Amendment, rather than powers to redefine the substantive scope of §1, Congress “must tailor” legislation enacted under §5 “ ‘to remedy or prevent’ ” “conduct transgressing the Fourteenth Amendment’s substantive provisions.” Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U. S. 627, 639 (1999) .

Whether a congressional Act passed under §5 can impose monetary liability upon States requires an assessment of both the “ ‘evil’ or ‘wrong’ that Congress intended to remedy,” ibid., and the means Congress adopted to address that evil, see City of Boerne v. Flores, 521 U. S. 507, 520 (1997) . Legislation enacted under §5 must be targeted at “conduct transgressing the Fourteenth Amendment’s substantive provisions.” Florida Prepaid, supra, at 639; see Kimel, supra, at 88; City of Boerne, 521 U. S., at 525. And “[t]here must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.” Id., at 520.

Under this analysis Hibbs permitted employees to recover damages from States for violations of subparagraph (C). In enacting the FMLA, Congress relied upon evidence of a well-documented pattern of sex-based discrimination in family-leave policies. States had facially discriminatory leave policies that granted longer periods of leave to women than to men. 538 U. S., at 730–731. States also administered facially neutral family-leave policies in gender-biased ways. Id., at 732. These practices reflected what Congress found to be a “pervasive sex-role stereotype that caring for family members is women’s work,” id., at 731, a stereotype to which even this Court had succumbed in earlier times, id., at 729. Faced with “the States’ record of unconstitutional participation in, and fostering of, gender-based discrimination in the administration of leave benefits,” Hibbs concluded that requiring state employers to give all employees the opportunity to take family-care leave was “narrowly targeted at the faultline between work and family—precisely where sex-based overgeneralization has been and remains strongest.” Id., at 735, 738.

B

The same cannot be said for requiring the States to give all employees the opportunity to take self-care leave. Petitioner advances three arguments for allowing employees to recover damages from States that violate the FMLA’s self-care provision: The self-care provision standing alone addresses sex discrimination and sex stereotyping; the provision is a necessary adjunct to the family-care provision sustained in Hibbs; and the provision eases the burden on single parents. But what the family-care provisions have to support them, the self-care provision lacks, namely evidence of a pattern of state constitutional violations accompanied by a remedy drawn in narrow terms to address or prevent those violations.

1

Standing alone, the self-care provision is not a valid abrogation of the States’ immunity from suit. When the FMLA was enacted, “ninety-five percent of full-time stateand local-government employees were covered by paid sick leave plans and ninety-six percent of such employees likewise enjoyed short-term disability protection.” Brief for States of Texas et al. as Amici Curiae 13–14 (hereinafter Texas Brief) (citing Bureau of Labor Statistics, U. S. Dept. of Labor, Employee Benefits in State and Local Governments 17–26 (1994) (hereinafter BLS Rept.)). The evidence did not suggest States had facially discriminatory self-care leave policies or that they administered neutral self-care leave policies in a discriminatory way. And there is scant evidence in the legislative history of a purported stereotype harbored by employers that women take self-care leave more often than men. Congress considered evidence that “men and women are out on medical leave approximately equally.” H. R. Rep. No. 101–28, pt. 1, p. 15 (1989) (hereinafter H. R. Rep.). Nothing in the record shows employers formulated self-care leave policies based on a contrary view.

Without widespread evidence of sex discrimination or sex stereotyping in the administration of sick leave, it is apparent that the congressional purpose in enacting the self-care provision is unrelated to these supposed wrongs. The legislative history of the self-care provision reveals a concern for the economic burdens on the employee and the employee’s family resulting from illness-related job loss and a concern for discrimination on the basis of illness, not sex. See, e.g., S. Rep. No. 103–3, pp. 11–12 (1993); H. R. Rep., at 23. In the findings pertinent to the self-care provision, the statute makes no reference to any distinction on the basis of sex. See 29 U. S. C. §2601(a)(4) (“[T]here is inadequate job security for employees who have serious health conditions that prevent them from working for temporary periods”). By contrast, with regard to family care Congress invoked concerns related to gender. See §2601(a)(5) (“[D]ue to the nature of the roles of men and women in our society, the primary responsibility for family caretaking often falls on women, and such responsibility affects the working lives of women more than it affects the working lives of men”).

It is true the self-care provision offers some women a benefit by allowing them to take leave for pregnancy-related illnesses; but as a remedy, the provision is not congruent and proportional to any identified constitutional violations. At the time of the FMLA’s enactment, “ninety-five percent” of state employees had paid sick-leave plans at work, and “ninety-six percent” had short-term disability protection. Texas Brief 13–14 (citing BLS Rept. 17–26). State employees presumably could take leave for pregnancy-related illnesses under these policies, and Congress did not document any pattern of States excluding pregnancy-related illnesses from sick-leave or disability-leave policies. “Congress . . . said nothing about the existence or adequacy of state remedies.” Florida Prepaid, 527 U. S., at 644. It follows that abrogating the States’ immunity from suits for damages for failure to give self-care leave is not a congruent and proportional remedy if the existing state leave policies would have sufficed.

2

As an alternative justification for the self-care provision, it has been suggested that the provision is a necessary adjunct to the family-care provisions. Petitioner argues that employers may assume women are more likely to take family-care leave than men and that the FMLA therefore offers up to 12 weeks of leave for family care and self care combined. According to petitioner, when the self-care provision is coupled with the family-care provisions, the self-care provision could reduce the difference in the expected number of weeks of FMLA leave that different employees take for different reasons.

The fact that self-care leave could have this effect does not mean that it would. If, for example, women are expected to take 20 days of family-care leave per year and men to take 10, and women and men are each expected to take 5 days of self-care leave per year, the difference in the expected number of days of leave and cost to the employer remains the same regardless of the availability of self-care leave. Congress made no findings, and received no specific testimony, to suggest the availability of self-care leave equalizes the expected amount of FMLA leave men and women will take. Even if women take family-care leave more often than men, men do not take self-care leave more often than women; and there is little evidence that employers assume they do. See H. R. Rep., at 15. Petitioner suggests that some women will be expected to take all 12 weeks of leave under the FMLA for family-care purposes, and therefore that any amount of self-care leave taken by men will diminish the difference in the amount of FMLA leave taken by men and women. But there is little evidence to support petitioner’s assumption about the magnitude of women’s expected FMLA leave for family-care purposes. And men are only expected to take five days of sick leave per year, see ibid., so the self-care provision diminishes the difference in expected leave time by a maximum of five days. And that is only to the extent women use all their available FMLA leave for family-care reasons. Petitioner’s overly complicated argument about how the self-care provision works in tandem with the family-care provisions is unconvincing and in the end does not comply with the clear requirements of City of Boerne.

In addition petitioner’s first defense of the self-care provision contradicts his second defense of the provision. In the first defense, the Court is told employers assume women take more self-care leave than men. See Tr. of Oral Arg. 10–12. In the second defense, the Court is told the self-care provision provides an incentive to hire women that will counteract the incentives created by the family-care provisions because employers assume women take more family-care leave than men. But if the first defense is correct, the second defense is wrong. In other words, if employers assume women take self-care leave more often than men (the first defense), a self-care provision will not provide an incentive to hire women. To the contrary, the self-care provision would provide an incentive to discriminate against women.

There is “little support in the record for the concerns that supposedly animated” the self-care provision. Florida Prepaid, supra, at 639. Only supposition and conjecture support the contention that the self-care provision is necessary to make the family-care provisions effective. The evidence documented in support of the self-care provision is, to a large degree, unrelated to sex discrimination, or to the administration of the family-care provisions. See supra, at 7. Congress made no findings and did not cite specific or detailed evidence to show how the self-care provision is necessary to the family-care provisions or how it reduces an employer’s incentives to discriminate against women. And “Congress . . . said nothing about the existence or adequacy of state” sick-leave policies. Florida Prepaid, supra, at 644; see Garrett, 531 U. S., at 373. Under this Court’s precedents, more is required to subject unconsenting States to suits for damages, particularly where, as here, it is for violations of a provision (the self-care provision) that is a supposedly preventive step in aid of already preventive provisions (the family-care provisions). See Florida Prepaid, 527 U. S., at 642 (“[T]he legislative record still provides little support for the proposition that Congress sought to remedy a Fourteenth Amendment violation in enacting the Patent Remedy Act”); Kimel, 528 U. S., at 88 (“One means by which we have made such a determination . . . is by examining the legislative record containing the reasons for Congress’ action”).

The “few fleeting references” to how self-care leave is inseparable from family-care leave fall short of what is required for a valid abrogation of States’ immunity from suits for damages. Florida Prepaid, supra, at 644. These “isolated sentences clipped from floor debates” and testimony, Kimel, supra, at 89, are stated as conclusions, unsupported by evidence or findings about how the self-care provision interrelates to the family-care provisions to counteract employers’ incentives to discriminate against women. Congress must rely on more than abstract generalities to subject the States to suits for damages. Otherwise, Congress could choose to combat the purported effects of the family-care provisions by allowing employees to sue States that do not permit employees to take vacation time under the FMLA. There is nothing in particular about self-care leave, as opposed to leave for any personal reason, that connects it to gender discrimination. And when the issue, as here, is whether subparagraph (D) can abrogate a State’s immunity from damages, there is no sufficient nexus, or indeed any demonstrated nexus, between self-care leave and gender discrimination by state employers. Documented discrimination against women in the general workplace is a persistent, unfortunate reality, and, we must assume, a still prevalent wrong. An explicit purpose of the Congress in adopting the FMLA was to improve workplace conditions for women. See 29 U. S. C. §§2601(b)(4), (5). But States may not be subject to suits for damages based on violations of a comprehensive statute unless Congress has identified a specific pattern of constitutional violations by state employers. See City of Boerne, 521 U. S., at 532.

3

The petitioner’s last defense of the self-care provision is that the provision helps single parents retain their jobs when they become ill. This, however, does not explain how the provision remedies or prevents constitutional violations. The fact that most single parents happen to be women, see, e.g., S. Rep. No. 103–3, at 7, demonstrates, at most, that the self-care provision was directed at remedying employers’ neutral leave restrictions which have a disparate effect on women. “Although disparate impact may be relevant evidence of . . . discrimination . . . such evidence alone is insufficient [to prove a constitutional violation] even where the Fourteenth Amendment subjects state action to strict scrutiny.” Garrett, supra, at 372–373; see Tuan Anh Nguyen v. INS, 533 U. S. 53 –83 (2001) (O’Connor, J., dissenting); Washington v. Davis, 426 U. S. 229, 239 (1976) . To the extent, then, that the self-care provision addresses neutral leave policies with a disparate impact on women, it is not directed at a pattern of constitutional violations. Because, moreover, it is “unlikely that many of the [neutral leave policies] . . . affected by” the self-care provision are unconstitutional, “the scope of the [self-care provision is] out of proportion to its supposed remedial or preventive objectives.” Kimel, supra, at 82; see City of Boerne, supra, at 519.

Of course, a State need not assert its Eleventh Amendment immunity from suits for damages. See, e.g., Sossamon v. Texas, 563 U. S. ___, ___ (2011) (slip op., at 5) (“A State . . . may choose to waive its immunity in federal court at its pleasure”). Discrimination against women is contrary to the public policy of the State of Maryland, see, e.g., Maryland’s Fair Employment Practices Act, Md. State Govt. Code Ann. §20–606 (Lexis 2009), and the State has conceded that the Act is good social policy, see Tr. of Oral Arg. 35. If the State agrees with petitioner that damages liability for violations of the self-care provision is necessary to combat discrimination against women, the State may waive its immunity or create a parallel state law cause of action.

*  *  *

As a consequence of our constitutional design, money damages are the exception when sovereigns are defendants. See, e.g., Pennhurst State School and Hospital v. Halderman, 451 U. S. 1, 29 (1981) . Subjecting States to suits for damages pursuant to §5 requires more than a theory for why abrogating the States’ immunity aids in, or advances, a stated congressional purpose. To abrogate the States’ immunity from suits for damages under §5, Congress must identify a pattern of constitutional violations and tailor a remedy congruent and proportional to the documented violations. It failed to do so when it allowed employees to sue States for violations of the FMLA’s self-care provision. The judgment of the Court of Appeals is affirmed.

It is so ordered.

SUPREME COURT OF THE UNITED STATES

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No. 10–1016

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Daniel Coleman, PETITIONER v. Court of Appeals of Maryland et al.

on writ of certiorari to the united states court of appeals for the fourth circuit

[March 20, 2012]

Justice Ginsburg, with whom Justice Breyer joins, and with whom Justice Sotomayor and Justice Kagan join as to all but footnote 1, dissenting.

Section 1 of the Fourteenth Amendment provides: “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” Section 5 grants Congress the “power to enforce, by appropriate legislation, the provisions of this article.” Congress’ §5 enforcement power includes the authority to remedy and deter violations of §1’s substantive guarantees by prohibiting conduct “not itself forbidden by the Amendment’s text.” Kimel v. Florida Bd. of Regents, 528 U. S. 62, 81 (2000) . “In other words, Congress may enact so-called prophylactic legislation that proscribes facially constitutional conduct, in order to prevent and deter unconstitutional conduct.” Nevada Dept. of Human Resources v. Hibbs, 538 U. S. 721 –728 (2003).

The Family and Medical Leave Act of 1993 (FMLA or Act) entitles eligible employees to 12 weeks of job-secured leave during any 12-month period: (A) to care for a newborn son or daughter; (B) to care for a newly adopted son or daughter; (C) to care for a spouse, child, or parent with a serious health condition; or (D) because the employee has a serious health condition that makes her unable to perform the functions of her position. 29 U. S. C. §2612(a)(1).

Even accepting this Court’s view of the scope of Congress’ power under §5 of the Fourteenth Amendment, I would hold that the self-care provision, §2612(a)(1)(D), validly enforces the right to be free from gender discrimination in the workplace. 1

I

Section 5 legislation “must be targeted at conduct transgressing the Fourteenth Amendment’s substantive provisions,” ante, at 5 (internal quotation marks omitted), “[a]nd ‘[t]here must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.’ ” Ibid. (quoting City of Boerne v. Flores, 521 U. S. 507, 520 (1997) ). The first step of the now-familiar Boerne inquiry calls for identification of the constitutional right Congress sought to enforce. See, e.g., Tennessee v. Lane, 541 U. S. 509, 522 (2004) . The FMLA’s self-care provision, Maryland asserts, trains not on the right to be free from gender discrimination, but on an “equal protection right to be free from irrational state employment discrimination based on a medical condition.” Brief for Respondents 14. The plurality agrees, concluding that the self-care provision reveals “a concern for discrimination on the basis of illness, not sex.” Ante, at 7. In so declaring, the plurality undervalues the language, purpose, and history of the FMLA, and the self-care provision’s important role in the statutory scheme. As well, the plurality underplays the main theme of our decision in Hibbs: “The FMLA aims to protect the right to be free from gender-based discrimination in the workplace.” 538 U. S., at 728.

I begin with the text of the statute, which repeatedly emphasizes gender discrimination. One of the FMLA’s stated purposes is to “entitle employees to take reasonable leave,” 29 U. S. C. §2601(b)(2), “in a manner that, consistent with the Equal Protection Clause of the Fourteenth Amendment, minimizes the potential for employment discrimination on the basis of sex by ensuring generally that leave is available for eligible medical reasons (including maternity-related disability) and for compelling family reasons, on a gender-neutral basis.” §2601(b)(4). Another identified aim is “to promote the goal of equal employment opportunity for women and men, pursuant to [the Equal Protection Clause].” §2601(b)(5). “[E]mployment standards that apply to one gender only,” Congress expressly found, “have serious potential for encouraging employers to discriminate against employees and applicants for employment who are of that gender.” §2601(a)(6).

The FMLA’s purpose and legislative history reinforce the conclusion that the FMLA, in its entirety, is directed at sex discrimination. Indeed, the FMLA was originally envisioned as a way to guarantee—without singling out women or pregnancy—that pregnant women would not lose their jobs when they gave birth. The self-care provision achieves that aim.

A brief history is in order. In his 1982 congressional campaign, then-candidate Howard Berman pledged to introduce legislation similar to the California law challenged in California Fed. Sav. & Loan Assn. v. Guerra, 479 U. S. 272 (1987) . S. Wisensale, Family Leave Policy: The Political Economy of Work and Family in America 134 (2001) (hereinafter Wisensale). California’s law, enacted in 1978, made it unlawful for an employer to refuse to grant female employees disabled by pregnancy or childbirth up to four months’ unpaid, job-protected leave. See 1978 Cal. Stats. ch. 1321, §1, now codified at Cal. Govt. Code Ann. §12945(a)(1) (West Supp. 2012).

The California law sharply divided women’s rights advocates. “Equal-treatment” feminists asserted it violated the Pregnancy Discrimination Act’s (PDA) commitment to treating pregnancy the same as other disabilities. 2 It did so by requiring leave only for disability caused by pregnancy and childbirth, thereby treating pregnancy as sui generis. See Brief for American Civil Liberties Union et al. as Amici Curiae in California Fed., O. T. 1985, No. 85–494, pp. 5–10. “Equal-opportunity” feminists disagreed, urging that the California law was consistent with the PDA because it remedied the discriminatory burden that inadequate leave policies placed on a woman’s right to procreate. See Brief for Coalition for Reproductive Equality in the Workplace et al. as Amici Curiae in id., at 2–6. See also Williams, Equality’s Riddle: Pregnancy and the Equal Treatment/Special Treatment Debate, 13 N. Y. U. Rev. L. & Soc. Change 325, 326–328 (1984–1985) (hereinafter Williams) (discussing disagreement).

While California Fed. moved through the lower federal courts, equal-treatment feminists began work on a gender-neutral leave model, which eventually became the FMLA. See Ross, Legal Aspects of Parental Leave, in Parental Leave and Child Care 97 (J. Hyde & M. Essex eds. 1991) (hereinafter Ross). Then-Congressman Berman met with the Women’s Legal Defense Fund’s Donna Lenhoff, a drafter of the first FMLA bill. Id., at 114–115, n. 27; Wisensale 136. 3 They agreed that any national bill would focus not only on pregnancy, but on equal treatment for all workers. Ross 114–115, n. 27. See also Kazmier v. Widmann, 225 F. 3d 519, 547 (CA5 2000) (Dennis, J., dissenting) (“Perceiving that enacting the PDA had not achieved the intended result of preventing discrimination against either women or men in the granting of leave time in that the States felt it necessary to affirmatively grant pregnancy leave to women and not men, in 1985 Congress began considering the issue of family and medical leave.”).

Though this Court, in California Fed., eventually upheld California’s pregnancy-only leave policy as not preempted by the PDA, equal-treatment feminists continued to believe that viewing pregnancy as sui generis perpetuated widespread discrimination against women. 4 They therefore maintained their commitment to gender-neutral leave. See Joint Hearing on H. R. 925 before the Subcommittee on Civil Service and the Subcommittee on Compensation and Employee Benefits of the House Committee on Post Office and Civil Service, 100th Cong., 1st Sess., 36 (1987) (hereinafter 1987 House Hearing) (statement of Prof. Eleanor Holmes Norton, Georgetown University Law Center) (“[If California Fed.] becomes the model, employers will provide something for women affected by pregnancy that they are not required to provide for other employees. This gives fodder to those who seek to discriminate against women in employment. . . . In the [California Fed.] case, I would have preferred the interpretation urged by the [equal-treatment feminists].”).

Congress agreed. See infra, at 14–15. Adhering to equal-treatment feminists’ aim, the self-care provision, 29 U. S. C. §2612(a)(1)(D), prescribes comprehensive leave for women disabled during pregnancy or while recuperating from childbirth—without singling out pregnancy or childbirth. See S. Rep. No. 101–77, p. 32 (1989) (A “significant benefit of the temporary medical leave provided by this legislation is the form of protection it offers women workers who bear children. Because the bill treats all employees who are temporarily unable to work due to serious health conditions in the same fashion, it does not create the risk of discrimination against pregnant women posed by legislation which provides job protection only for pregnancy-related disability. Legislation solely protecting pregnant women gives employers an economic incentive to discriminate against women in hiring policies; legislation helping all workers equally does not have this effect.”). In view of this history, it is impossible to conclude that “nothing in particular about self-care leave . . . connects it to gender discrimination.” Ante, at 10.

II A

Boerne next asks “whether Congress had evidence of a pattern of constitutional violations on the part of the States.” Hibbs, 538 U. S., at 729. See also Boerne, 521 U. S., at 530–532. Beyond question, Congress had evidence of a well-documented pattern of workplace discrimination against pregnant women. Section 2612(a)(1)(D) can therefore “be understood as responsive to, or designed to prevent, unconstitutional behavior.” Id., at 532.

Although the PDA proscribed blatant discrimination on the basis of pregnancy, see 42 U. S. C. §§2000e(k), 2000e–2, supra, at 4, n. 2, the Act is fairly described as a necessary, but not a sufficient measure. FMLA hearings conducted between 1986 and 1993 included illustrative testimony from women fired after becoming pregnant or giving birth. For example, Beverly Wilkenson was granted seven weeks of leave upon the birth of her child. On the eve of her return to work, a superior informed her that her job had been eliminated. He stated: “Beverly, the best thing for you to do is stay home and take care of your baby and collect your unemployment.” Hearing on H. R. 770 before the Subcommittee on Labor-Management Relations of the House Committee on Education and Labor, 101st Cong., 1st Sess., 12 (1989) (hereinafter 1989 House Hearing) (statement of Beverly Wilkenson). See also S. Rep. No. 102–68, p. 27 (1991) (hereinafter 1991 Senate Report) (describing Ms. Wilkenson’s testimony). Similarly, Linda Pillsbury was notified that she no longer had a job three weeks after her daughter was born. 5 Three secretaries at the same workplace were also forced out of their jobs when they returned to work within weeks of giving birth. See Hearings on S. 249 before the Subcommittee on Children, Family, Drugs and Alcoholism of the Senate Committee on Labor and Human Resources, 100th Cong., 1st Sess., pt. 2, pp. 16, 23 (1987) (hereinafter 1987 Senate Hearings) (statement of Linda Pillsbury).

These women’s experiences, Congress learned, were hardly isolated incidents. A spokeswoman for the Mayor’s Commission on Women’s Affairs in Chicago testified: “The lack of uniform parental and medical leave policies in the workplace has created an environment where discrimination is rampant. Very often we are contacted by women workers who are at risk of losing their jobs or have lost them because they are pregnant, [or have] given birth.” Id., at 170 (statement of Peggy Montes). See also Joint Hearing on The Parental and Medical Leave Act of 1986 before the Subcommittee on Labor-Management Relations and the Subcommittee on Labor Standards of the House Committee on Education and Labor, 99th Cong., 2d Sess., 110, n. 18 (1986) (hereinafter 1986 House Hearing) (statement of Women’s Legal Defense Fund) (“[W]omen who are temporarily unable to work due to pregnancy, child-birth, and related medical conditions such as morning sickness, threatened miscarriage, or complications arising from childbirth, often lose their jobs because of the inadequacy of their employers’ leave policies.”); 1991 Senate Report 28 (recording that an Atlanta-based job counseling hotline received approximately 100 calls each year from women who were fired, harassed, or forced out of their jobs due to pregnancy or maternity-disability leave); 139 Cong. Rec. 1826 (1993) (remarks of Sen. Edward Kennedy) (“[W]omen who are pregnant are discriminated against as a general rule in our society and have difficulty retaining their jobs.”). As summarized by the American Bar Association:

“Historically, denial or curtailment of women’s employment opportunities has been traceable directly to the pervasive presumption that women are mothers first, and workers second. This prevailing ideology about women’s roles has in turn justified discrimination against women when they are mothers or mothersto-be.” 1989 House Hearing 248 (American Bar Association Background Report). See also Hibbs, 538 U. S., at 736 (quoting same language).

“Many pregnant women have been fired when their employer refused to provide an adequate leave of absence,” Congress had ample cause to conclude. See H. R. Rep. No. 99–699, pt. 2, p. 22 (1986). Pregnancy, Congress also found, has a marked impact on women’s earnings. One year after childbirth, mothers’ earnings fell to $1.40 per hour less than those of women who had not given birth. See 1991 Senate Report 28. See also 1989 House Hearing 356–357 (Report of 9to5, National Association of Working Women (citing same study)).

Congress heard evidence tying this pattern of discrimination to the States. A 50-state survey by the Yale Bush Center Infant Care Leave Project concluded that “[t]he proportion and construction of leave policies available to public sector employees differs little from those offered private sector employees.” Hibbs, 538 U. S., at 730, n. 3 (quoting 1986 House Hearing 33 (statement of Meryl Frank)). Roughly 28% of women employed in the public sector did not receive eight weeks of job-protected medical leave to recover from childbirth. See 1987 Senate Hearings, pt. 1, pp. 31, 35, 39 (statement of James T. Bond, National Counsel of Jewish Women). A South Carolina state legislator testified: “[I]n South Carolina, as well as in other states . . . no unemployment compensation is paid to a woman who is necessarily absent from her place of employment because of pregnancy or maternity.” See id., pt. 2, p. 361 (statement of Rep. Irene Rudnick). According to an employee of the State of Georgia, if state employees took leave, it was held against them when they were considered for promotions: “It is common practice for my Department to compare the balance sheets of workers who have and have not used [leave] benefits in determining who should and should not be promoted.” Hearing on H. R. 2 before the Subcommittee on Labor-Management Relations of the House Committee on Education and Labor, 102d Cong., 1st Sess., 36 (1991) (statement of Robert E. Dawkins). See also id., at 33 (One type of leave for Georgia state employees “boils down to whether your supervisor wants you to come back or not.”). In short, Congress had every reason to believe that a pattern of workplace discrimination against pregnant women existed in public-sector employment, just as it did in the private sector.

B

“[A] state’s refusal to provide pregnancy leave to its employees,” Maryland responds, is “not unconstitutional.” Brief for Respondents 23 (citing Geduldig v. Aiello, 417 U. S. 484, 495 (1974) ). Aiello’s footnote 20 proclaimed that discrimination on the basis of pregnancy is not discrimination on the basis of sex. In my view, this case is a fit occasion to revisit that conclusion. Footnote 20 reads:

“The dissenting opinion to the contrary, this case is . . . a far cry from cases like Reed v. Reed, 404 U. S. 71 (1971) , and Frontiero v. Richardson, 411 U. S. 677 (1973) , involving discrimination based upon gender as such. The California insurance program does not exclude anyone from benefit eligibility because of gender but merely removes one physical condition—pregnancy—from the list of compensable disabilities. While it is true that only women can become pregnant, it does not follow that every legislative classification concerning pregnancy is a sex-based classification . . . .

“The lack of identity between the excluded disability and gender as such under this insurance program becomes clear upon the most cursory analysis. The program divides potential recipients into two groups—pregnant women and nonpregnant persons. While the first group is exclusively female, the second includes members of both sexes. The fiscal and actuarial benefits of the program thus accrue to members of both sexes.” 417 U. S., at 496, n. 20.

First, “[a]s an abstract statement,” it is “simply false” that “a classification based on pregnancy is gender-neutral.” Bray v. Alexandria Women’s Health Clinic, 506 U. S. 263, 327 (1993) (Stevens, J., dissenting). Rather, discriminating on the basis of pregnancy “[b]y definition . . . discriminates on account of sex; for it is the capacity to become pregnant which primarily differentiates the female from the male.” General Elec. Co. v. Gilbert, 429 U. S. 125 –162 (1976) (Stevens, J., dissenting). See also Issacharoff & Rosenblum, Women and the Workplace: Accommodating the Demands of Pregnancy, 94 Colum. L. Rev. 2154, 2180 (1994) (“[I]t is precisely because pregnancy is a condition unique to women that the exclusion of pregnancy from disability coverage is a sex-based classification . . . .”).

This reality is well illustrated by the facts of Aiello. The California disability-insurance program at issue granted disability benefits for virtually any conceivable work disability, including those arising from cosmetic surgery, skiing accidents, and alcoholism. See Brief for EEOC as Amicus Curiae in Aiello, O. T. 1973, No. 73–640, p. 7. It also compensated men for disabilities caused by ailments and procedures that affected men alone: for example, vasectomies, circumcision, and prostatectomies. See Brief for American Civil Liberties Union et al. as Amici Curiae in id., at 17–18. Only pregnancy was excluded from the definition of disability. See Cal. Un. Ins. Code Ann. §2626 (West 1972); Aiello, 417 U. S., at 489. As Justice Brennan insightfully concluded in dissent, “a limitation is imposed upon the disabilities for which women workers may recover, while men receive full compensation for all disabilities suffered . . . . Such dissimilar treatment of men and women, on the basis of physical characteristics inextricably linked to one sex, inevitably constitutes sex discrimination.” Id., at 501.

Second, pregnancy provided a central justification for the historic discrimination against women this Court chronicled in Hibbs. See 538 U. S., at 729 (“[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.” (quoting Muller v. Oregon, 208 U. S. 412, 422 (1908) ; 2d and 3d alterations in Hibbs)). See also Siegel, Employment Equality Under the Pregnancy Discrimination Act of 1978, 94 Yale L. J. 929, 942 (1985) (Pregnancy “is a biological difference central to the definition of gender roles, one traditionally believed to render women unfit for employment.”). Relatedly, discrimination against pregnant employees was often “based not on the pregnancy itself but on predictions concerning the future behavior of the pregnant woman when her child was born or on views about what her behavior should be.” Williams 355. See also S. Rep. No. 95–331, p. 3 (1977) (“[T]he assumption that women will become pregnant and leave the labor market is at the core of the sex stereotyping resulting in unfavorable disparate treatment of women in the workplace.”).

In sum, childbearing is not only a biological function unique to women. It is also inextricably intertwined with employers’ “stereotypical views about women’s commitment to work and their value as employees.” Hibbs, 538 U. S., at 736. Because pregnancy discrimination is inevitably sex discrimination, and because discrimination against women is tightly interwoven with society’s beliefs about pregnancy and motherhood, I would hold that Aiello was egregiously wrong to declare that discrimination on the basis of pregnancy is not discrimination on the basis of sex.

C

Boerne’s third step requires “ ‘a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.’ ” Ante, at 5 (quoting 521 U. S., at 520). Section 2612(a)(1)(D), I would conclude, is an appropriate response to pervasive discriminatory treatment of pregnant women. In separating self-care leave for the physical disability following childbirth, §2612(a)(1)(D), which affects only women, from family-care leave for parenting a newborn baby, §2612(a)(1)(A), for which men and women are equally suited, Congress could attack gender discrimination and challenge stereotypes of women as lone childrearers. Cf. Hibbs, 538 U. S., at 731 (States’ extended “maternity” leaves, far exceeding a woman’s physical disability following childbirth, were attributable “to the pervasive sex-role stereotype that caring for family members is women’s work.”).

It would make scant sense to provide job-protected leave for a woman to care for a newborn, but not for her recovery from delivery, a miscarriage, or the birth of a stillborn baby. And allowing States to provide no pregnancy-disability leave at all, given that only women can become pregnant, would obviously “exclude far more women than men from the workplace.” Id., at 738.

The plurality’s statement that Congress lacked “widespread evidence of sex discrimination . . . in the administration of sick leave,” ante, at 6, misses the point. So too does the plurality’s observation that state employees likely “could take leave for pregnancy-related illnesses”—presumably severe morning sickness, toxemia, etc.—under paid sick-leave plans, ante, at 7. Congress heard evidence that existing sick-leave plans were inadequate to ensure that women were not fired when they needed to take time out to recover their strength and stamina after childbirth. The self-care provision responds to that evidence by requiring employers to allow leave for “ongoing pregnancy, miscarriages, . . . the need for prenatal care, childbirth, and recovery from childbirth.” S. Rep. No. 103–3, p. 29 (1993).

That §2612(a)(1)(D) entitles all employees to up to 12 weeks of unpaid, job-protected leave for a serious health condition, rather than singling out pregnancy or childbirth, does not mean that the provision lacks the requisite congruence and proportionality to the identified constitutional violations. As earlier noted, supra, at 6–7, Congress made plain its rationale for the prescription’s broader compass: Congress sought to ward off the unconstitutional discrimination it believed would attend a pregnancy-only leave requirement. Under the caption “Equal protection and non-discrimination,” Congress explained:

“The FMLA addresses the basic leave needs of all employees. . . . This is an important principle reflected in the bill.

“A law providing special protection to women . . . , in addition to being inequitable, runs the risk of causing discriminatory treatment. Employers might be less inclined to hire women . . . . For example, legislation addressing the needs of pregnant women only might encourage discriminatory hiring practices against women of child bearing age. Legislation addressing the needs of all workers equally does not have this effect. By addressing the serious leave needs of all employees, the FMLA avoids providing employers the temptation to discriminate [against women].

.     .     .     .     .

“The legislation is [thus] based not only on the Commerce Clause, but also on the guarantees of equal protection . . . embodied in the Fourteenth Amendment.” H. R. Rep. No. 102–135, pt. 1, pp. 27–28 (1991) (hereinafter 1991 House Report).

Congress’ concern was solidly grounded in workplace realities. After this Court upheld California’s pregnancy-only leave policy in California Fed., Don Butler, President of the Merchants and Manufacturers Association, one of the plaintiffs in that case, told National Public Radio reporter Nina Totenberg that, as a result of the decision, “many employers will be prone to discriminate against women in hiring and hire males instead.” 1987 House Hearing 36. Totenberg replied, “But that is illegal, too”—to which Butler responded, “Well, that is illegal, but try to prove it.” Ibid.

Finally, as in Hibbs, it is important to note the moderate cast of the FMLA, in particular, the considerable limitations Congress placed on §§2612(a)(1)(A)–(D)’s leave requirement. See 538 U. S., at 738–739. FMLA leave is unpaid. It is limited to employees who have worked at least one year for the employer and at least 1,250 hours during the past year. §§2611(2)(A), 2612(c)(1). High-ranking employees, including state elected officials and their staffs, are not within the Act’s compass. §§203(e)(2)(C), 2611(3). Employees must provide advance notice of foreseeable leaves. §2612(e). Employers may require a doctor’s certification of a serious health condition. §2613(a). And, if an employer violates the FMLA, the employees’ recoverable damages are “strictly defined and measured by actual monetary losses.” Hibbs, 538 U. S., at 740 (citing §§2617(a)(1)(A)(i)–(iii)). The self-care provision, I would therefore hold, is congruent and proportional to the injury to be prevented.

III

But even if Aiello senselessly holds sway, and impedes the conclusion that §2612(a)(1)(D) is an appropriate response to the States’ unconstitutional discrimination against pregnant women, 6 I would nevertheless conclude that the FMLA is valid §5 legislation. For it is a meet response to “the States’ record of unconstitutional participation in, and fostering of, gender-based discrimination in the administration of [parental and family-care] leave benefits.” Hibbs, 538 U. S., at 735. See also id., at 729–731, and n. 5 (Congress adduced evidence “of a pattern of constitutional violations on the part of the States” in granting parental and family-care leave).

Requiring States to provide gender-neutral parental and family-care leave alone, Congress was warned, would promote precisely the type of workplace discrimination Congress sought to reduce. The “pervasive sex-role stereotype that caring for family members is women’s work,” id., at 731, Congress heard, led employers to regard required parental and family-care leave as a woman’s benefit. Carol Ball, speaking on behalf of the U. S. Chamber of Commerce, testified that she did not think “there are going to be many men that take up . . . parental leave.” See Hearing on S. 345 before the Subcommittee on Children, Family, Drugs, and Alcoholism of the Senate Committee on Labor and Human Resources, 101st Cong., 1st Sess., 39 (1989) (statement of Carol Ball). She frankly admitted that she herself would choose to hire a man over an equally qualified woman if parental leave was required by law. Id., at 30.

Others similarly testified that mandating gender-neutral parental leave would lead to discrimination against women. A representative of the National Federal of Independent Business stated: “Requiring employers to provide parental leave benefits creates clear pressures for subtle discrimination based on . . . sex. When choosing between two equally qualified candidates, an employer may be more likely to hire the candidate least likely to take the leave. It is the wage levels and jobs of women of childbearing years which are most at risk in such a situation.” Hearing on H. R. 1 before the Subcommittee on Labor-Management Relations of the House Committee on Education and Labor, 103d Cong., 1st Sess., 95 (1993). See also 1989 House Hearing 169 (statement of Cynthia Simpler, American Society for Personnel Administration) (“Since working women will be viewed as the most likely candidates for parental leave, hidden discrimination will occur if this bill becomes law. Women of child-bearing age will be viewed as risks, potentially disrupting operations through an untimely leave.”).

Conversely—unlike perceptions surrounding who takes parental and family-care leave—Congress was told that men and women take medical leave approximately equally. According to one study, male workers missed an average of 4.9 days of work per year due to illness or injury; female workers missed 5.1 days. See 1991 House Report, pt. 1, p. 28. “[T]he incidence of serious medical conditions that would be covered by medical leave under the bill,” Congress determined, “is virtually the same for men and women. Employers will find that women and men will take medical leave with equal frequency.” Ibid. “[P]arental and medical leave,” Congress was thus alerted, “are inseparable”:

“In the words of an old song, ‘You can’t have one without the other.’

.     .     .     .     .

“Adoption of parental leave protections without medical leave would . . . encourage discrimination against women of child-bearing age, who constitute approximately 73 percent of all the women in the labor force.

“Employers would tend to hire men, who are much less likely to claim [the parental leave] benefit. . . .

“Parental leave without medical leave would be the modern version of protective labor laws.” 1986 House Hearing 33–34 (Statement of Irene Natividad, National Women’s Political Caucus).

Congress therefore had good reason to conclude that the self-care provision—which men no doubt would use—would counter employers’ impressions that the FMLA would otherwise install female leave. Providing for self-care would thus reduce employers’ corresponding incentive to discriminate against women in hiring and promotion. In other words, “[t]he availability of self-care leave to men serves to blunt the force of stereotypes of women as primary caregivers by increasing the odds that men and women will invoke the FMLA’s leave provisions in near-equal numbers.” See Brief for National Partnership for Women & Families et al. as Amici Curiae 26. As Judge Lipez explained:

“If Congress had drawn a line at leave for caring for other family members, there is greater likelihood that the FMLA would have been perceived as further reason to avoid granting employment opportunities to women. Heretofore, women have provided most of the child and elder care, and legislation that focused on these duties could have had a deleterious impact because of the prevalent notion that women take more advantage of such leave policies. The inclusion of personal medical leave in the scheme, unrelated to any need to care for another person, undermines the assumption that women are the only ones taking leave because men, presumably, are as likely as women to get sick.” Laro v. New Hampshire, 259 F. 3d 1, 21 (CA1 2001) (dissenting opinion).

Senator Barbara Boxer advanced a similar point. Responding to assertions that the FMLA would lead employers to discriminate against women, Senator Boxer stated: “[T]o say that women will not be hired by business is a specious argument . . . . Men also get sick. They get cancer. They get heart disease. They have ailments. And this bill applies to men and women.” 139 Cong. Rec. 1697 (1993). See also 1987 Senate Hearings, pt. 2, p. 536 (“I just think it’s wrong that there will be a perception that this is something that only women will take and they are, therefore, more expensive. Both men and women have medical conditions . . . .” (statement of Prof. Susan Deller Ross, Georgetown University Law Center)).

The plurality therefore gets it wrong in concluding that “[o]nly supposition and conjecture support the contention that the self-care provision is necessary to make the familycare provisions effective.” Ante, at 9. Self-care leave, I would hold, is a key part of Congress’ endeavor to make it feasible for women to work and have families. See 1991 Senate Report 25–26 (“This legislation is essential if the nation is to address the dramatic changes that have occurred in the American workforce in recent years. . . . The once-typical American family, where the father worked for pay and the mother stayed at home with the children, is vanishing. . . . Today, more than one-half of all mothers with infants under one year of age work outside the home. That figure has doubled since 1970 . . . . By the year 2000, about three out of every four American children will have mothers in the workforce.”). By reducing an employer’s perceived incentive to avoid hiring women, §2612(a)(1)(D) lessens the risk that the FMLA as a whole would give rise to the very sex discrimination it was enacted to thwart. The plurality offers no legitimate ground to dilute the force of the Act.

IV

Two additional points. First, this Court reached a different conclusion than the one I reach here in Board of Trustees of Univ. of Ala. v. Garrett, 531 U. S. 356 (2001) , and Kimel, 528 U. S. 62 . In those cases, as we observed in Hibbs, we reviewed statutes targeting disability and age discrimination, respectively. Neither disability nor age is a suspect classification under this Court’s Equal Protection Clause jurisprudence; States may discriminate on the basis of disability or age as long as the classification is rationally related to a legitimate state interest. See Garrett, 531 U. S., at 366–367; Kimel, 528 U. S., at 83–84. Therefore, for the statutes to be responsive to or designed to prevent unconstitutional discrimination, Congress needed to rely on a pattern of irrational state discrimination on the basis of disability or age. See Garrett, 531 U. S., at 368; Kimel, 528 U. S., at 89. Here, however, Congress homed in on gender discrimination, which triggers heightened review. See United States v. Virginia, 518 U. S. 515, 531 (1996) (“Parties who seek to defend gender-based government action must demonstrate an exceedingly persuasive justification for that action.” (internal quotation marks omitted)). “[I]t was [therefore] easier for Congress to show a pattern of state constitutional violations.” Hibbs, 538 U. S., at 736.

Finally, the plurality’s opinion does not authorize state employers to violate the FMLA, although it does block injured employees from suing for monetary relief. The self-care provision remains valid Commerce Clause legislation, Maryland concedes, and consequently binds the states, as well as the private sector. Tr. of Oral Arg. 25; Brief for Respondents 32–33. An employee wrongly denied self-care leave, Maryland also acknowledges, may, pursuant to Ex parte Young, 209 U. S. 123 (1908) , seek injunctive relief against the responsible state official. See Brief for Respondents 33. Moreover, the U. S. Department of Labor may bring an action against a state for violating the self-care provision and may recover monetary relief on an employee’s behalf. 29 U. S. C. §§2617(b)(2)–(3), (d).

V

The plurality pays scant attention to the overarching aim of the FMLA: to make it feasible for women to work while sustaining family life. Over the course of eight years, Congress considered the problem of workplace discrimination against women, and devised the FMLA to reduce sex-based inequalities in leave programs. Essential to its design, Congress assiduously avoided a legislative package that, overall, was or would be seen as geared to women only. Congress thereby reduced employers’ incentives to prefer men over women, advanced women’s economic opportunities, and laid the foundation for a more egalitarian relationship at home and at work. The self-care provision is a key part of that endeavor, and, in my view, a valid exercise of congressional power under §5 of the Fourteenth Amendment. I would therefore reverse the judgment of the U. S. Court of Appeals for the Fourth Circuit.

__________________________________

1  I remain of the view that Congress can abrogate state sovereign immunity pursuant to its Article I Commerce Clause power. See Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 100 (1996) (Souter, J., dissenting). Beyond debate, 29 U. S. C. §2612(a)(1)(D) is valid Commerce Clause legislation. See infra, at 21. I also share the view that Congress can abrogate state immunity pursuant to §5 of the Fourteenth Amendment where Congress could reasonably conclude that legislation “constitutes an appropriate way to enforce [a] basic equal protection requirement.” Board of Trustees of Univ. of Ala. v. Garrett, 531 U. S. 356, 377 (2001) (Breyer, J., dissenting) (internal quotation marks omitted).

2  Enacted as an addition to the section defining terms used in Title VII of the Civil Rights Act of 1964, the Pregnancy Discrimination Act of 1978 (PDA) provides: “The terms ‘because of sex’ or ‘on the basis of sex’ include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work . . . .” 92Stat. 2076, 42 U. S. C. §2000e(k).

3  Lenhoff advanced The Parental and Disability Act of 1985, introduced by Rep. Patricia Schroeder. See S. Wisensale, Family Leave Policy: The Political Economy of Work and Family in America 136–138 (2001). She was later named Vice Chair of the Commission on Leave, created by the FMLA to study family and medical leave policies. See 29 U. S. C. §§2631–2632; U. S. Commission on Family and Medical Leave, A Workable Balance: Report to Congress on Family and Medical Leave Policies 210 (Apr. 30, 1996).

4  For example, in addition to mandating pregnancy leave, the California statute allowed employers to discriminate against pregnant workers. Employers could refuse to select a pregnant woman for a training program if she would not finish the program at least three months before giving birth. See 1978 Cal. Stats. ch. 1321, §1. The law limited pregnancy disability leave to six weeks, §1, and provided that women were to receive paid disability benefits for only three weeks after childbirth, §2, even if a particular woman remained disabled beyond the three-week period, and even if a man received paid disability benefits throughout his disability. Finally, although it prohibited employers from refusing to promote a woman because of pregnancy, it did not forbid refusing to hire a woman on that basis. See §1. See also Brief for National Organization for Women et al. as Amici Curiae in California Fed. Sav. & Loan Assn. v. Guerra, O. T. 1985, No. 85–494, pp. 14–15. These provisions were all expressly made inapplicable to employers covered by Title VII, “[i]n the event Congress enacts legislation amending Title VII . . . to prohibit sex discrimination on the basis of pregnancy,” namely, the PDA. See 1978 Cal. Stats. ch. 1321, §4.

5  The medical recovery period for a normal childbirth is four to eight weeks. See Nevada Dept. of Human Resources v. Hibbs, 538 U. S. 721, 731, n. 4 (2003) .

6  Notably, the plurality does not cite or discuss Geduldig v. Aiello, 417 U. S. 484 (1974) , perhaps embarrassed by that opinion’s widely criticized conclusion that discrimination based on pregnancy does not involve “discrimination based upon gender as such,” id., at 496, n. 20. See supra, at 10–13; E. Chemerinsky, Constitutional Law 759 (3d ed. 2006) (“It is hard to imagine a clearer sex-based distinction” thanthe one at issue in Aiello); Kay, Equality and Difference: The Case of Pregnancy, 1 Berkeley Women’s L. J. 1, 31 (1985) (“[Aiello] results in unequal treatment of similarly situated women and men who have engaged respectively in reproductive conduct [and wish to continue working]. It should be overruled.”); Law, Rethinking Sex and the Constitution, 132 U. Pa. L. Rev. 955, 983–984 (1984) (“Criticizing [Aiello] has . . . become a cottage industry. Over two dozen law review articles have condemned both the Court’s approach and the result. . . . Even the principal scholarly defense of [Aiello] admits that the Court was wrong in refusing to recognize that the classification was sex-based . . . .”); Karst, The Supreme Court 1976 Term Foreword: Equal Citizenship under the Fourteenth Amendment, 91 Harv. L. Rev. 1, 54, n. 304 (1977) (“[T]he constitutional sport of [Aiello] and last Term’s even sillier statutory counterpart, General Elec. Co. v. Gilbert, 429 U. S. 125 (1976) , with their Alice-in-Wonderland view of pregnancy as a sex-neutral phenomenon, are good candidates for early retirement. These decisions are textbook examples of the effects of underrepresentation on “legislative” insensitivity. Imagine what the presence of even one woman Justice would have meant to the Court’s conferences.”).

SUPREME COURT OF THE UNITED STATES

_________________

No. 10–1016

_________________

Daniel Coleman, PETITIONER v. Court of Appeals of Maryland et al.

on writ of certiorari to the united states court of appeals for the fourth circuit

[March 20, 2012]

Justice Scalia, concurring in the judgment.

The plurality’s opinion seems to me a faithful application of our “congruence and proportionality” jurisprudence. So does the opinion of the dissent. That is because the varying outcomes we have arrived at under the “congruence and proportionality” test make no sense. Which in turn is because that flabby test is “a standing invitation to judicial arbitrariness and policy-driven decisionmaking,” Tennessee v. Lane, 541 U. S. 509 –558 (2004) (Scalia, J., dissenting). Moreover, in the process of applying (or seeming to apply) the test, we must scour the legislative record in search of evidence that supports the congressional action. See ante, at 6–11; post, at 16–20 (opinion of Ginsburg, J.). This grading of Congress’s homework is a task we are ill suited to perform and ill advised to undertake.

I adhere to my view that we should instead adopt an approach that is properly tied to the text of §5, which grants Congress the power “to enforce, by appropriate legislation,” the other provisions of the Fourteenth Amendment. (Emphasis added.) As I have explained in greater detail elsewhere, see Lane, supra, at 558–560, outside of the context of racial discrimination (which is different for stare decisis reasons), I would limit Congress’s §5 power to the regulation of conduct that itself violates the Fourteenth Amendment. Failing to grant state employees leave for the purpose of self-care—or any other purpose, for that matter—does not come close.

Accordingly, I would affirm the judgment of the Court of Appeals.

SUPREME COURT OF THE UNITED STATES

_________________

No. 10–1016

_________________

Daniel Coleman, PETITIONER v. Court of Appeals of Maryland et al.

on writ of certiorari to the united states court of appeals for the fourth circuit

[March 20, 2012]

Justice Thomas, concurring.

I join the plurality’s opinion holding that Congress did not validly abrogate the States’ immunity from suit for money damages for violations of the self-care provision of the Family and Medical Leave Act of 1993 (FMLA), 29 U. S. C. §2612(a)(1)(D). As the plurality explains, this case is distinguishable from Nevada Dept. of Human Resources v. Hibbs, 538 U. S. 721 (2003) , which held that Congress validly abrogated the States’ immunity from suit for violations of the FMLA’s family-care provision, §2612(a)(1)(C). Ante, at 5–6. I write separately only to reiterate my view that Hibbs was wrongly decided because the family-care provision is not sufficiently linked to a demonstrated pattern of unconstitutional discrimination by the States. See 538 U. S., at 745–754 (Kennedy, J., joined by Scalia and Thomas, JJ., dissenting); Tennessee v. Lane, 541 U. S. 509 –566 (2004) (Thomas, J., dissenting). The self-care provision at issue in this case is even further removed from any such pattern.

Print this transcript Transcript: 

ORAL ARGUMENT OF MICHAEL L. FOREMAN ON BEHALF OF THE PETITIONER

Chief Justice John G. Roberts: We'll hear argument first this morning in Case 10-1016, Coleman v. The Court of Appeals of Maryland.

Mr. Foreman.

Mr. Foreman: Thank you, Mr. Chief Justice, and may it please the Court:

The propriety of any section 5 legislation is judged by in reference to the historical perspective that it reflects, and that historical perspective is very clear in -- and it's set very clearly by Congress and by this Court.

It -- it is an unfortunate, long history of State-Sponsored gender discrimination.

And that discrimination embodies gender-based stereotypes that took a very firm hold in the employment area, where women had difficulty obtaining employment and holding employment.

And this Court in a litany of cases recognized these gender-based stereotypes as an improper assumption about women's abilities.

In Frontiero v. Richardson, it rejected this issue that women's mission were to be women -- to be wives and mothers; Stanton v. Stanton, that women were to be the homemaker and men the breadwinner, and--

Justice Elena Kagan: Well, Mr. Foreman, I -- I guess the question in this case is what this particular statutory provision has to do with gender discrimination and the history of gender discrimination: Whether Congress was aiming to eradicate gender discrimination through this provision, or whether it was trying to do something else entirely.

Mr. Foreman: --And -- and it was directly attempting to address these gender-based stereotypes in a couple different ways as a practical matter.

At that time, when an employer saw a woman, they didn't necessarily just see a worker.

They-saw a person that could become pregnant, and worked on these gender-based stereotypes, that that woman would either become pregnant, would be disabled because of pregnancy-related disabilities, but in any event was a least -- least attractive employee.

And the Family and Medical Leave Act addresses that specifically in its purposes section.

It specifically says that it is intended

"to promote the equal opportunity for women and men pursuant to the Equal Protection Clause. "

But more specific to the self-care provision, Congress made it very clear what they were trying -- attempting to do.

If you move to the 6, they address--

Chief Justice John G. Roberts: Where -- where are you reading from, counsel?

Mr. Foreman: --I am reading from appendix A to the brief, and it is -- that

"employment standards that apply to one gender only have a serious potential for encouraging employers to discriminate against employees and applicants of employment who are of that gender. "

That's the negative inference argument that we make in our brief.

But even more to the point, if you move to the purpose sections at appendix 2, page -- appendix 2, it specifically is intended to minimize the potential for employment discrimination on the basis of sex by ensuring generally that leave is available for eligible medical reasons, including maternity-related disabilities, and for compelling family reasons, and ensure equal protection under the law--

Justice Samuel Alito: Well, following up on Justice Kagan's question, I have -- I have difficulty seeing how providing 12 weeks of leave for self-care for both men and women affects the incentive of an employer who we will assume has an inclination to discriminate against women based on the possibility that a -- a woman applicant for employment may become pregnant.

I -- I just don't see how that would affect the incentives of -- of an employer in that situation.

Mr. Foreman: --The rationale of Congress at that point was that they could address this issue several different ways; they -- and they passed (A), (B), and (C): The birth of the child, the adoption of the child, and the Family and Medical Leave Act, against -- again, addressing gender-based stereotypes.

Justice Samuel Alito: Well, (A) is not at issue, right?

Okay.

So we're just dealing with (D), which concerns a serious health condition.

So you have an employer who is willing to discriminate on the basis of gender, and the employer has two applicants for employment, a man and a woman.

And the employer says, well, if I hire the man, he might take 12 weeks of leave for a serious medical condition.

And if I hire the woman, she might take 12 weeks of leave for a serious medical condition which might be something that either men or women could get, or it also could be a sickness related to pregnancy.

So, there still is -- there still would be an incentive for this hypothetical employer to discriminate against the woman.

Mr. Foreman: But one of the things Congress tried to do is to take that incentive away.

Justice Samuel Alito: But how does it do that?

That's what I'm -- I understand that and it's a worthy objective.

I just don't understand how giving both men and women 12 weeks for self-care affects the incentive.

Mr. Foreman: It affects the incentive by providing -- it becomes the equal opportunity employer.

It evens the ground.

And the way it would do it is an employer if you just have (A) through (C) can look at an employee and, based upon gender stereotypes, would make the assumption that the women, because of historically the role they were required to play, would be taking all the leave under (A) and (B) and (C).

And so why would I even hire that woman in the first place?

Justice Elena Kagan: But women don't get sick less often than men, do they?

Mr. Foreman: No, absolutely.

Justice Elena Kagan: So you're just adding something to both sides of the balance and it doesn't affect the employer's incentive.

The employer still -- the hypothetical discriminatory employer would still say, well, women are going to be caregivers more often, so I'm -- I'm going to not hire that person.

Mr. Foreman: But under (A), (B), and (C) after the Family and Medical Leave, an employer would look and say both men can take leave now.

And I think we need to step back--

Justice Elena Kagan: And that's why (A), (B), and (C) go to the problem, but what does (D) have to do with it?

If you assume that both men and women get sick at an approximately equal rate -- maybe you don't assume that -- but if you do, it doesn't seem to factor into the employer's incentives in any way.

Mr. Foreman: --There's nothing in the record that demonstrates that there's a differential rate between the self-care rate for men and women.

But the perception was that women, because of pregnancy, because of pregnancy-related disabilities, would in fact take more leave.

And so that I would look at a woman as an employer and say: She will become pregnant, she will take leave, she will be disabled.

However, with (D) now, but the man can take a disability leave on the same basis.

And the hope of Congress was not that it would happen immediately, but by the -- what would happen is with the application of family and medical leave at some point men would be taking (A), (B), and (C), and in fact, women and men would be taking family and medical self-care leave--

Justice Ruth Bader Ginsburg: Mr. Foreman, I think everyone has been trying to get you to focus on the health care sickness leave alone, and in the -- in the portions of the act that this Court upheld, the Congress said there is this close association of women with children; we think it's going to be good for everybody if fathers recognize their responsibility for elderly parents, sick children, sick spouse.

So, we -- we can see the rationale for trying to change the stereotype, trying to open up care-giving for both sexes.

But you have answered the question that women and men get sick; there's no -- there's no disproportion.

So how do you tie that, just that part of the act, where there isn't the obvious association of women with childbearing?

So we extend the benefit to men, so they will be associated with child care.

There isn't that same link here, is there?

Mr. Foreman: --I think it is the same linkage trying to address -- it's addressing a difference there, but it's addressing the linkage that women will in fact take pregnancy-based leave or pregnancy-based disabilities and therefore are less attractive, less -- employed; and that is what self-care was intended to do.

Justice Elena Kagan: So you are saying -- let me just make sure I understand.

You are saying that the -- that Congress is thinking that an employer actually does think that women take more sick leave because women get pregnant.

And just as Congress was thinking about the employer who thought women are going to take more family leave, you think Congress was thinking about the employer who thinks women are also going to take more sick leave because of pregnancy?

Mr. Foreman: Absolutely, Your Honor.

And in response to Justice Alito's question -- and I'm sorry if I gave a confusing response.

There are two separate ways of addressing that.

You can look at self-care as a stand-alone provision, without (A), (B), and (C), Congress passed just self-care.

In that case it would be responding to exactly that type of gender stereotype, and 12 weeks would be a congruent proportional response.

The other way to look at it is that's not the way Congress passed the bill.

They passed it as a comprehensive response with (A), (B) and (C), and hence (D) then becomes a bit of an equalizer to take away this negative incentive that only women would take (A), (B), and (C).

So there's two separate ways that this Court can get to the same conclusion, and that conclusion is that this is a congruent and proportional response to gender-based discrimination.

Justice Elena Kagan: Do you have any evidence that Congress in fact was thinking about either of these two things?

Is there anything in the record that suggests either of those two theories?

Mr. Foreman: Yes, there -- there is, Your Honor.

And let me -- let me take the negative inference first, because I think looking at the statute as a comprehensive makes sense -- is it was introduced -- and I am reading from page 43.

It's referenced on page 43 of our brief that, starting in 1987, National Women's Political Caucus testified, quote:

"My primary purpose is to stress that parental and medical leave are inseparable. "

"In the words of the old song, 'You can't have one without the other. "

And the point she then later on to explain was parental leave without medical leave would encourage discrimination against women of child-bearing age, who constitute approximately 73 percent of all women in the workforce.

Employers would tend to hire men, who are much less likely to make this claim.

Fast forward to 1993 at the time of the passage of -- and this would be on page 42 of our merits brief:

"A law providing special protection to women or any defined group, in addition to being inequitable, runs the risk of causing discrimination. "

The FML addresses this by addressing the needs of all workers, avoids this risk.

The FMLA is based on the guarantees of equal protection.

So it addresses that aspect of -- it addresses that aspect.

Justice Sonia Sotomayor: Counselor, I -- I take your argument, but if you look at the legislative record, the reports, the findings, et cetera, and the statements repeatedly by many congresspeople, there appears to be -- have been a dual motive for this provision.

They were in fact engaged in the question of discrimination against pregnant women.

That was recognized in Hibbs, and that's clear.

But with respect to this particular provision, they were also concerned about economic effect that -- that happened to everyone, men and women, who became disabled.

And so they appear to have had dual motivation.

Part of the bill was gender-related, part of the bill seemed to be disability-related.

What do -- how do we judge that kind of bill, where Congress may have been expanding the benefits it's giving to people, not solely because of gender discrimination, but because of this desire to address disability discrimination?

Mr. Foreman: Justice Sotomayor, I -- I think the way you judge it is rely on what Congress's expressed findings and provisions are.

And to the extent this Court makes a determination that the FMLA is responsive to gender-based discrimination, then how Congress chose to address that is congruent and proportional.

The fact that Congress may also have had other motives, that there was a concern with -- with families, and that families would benefit, should not be used to undermine the fact that Congress indeed was acting pursuant to one of its broadest powers, section 5 of the Fourteenth Amendment, and therefore that their -- their considered judgment is a congruent and proportional response.

Part of -- part of the findings is clearly reflective of the fact that this covered both governmental employers and private industry, so there was reference to Commerce Clause type of -- of analysis which my colleagues raised repeatedly in their brief.

But the court -- the Congress needed to do that because they were regulating private employment, but at the same time recognized the extent that we are -- are going to regulate State-based conduct.

Justice Samuel Alito: Well, with respect to the Commerce Clause, could I ask you this.

If we were to disagree with you on the Fourteenth Amendment and hold that it -- that Congress didn't validly abrogate State sovereign immunity with respect to subsection (D), would your client still be able to seek reinstatement or other injunctive relief?

Mr. Foreman: Justice Alito, I think what you're -- you'll clearly correct me if I am wrong, but I think what you are responding to, is there an Ex parte Young action here that would be able to be made consistent with the Commerce Clause, under the Commerce Clause?

And the answer is -- and I know that both Justice Kennedy and Justice Rehnquist, I think, in one of his dissents, pointed out in the Family and Medical Leave Act that the employee may not be left out in the dark, because there is an Ex parte Young claim.

A couple points on that--

Justice Samuel Alito: Here the district court completely dismissed your FMLA claim, not just insofar as you sought damages.

I -- I think you also sought reinstatement and other equitable relief, but the district court dismissed it completely.

Mr. Foreman: --That's right.

Justice Samuel Alito: But you are not contesting that, are you?

Mr. Foreman: We are not contesting it consistent with any Ex parte Young claim.

What the district court did was, the claim is totally dismissed based on Eleventh Amendment immunity.

But if I could try to respond to your question more specifically, this Court has never as a Court hold that Ex parte Young type of action is available in this type of claim.

Assuming that it--

Justice Anthony Kennedy: Because this is for money damages.

Mr. Foreman: --Pardon?

Justice Anthony Kennedy: Because this is for money damages.

Ex parte Young was just injunctive relief.

The Eleventh Amendment primarily protects the treasury of the State against money damages.

Mr. Foreman: Correct.

Justice Anthony Kennedy: And it's not Ex parte Young.

Mr. Foreman: Correct.

But as -- as you pointed out in your dissent in Hibbs, that Ex parte Young may be available, but one of the concerns we have is again that the Court -- the majority Court has never held that.

I believe that is in fact the correct interpretation of the law, that it would be available for injunctive relief.

However, the Court has never defined the parameters of what an Ex parte Young action really gives a plaintiff, and that becomes very important--

Justice Samuel Alito: You said in this case.

That's basically what I'm asking.

If we were to disagree with you on the Fourteenth Amendment, are you asking us -- would we then simply affirm the Fourth Circuit?

Or would we have to -- would we have to make some accommodation for the possibility that the dismissal of your claim insofar as you sought injunctive relief may have been improper?

Mr. Foreman: --I think you would have to make that accommodation, but, with respect, Your Honor, I think that would be an incorrect approach.

And here's the reason why in Ex parte Young, a perfect example--

Justice Samuel Alito: I am trying to be a little bit helpful to you.

Mr. Foreman: --And apparently I missed that and I apologize.

Justice Samuel Alito: Okay.

Justice Ruth Bader Ginsburg: What relief did you ask for?

Damages we know and you have to overcome the Eleventh Amendment.

Injunctive relief you don't, but did you ask for it?

Mr. Foreman: In the complaint itself, it does not ask for injunctive relief pursuant to the Family and Medical Leave Act.

There were combined claims--

Justice Samuel Alito: I thought you did, but maybe I'm reading your complaint more generously than you read it yourself.

Justice Elena Kagan: I would go with Justice Alito here.

Mr. Foreman: --If that is your reading of it, we will certainly accept your reading.

Justice Ruth Bader Ginsburg: You must have asked for such other and further relief.

Mr. Foreman: But again back to the Ex parte Young, in the case Nelson v. The University of Tennessee -- Texas, the case that dealt exactly with this issue of abrogation of Eleventh Amendment immunity, and they found that there was valid abrogation of the Eleventh Amendment immunity, the State of Texas -- then the court was required to address the Ex parte Young issue.

And the State of Texas argued that reinstatement is not an appropriate remedy under Ex parte Young and that, while the Fifth Circuit ultimately rejected that, that is an argument that employees would have to face, what are the parameters of Ex parte Young.

And more importantly, that is not the remedy that Congress in their considered judgment believed was the appropriate remedy to address gender-based discrimination.

Justice Ruth Bader Ginsburg: Well, Congress must have thought that giving the woman back her job was an important part.

The whole idea is she wasn't supposed to be fired.

So I think that the -- the relief, the non-monetary relief, is certainly important.

Mr. Foreman: It is extremely important, but Congress did not stop there.

Congress decided it needed to take one step further and there needed to be monetary relief.

And I think Mr. Coleman's case illustrates exactly why.

Here Mr. Coleman exercised his rights that were supposedly guaranteeing him under the Family and Medical Leave Act, and indeed under a State law, and the State of Maryland fired him and he is out of work.

And what is the disincentive for the State to not do the same thing the next time if the only thing that you can get is possibly injunctive relief prohibiting him from doing that in the future and maybe reinstatement 2 or 3 years down the line?

Employees at that point cannot put their lives on hold.

They have a duty to go out and try to mitigate, try to find another job.

What is an employer to do?

And Congress said there needs to be more.

We passed Title VII to try to address gender-based discrimination, the Pregnancy Discrimination Act, but there were still voids.

And the Family and Medical Leave Act attempts to fill those voids and one of those voids is try to provide a monetary incentive so that the State of Maryland and private employers will in fact comply with the law.

Justice Ruth Bader Ginsburg: When you--

Justice Sonia Sotomayor: Can I -- I'm sorry.

Justice Ruth Bader Ginsburg: --When you say you're concerned about a disincentive to hire women, but the Pregnancy Discrimination Act makes that unlawful, so if an employer decides I don't want to hire women of child-bearing age, that is an out-and-out violation of the Pregnancy Discrimination Act, isn't it?

Mr. Foreman: That is, Your Honor, but the Pregnancy Discrimination Act did not fill the other gap which the Family and Medical--

Justice Ruth Bader Ginsburg: But you are relying on the incentive, the disincentive to hire women of child-bearing age.

The law protects the woman of child-bearing age by saying: Employer, you can't refuse to hire her, promote her, and all the rest because of pregnancy.

Mr. Foreman: --What the Pregnancy Discrimination Act provided was that you needed to treat pregnancy-related disabilities as you would other short-term disabilities.

So if an employer decided not to provide--

Justice Ruth Bader Ginsburg: I'm just asking you about -- your -- your argument rests on an employer acting unlawfully, you see.

He won't hire -- we have to give them medical leave to everyone because otherwise the employer won't hire women.

And that's -- the question I'm asking is, you are assuming that the employer will break the law by refusing to hire women that -- of child-bearing age.

Mr. Foreman: --I don't want to make that assumption in my incentive argument.

I was using Mr. Coleman as an example of why Congress could have made a determination that monetary relief would be appropriate in the Family and Medical Leave Act.

Justice Ruth Bader Ginsburg: But your argument to a large extent depends -- or you say Congress did this because they wanted to eliminate or at least reduce one kind of discrimination against women in the job market.

Mr. Foreman: Yes.

Justice Ruth Bader Ginsburg: And that -- that discrimination was refusing to hire women of child-bearing age.

Well, they couldn't do it out and out because that would be a violation of the law.

So is Congress having in mind discrimination that is under -- under the radar screen, that is going to go on even though it's unlawful?

Mr. Foreman: I -- I don't think that was Congress's intent.

That is not what was reflected.

I think, again, they were trying to address it on two separate levels: One, the gender-based discrimination, the gender stereotype that women simply become less attractive; and in the broader statute to prevent the negative inference so that all -- that ultimately where we would get in society is the ability to take pregnancy-related leave, other leave, would not be viewed as a negative inference running against women, and therefore women ultimately would-become a nonissue.

And I see the light's on, so if I could reserve the balance of my time.

Chief Justice John G. Roberts: Thank you, counsel.

Mr. Howard.

ORAL ARGUMENT OF JOHN B. HOWARD, JR., ON BEHALF OF THE RESPONDENTS

Mr. Howard Jr.: Thank you, Mr. Chief Justice, and may it please the Court:

In order to affirm in this case, the Court need go no further than to distinguish Hibbs, and we think Hibbs is readily distinguishable.

And I would like to highlight four principal--

Justice Ruth Bader Ginsburg: Need go no further?

I'm sorry?

Mr. Howard Jr.: --I'm sorry, Justice Ginsburg.

Need go no further than simply to distinguish Hibbs.

And we think there are at least four distinctions that we'd like -- I'd like to highlight today.

The first is one that, Justice Kagan, your question goes to, which is subsections (A), (B), and (C) are all related in some fashion to women's roles with respect to work and family.

Subsection (D) really does not speak to that purpose.

And I think my second sort of distinction I would point to--

Justice Elena Kagan: If I could just stop you there, Mr. Howard, for a second.

I took from Mr. Foreman something that I hadn't understood from his briefs -- maybe because I just missed it -- which is that he's making a kind of analogous argument, that, just as in the prior provisions of the act, employers thought of women as caregivers and the response of Congress was to provide a gender-neutral leave benefit that had both -- that both women and men were eligible for.

So here, employers think of women as needing more medical leave because of pregnancy, and the response of Congress is to provide gender-neutral sick leave.

So what is your response to that argument?

Mr. Howard Jr.: --Congress, Justice Kagan, did not I think take that stereotype or perception that Mr. Foreman referred to into account.

And I'd specifically point the Court to page 21 of our brief, where we cite some Bureau of Labor Statistics studies indicating that men and women at the time took roughly the same amount of sick leave.

In fact, Mr. Foreman has conceded as much.

And that same study projects that men and women will take roughly the same amount of time after the enactment of the FMLA--

Justice Sonia Sotomayor: But, there certainly was -- there was certainly much conversation and testimony that, whether they in fact took the same amount of leave time or not, that women who were pregnant or were perceived as capable of getting pregnant were hired less frequently because subjectively the employers thought that they were more likely to take the time.

So, frankly, for years there was questions about whether law firms were hiring young -- not hiring young women because they feared they would leave in the middle of a big case or something else.

We all know those stories, so it is sort of common knowledge in many ways, but there was plenty of testimony related to that.

So assume that that was Congress's perception, because it was supported by the record or as much of the record as Hibbs recognized as adequate.

Where does that leave your argument?

Mr. Howard Jr.: --Well, I would make a couple of points in response to that, Justice Sotomayor.

First, the Pregnancy Discrimination Act was already in place, and so to the extent there were perceptions that employers might discriminate based on pregnancy disabilities, that would be unlawful under Title VII as amended by the Pregnancy Discrimination Act.

And the fact that -- and you are quite right that there is a fair amount of discussion in the legislative record, although I think it's less of a predominant theme than the concern for job security for working families, but there certainly is discussion about pregnancy discrimination and pregnancy disability as a type of illness.

But, we again would note that this is valid Commerce Clause legislation, and so to the extent that kind of discrimination was occurring, and leave was being denied or women were suffering adverse consequences in the workplace as a result of pregnancy discrimination, they could enforce the 12 weeks through a Title [= VII] action.

Justice Ruth Bader Ginsburg: They couldn't -- the Pregnancy Discrimination Act says you have to treat pregnancy like any other disability.

So if they are not giving anybody any leave for anything, they don't have to give any leave; not 12 weeks, not 1 day.

And that's what -- that's the gap that this legislation fills, essentially.

Yes, you do have to provide leave for women who have disabling conditions, including pregnancy, but then you have to give that to the men as well.

You can't reserve that for the one sex.

So it was the gap in the Pregnancy Discrimination Act that this -- this was referring to.

Mr. Howard Jr.: Yes, I agree, Justice Ginsburg.

But the gap that existed was the absence of a guaranteed period of leave.

In other words, it was the absence of the substantive entitlement to a certain amount of leave.

And in effect the gap that was being filled served as prophylaxis for Title VII, but not for constitutional violations.

Now--

Justice Samuel Alito: Assume for the sake of argument that for the applicants for particular provisions -- particular positions, I should say -- where the applicants are typically of a certain age, men tend to take less sick leave than women, because women also take sick leave for pregnancy-related illnesses.

So giving everybody 12 weeks eliminates the possibility that women who will be taking -- want to take additional -- want to take more sick leave will be fired because they exceed the amount of sick leave allowed by the employer for everybody.

Now, isn't that connected to eliminating discrimination in employment?

Mr. Howard Jr.: --Justice Alito, I think that one could argue that that is connected with eliminating pregnancy disability discrimination.

It's also connected to the purposes of (A), (B), and (C).

I think that the principal reason why employers do view potential hires as -- when they are women, as likely to take a lot of time off, I think goes more to the family caretaking provisions, and I think that is largely reflected in the record.

Justice Samuel Alito: Well, I don't think -- I have difficulty with the incentives argument either, honestly, either as the (D) or as to (C).

But I'm just talking about an argument based on consequences.

If an employer says you get 2 weeks of sick leave, period, after that if you can't come back you are fired, that may, at least for applicants within a certain age range, that may have a much more severe or a more severe impact on women than on men.

Mr. Howard Jr.: Yes, Justice Alito, and I think what--

Justice Samuel Alito: What would the answer to that be, that that's not intentional discrimination?

Mr. Howard Jr.: --That would certainly be part of the answer, and what I was going to say was that what you are describing is a disproportionate impact on women as a result of assumptions concerning pregnancy disability.

And of course, if States were engaging in this kind of conduct or if there were a disproportionate impact, that would not state an equal protection violation under Washington--

Justice Stephen G. Breyer: Why are you separating the four things.

I mean, I have heard it seems to me three separate rationales.

One, the easiest, is in (D) itself, sometimes a woman could have a miscarriage and of course she has to stay home.

And that isn't covered by (A), (B), or (C), so we cover it in (D), you know.

And then we put the men in too because we don't want to make this incentive just to not hire women.

That's one.

The second one was the one Justice Ginsburg brought up, that there is a gap in the pregnancy law which won't work unless you have to give people some medical leave.

So here it is, (D).

And the third one, which I think was related to what Justice Alito just said, is when -- you have to read it together to understand the third one.

You get weeks altogether, all right?

Now, that means once you put in (D) this act will have less of a bad effect.

The bad effect of the act is if you protect the women then the employers say, well, we're not going to hire women, perfect.

We have to give them 12 leaves, we'd have to give the men -- terrible, it's a terrible disincentive.

But then they worked out how to lessen the disincentive.

And the way you do that, you say 12 weeks overall.

Now look what happens.

A woman wants to take, say, 12 weeks to look after her family, and she gets separately sick, 4 more weeks.

But how many does she get?

Answer: 12, right?

12.

You could answer, 12.

Now let's think of the man.

Let's think of the man.

The man would like to look after the family, say, for 6 weeks.

And he gets sick 4 weeks.

How many weeks have we got?

Mr. Howard Jr.: --10.

Justice Stephen G. Breyer: 10.

Thank you.

[Laughter]

All right.

Mr. Howard Jr.: I like these questions.

Justice Stephen G. Breyer: Perfect.

So now the employer is sitting -- and it will work with other numbers.

I don't rely on those.

[Laughter]

But now look what happens.

Without this act, he's got a woman who is going to be out of there -- I mean, with the act -- unless we put in four -- unless we put in the fourth part of it, we have a woman who is gone for 12 weeks, and a man who is gone maybe for 6 but maybe for zero, okay?

Maybe for 6.

With the act, the woman is gone for 12, the man is gone for 10.

You see?

And so the comparison there -- and it will work with whatever numbers you want -- the comparison there is very different.

And the comparison doesn't, doesn't totally erase the problem with the woman, but it may reduce it to a size where the Act itself will no longer act as such a disincentive to hiring a woman.

Now, we have three different rationales.

All of them are related to a serious problem, which is the problem of discrimination against women because the employers think they will be home more, and so you see the conclusion I am drawing?

Yeah, okay.

So where are we?

Mr. Howard Jr.: Well, let me speak first to the second one, the concern about the gap.

The gap that is filled by the 12 weeks is, is a -- is to provide a substantive entitlement.

And when it permits a claim, a damages claim enforceable against the State treasury, it provides an entirely -- it requires a different justification than simply to fill a gap with the substantive entitlement.

If the--

Justice Ruth Bader Ginsburg: The idea is it's part of one package.

I think that's what Justice Breyer was getting at.

But just suppose that Congress wanted to improve conditions for the -- in the job market for women, which I think it's fair to say was the motivating force behind this act, and they also wanted to protect families so that sick children, sick spouses are attended to.

Now, what leave policy would say, okay, to do that we will have leave when a spouse is sick, a child is sick, a parent is sick, but not when the worker herself is sick?

Without -- it's all part of one package which is designed to increase job security for women and increase protection for their families.

So, I don't think you can slice off (D) from the other three.

Mr. Howard Jr.: --Justice Ginsburg, I think you can separate (D), on the same analysis that this Court applied in Tennessee v. Lane, in contrast to the Garrett case.

In Lane, of course, different sections of the same antidiscrimination act required different analysis, analyses and reference to different parts of the record.

There was a single over-arching purpose, to prevent discrimination against persons with disabilities, but the operation and effect of the particular claim requires a different analysis.

As Justice Stevens said, the Court's not required to evaluate statutes as an undifferentiated whole.

Justice Stephen G. Breyer: Well, it doesn't have to, of course.

But the whole point of the question that I was asking was, sure, what helps you by doing it separately is it helps your case.

But if we look at what Congress was trying to do, they were trying to do it as a whole.

That's my point that-I want you to answer.

And they are trying to do it as a whole because, no matter what numbers I use, if I look at it without (D) -- is it (D)?

Yeah, (D).

If I look at it without (D), the ratio will disfavor the woman.

And if I look at it with (D), suddenly the ratio from the point of view of the employer of the disadvantage of hiring a woman over -- over hiring a man, it goes way down.

And that helps women.

And that is why I think, reading this and listening, a major reason why they put in (D) as part of the other, because working with that 12-week limitation, and the whole rest of the statute, we now have a statute that doesn't defeat itself.

We now have a statute that actually can achieve the end of leading employers to not discriminate against women.

Not perfectly, but there's a big improvement.

And that's the -- that's the argument I'm making.

You have to read it as a whole to see that.

And that's what I -- I wonder if there's an answer to that.

Of course, I'm at the moment thinking there isn't an answer to it, but I ask the question because I want to hear what you say.

Mr. Howard Jr.: Well, with respect to the ratio, I think the premise of that point is that women will take more leave for serious health conditions than men.

And I don't think that's borne out.

And, you know, Mr. Foreman has recognized as much.

So I don't think the ratio really changes.

Justice Samuel Alito: Well, what if Congress had added three additional subsections here, and said that an employer has to provide 12 weeks of unpaid leave so that an employee can go to a health spa; 12 weeks of unpaid leave so that the employee can travel; 12 weeks of unpaid leave so that the employee can take an educational course.

Now, those could be taken advantage of by either men and women.

It makes both men and women increasingly unattractive as employees and therefore reduces any special disincentive that might have been created by (A), (B), and (C).

Now on that same logic, would those be -- would those be provisions that further the elimination of discrimination based on gender?

Mr. Howard Jr.: I think even if one accepted the premise, and we don't, that women take more leave for health conditions, that would further dilute the ratio, to have available all those types of leave.

Now, I thought, for example, one could imagine--

Justice Sonia Sotomayor: I thought Justice Alito was trying to help you.

Mr. Howard Jr.: --He was.

Justice Stephen G. Breyer: He's absolutely right.

And that's why this health spa thing, (D), this is -- in fact has two independent reasons that all -- the miscarriage reason and the Pregnancy Act reason, and so it isn't just saying go to a health spa.

But I mean, I don't want to put arguments in your mouth, which I just have, which you wouldn't like there anyway, because -- but I would appreciate your going on with this discussion in respect to what Justice Alito and I have been talking about, and I would be interested in what you say.

Justice Sonia Sotomayor: I'm working from a different proposition than you are in response to this question.

I don't think that the actual amount of time that men and women take is relevant.

The question is: What is the employer's perception, and did Congress have a valid basis, as Justice Kagan pointed out earlier, to believe that employers thought women took more time.

Mr. Howard Jr.: I, I think that if -- even if that were correct, and, and I don't think it is, because I think the overwhelming themes in the legislative record as a whole really were a concern for working families, whether single-income, double-income, and the concern that if a breadwinner falls ill the family's going to have severe financial insecurity.

And then there was also concern against discrimination against persons with illness.

But I think that one thing I would like to emphasize is that your suggestion, Justice Sotomayor, and really almost all of the discussion here today, I think explains why this is good social policy; we support it.

But I don't think that we have really gotten anywhere near the necessary predicate of unconstitutional State conduct when the constitutional right is defined with some precision.

And I think one has to define this right as, as disability.

And I think also the protections that the Pregnancy Discrimination Act already had in place, when added with the substantive -- to the substantive entitlement as a matter of Commerce Clause legislation, to this leave--

Justice Samuel Alito: Well, if the State of Maryland thinks this is good social policy, why is it asserting its sovereign immunity?

Mr. Howard Jr.: --Well, that's a good question, and I think we are here mainly on, we need to defend this on principle.

As, Justice Kennedy, you've pointed out in a number of your opinions, the exercise of the section 5 power alters the Federal-State--

Justice Samuel Alito: You can waive.

Can't you waive your Eleventh Amendment immunity?

Mr. Howard Jr.: --We could, I believe.

That's -- this Court--

Chief Justice John G. Roberts: Well, you can provide this, the kind of relief that's sought here without waiving your immunity, right?

It's a matter of legislation.

Mr. Howard Jr.: --Yes, I think that's right, and there--

Chief Justice John G. Roberts: Can I just get back to the discussion before about how (D) relates to the others?

Mr. Howard Jr.: --Yes.

Chief Justice John G. Roberts: Who do you think benefits most from subsection (E), men or women?

That's the one about armed services obligations at the time the law was passed?

Mr. Howard Jr.: I assume, and I haven't studied the history of that, but I assume that, just based on the demographics of -- of the military, it's like -- likely that there are more men in -- in service deployed, and that more women and wives benefit from that provision.

Justice Ruth Bader Ginsburg: Was that -- that wasn't part of the original act, was it?

Mr. Howard Jr.: No, it was not.

Justice Ruth Bader Ginsburg: So it was -- that was -- the concern was a discrete concern for veterans.

Mr. Howard Jr.: Yes.

And -- and we have not--

Justice Ruth Bader Ginsburg: It wasn't part of the package that was the Family and Medical Leave Act.

Mr. Howard Jr.: --No.

And we are not suggesting that.

We haven't raised that as a point in our briefs, or here today.

Justice Elena Kagan: And -- and Mr. Howard, I -- I do think that the point about the package is that if you look at (D) alone, you abstract it from everything else, you have a good point, that it seems to be related to economic security, which is not a section 5 issue; that it seems to be related to discrimination against sick people, which would also put us in a different legal universe.

But when you look at (D) as passed at the same moment on the basis of the same record as (A), (B), and (C), with the overwhelming purpose of Congress being to protect women from discrimination in the workplace because of unfair stereotypical gender -- views about what women do as workers, then (D) assumes a different kind of aura.

And you can talk about a-number of theories for that, but I guess I would just ask for your reaction to that, that (D) is just part of a package which was about telling employers, get rid of your old stereotypes, don't act on your old stereotypes, employ women.

Mr. Howard Jr.: Well, I -- I would respond in part -- and I'm going to accept your proposition that I should discuss these provisions as part of a single package -- but from the standpoint of States, subsection (D) provides a separate claim, a separate basis to sue States, and we think that claim is incongruent and disproportionate to any conceivable unconstitutional conduct that it might prohibit.

And I think this is borne out in the case law.

We surveyed the 40 Federal cases that we could find under subsection (D).

Only two involve pregnancy-related disabilities.

Only one of them alludes in passing to headaches arising from pregnancy along with other stress-related conditions.

But -- but all of the others really had to do with men and women benefiting from this leave for -- to care for a serious health condition.

So I would really emphasize, in response to your question, that one could look at it as a package, but from the standpoint of States it's a separate and independent claim and it's an extraordinarily broad one.

And it is not necessary, not simply because Pregnancy Discrimination Act claims are available, but, Justice Alito, there are Ex parte Young claims available.

In -- in response to your question, in this case at the joint appendix pages 3 to 12, the amended complaint reveals that injunctive relief was sought, albeit -- and on page 12 is the prayer for relief -- it's -- it's not clear whether that relief is sought under Title VII or FMLA or both.

But the reason why I don't think the claim fails separate and apart from any sovereign immunity argument, of course, Ex parte Young is not -- does not protect on that ground.

Justice Ruth Bader Ginsburg: There's some focus in the legislative history particularly on the -- the family that has a single parent -- much more often a woman, not a man -- and the devastating impact on that family of the woman getting sick, the sole breadwinner getting sick.

So that was certainly a -- a problem for families with -- with only one breadwinner.

And Congress was focusing on those women and wanting to have job security for them.

That wasn't the only group of women, but certainly that -- that affected this act as it came out, didn't it?

Mr. Howard Jr.: Yes.

There is discussion in the record of the disproportionate impact that you say.

But what -- what is left out -- well, it -- it is found in other parts of the record that -- the relevant--

Justice Antonin Scalia: The legislative record here?

Mr. Howard Jr.: --Yes.

The -- I'm sorry, yes.

The record of -- before Congress.

The relevant comparison, we think is not--

Justice Antonin Scalia: Is that a closed record?

Is that a closed record, the way a record of a case is?

Mr. Howard Jr.: --I -- I am not sure I understand the question.

Justice Antonin Scalia: I just find it a strange expression to talk about "in the record", when what you're talking about is the legislative history.

Mr. Howard Jr.: I misspoke.

I do mean the legislative history.

The -- the relevant comparison we think is not between single parent families who were predominantly women, but between working families where it could be two parents with a single income, man or woman.

It could be a family with two incomes but neither one can be lost.

So -- and in any event, I think we're talking now about a disproportionate impact, which -- which would not state an Equal Protection violation.

Justice Ruth Bader Ginsburg: But the question of how Congress would do it if they -- if they provided only for the woman who was the single head of the family, then that would be vulnerable under Equal Protection because they didn't provide it for men.

Mr. Howard Jr.: I think one would need to find, as this Court's cases have emphasized, a widespread pattern of unconstitutional conduct on -- in the part of States.

And I think the circumstances, Justice Ginsburg, that you've described, do not flow from unconstitutional State action.

They have their roots in other socioeconomic causes, so--

Justice Ruth Bader Ginsburg: But (D) is a remedy for the problem.

I think there's really not much disagreement about the problem, that there is gender discrimination in the job market.

Mr. Howard Jr.: --Yes.

Justice Ruth Bader Ginsburg: And then the question is how do we remedy that?

Mr. Howard Jr.: Well, I -- I don't think by providing the very sweeping remedy of (D), which -- I see that my light's on.

May I--

Chief Justice John G. Roberts: You can finish your sentence.

Mr. Howard Jr.: --We think that the remedy in (D) may cover the types of concerns you referred to, but I -- I would emphasize this is a disproportionate incongruent remedy.

It subjects States to far more suits for unrelated health conditions than the Eleventh Amendment should permit.

Thank you, Mr. Chief Justice.

Chief Justice John G. Roberts: Thank you, counsel.

Mr. Foreman, you have 4 minutes remaining.

REBUTTAL ARGUMENT OF MICHAEL L. FOREMAN ON BEHALF OF THE PETITIONER

Mr. Foreman: This is not responsive to disability-based discrimination.

The findings and the purpose of the Family and Medical Leave Act make it clear that it is responsive to gender-based discrimination.

Hibbs in fact found that the FMLA was in response to gender-based discrimination.

In making that finding, they did not differentiate between the different leave provisions.

And indeed, if you move to Tennessee v. Lane, where Justice Rehnquist dissented, drawing distinctions between disability-based discrimination and sex-based discrimination, stated that the task of identifying the constitutional right at issue in the Family and Medical Leave Act was "an easy one".

And that was his word, "easy".

It's responsive to gender-based discrimination.

Chief Justice Roberts, I think your question about the military leave portion of the FMLA illustrates that Congress -- what Congress was doing here when they added that almost 10 years later, they just -- did not simply try to pigeonhole it into -- this is section 5 legislation.

In the circuits at that time, there was considerable debate as to whether that could be justified as proper abrogation of immunity--

Chief Justice John G. Roberts: Do you think it would be--

Mr. Foreman: --I'm sorry.

Chief Justice John G. Roberts: --Do you think it would be -- how -- how would this case come out if we were dealing with -- with from subsection (E)?

Do you think that should be treated separately than the prior ones?

Mr. Foreman: Yes, it should, because it was passed pursuant to a different constitutional power, and they provided in fact a different remedy, recognizing that the Commerce Clause could not -- that Commerce Clause was the appropriate way to deal with this.

And they provided a right of action by the United States in order to provide damages.

Chief Justice John G. Roberts: If -- if we think that you should look at these provisions separately, where with respect to (D) -- and I'm looking at one of our prior precedents -- has Congress unequivocally declared its intent to abrogate sovereign immunity?

Mr. Foreman: As to--

Chief Justice John G. Roberts: --unequivocally.

Not on the basis of implications from -- from how the other provisions work.

But if you do look at (D), is there anyplace where Congress unequivocally declared its intent to abrogate State sovereign immunity?

Mr. Foreman: --Well, I -- I think it -- yes, Your Honor.

It's in -- they provide that the State is an employer for purposes of coverage of the Family and Medical Leave Act.

And if you go to 29 U.S.C. 2005, where it says a public entity is covered by the Family and Medical Leave Act, then -- that damages are available.

It specifically includes State.

In terms of my colleague's attempt to distance this case from Hibbs, in all due respect, we think that Hibbs did the heavy lifting here.

It is the same legislative purpose.

It is the same constitutional right.

It is the same statutory scheme.

Chief Justice John G. Roberts: Well, but your -- your -- the answer you gave to my request depends entirely on the conclusion that (D) is linked to (A), (B), and (C).

Because otherwise, you don't have the argument that it's precisely relief with respect to a discrimination under the Fourteenth Amendment.

Mr. Foreman: But you do, Your Honor.

And that's the -- that's the discussions we had earlier, that it's response to gender-based discrimination: Stereotypes of pregnant women will take leave.

And so we think they would stand alone.

But as the discussion today indicated, we think the appropriate way is to treat this as a comprehensive whole response to gender-based discrimination, and do as you did in Hibbs, find that it is a congruent proportional response to gender-based discrimination.

Thank you.

Chief Justice John G. Roberts: Thank you, counsel.

The case is submitted.

Print this transcript Transcript: 

Justice Ruth Bader Ginsburg: As we've just heard, Justices Breyer, Sotamayor, Kagan join me in dissenting from today's decision.

The entire Family and Medial Leave Act we would hold, including the self-care provision is a proper exercise of Congress' power under Section 5 of the Fourteenth Amendment.

The Act was designed to promote women's opportunities to live balanced lives at home having gainful employment.

A particular problem Congress faced was the disadvantageous treatment of women on pregnancy or childbirth requires them to take time away from work.

The best way to protect women against losing their jobs because of pregnancy or childbirth, Congress determine was not to order leaves for women only for that would deter employers from hiring them.

Instead, Congress adopted leave policies from which all could benefit.

The Act was a work-in-progress for some seven years.

In that time, Congress received evidence from individuals and organizations documenting pervasive discrimination against women based on pregnancy or the potential to become pregnant.

Congress also found that pregnant women were at risk of losing their jobs in the public sector just as they were in the private sector.

Maryland as defendant in this case noted a 1974 decision of this Court, Geduldig v. Aiello.

Footnote 20 of the Aiello opinion stated that discrimination on the basis of pregnancy is not discrimination on the basis of gender as such.

That is so, the Court reasoned because many non-pregnant persons are female.

Today's case is a fit occasion to revisit and reject the Court's reasoning in Aiello.

To say that a classification based on pregnancy is gender neutral, Justice Stevens later pointed out, makes no sense.

By definition he explained, disadvantageous treatment on the basis of pregnancy discriminates on account of sex for it is the capacity to become pregnant which primarily differentiates the female from the male.

As the Court chronicled nine years ago in Nevada Department of Human Resources v. Hibbs, a woman's childbearing capacity and attended myths about motherhood and women's lack of commitment to work underlie the historic and not yet banished discrimination against women in gainful employment.

I would hold that Aiello was egregiously wrong in wiping discrimination on the basis of pregnancy as something other than discrimination on the basis of sex.

The requisite congruence and proportionality, I would also hold, exists between the right to be free from pregnancy discrimination in the workplace and the self-care provision at issue in this case.

Congress, as I earlier observed, made claim its rationale for entitling all employees to take leave for a serious health condition rather than singling out pregnancy or childbirth.

Reluctance to hire or promote women, Congress comprehended, would attend the pregnancy only leave requirement, but self-care leave for all would ward off that effect for men take sick leave about as often as women do.

Self-care leave is a key part of Congress' endeavor to make it feasible for women to work and have families.

The FMLA as a whole and in all of its parts advances women's economic opportunities and supports a more egalitarian relationship at home and at work.

The inequality Congress sought to overcome seems to me well within the national legislature's authority to address.

The Court's judgment dilutes the force of the Act and that is regrettable, but at least the damage is contained.

The self-care provision remains valid Commerce Clause legislation and therefore applies undiluted in the private sector.

States remain bound by the self-care provision to this extent though private individuals may not recover damages when a state employer violates the self-care provision.

Injunctive relief against the responsible state official maybe possible and the Department of Labor has authority to sue a state employer for violating the self-care provision and to gain monetary relief for adversely affected employees.

Print this transcript Transcript: 

Justice Anthony Kennedy: The second case is Coleman versus Court of Appeals of Maryland, Number 10-1016.

This case is Coleman versus Court of Appeals of Maryland, the -- and this opinion announces the judgment of the Court.

The case concerns whether a state employee may recover damages from the State under a federal statute if the State does not offer that employee leave for self-care reasons as required by that federal statute.

Petitioner David Coleman requested sick leave from his employer, the Maryland Court of Appeals.

That entity is an instrumentality of the State of Maryland.

It denied his request.

Coleman then sued the State entity for violating the FMLA and that is the federal statute entitled the Family and Medical Leave Act of 1993.

As part of the FMLA, Congress required states to offer up to 12 weeks of leave for specific unremunerated reasons.

These reasons include among others the birth of a son or daughter, or to care for a sick family member or to care for one's self.

In the Nevada versus Hibbs, this Court held Congress had validly abrogated the States' immunity from suit for damages where the State does not permit an employee to take leave to care for a sick family member.

In this case the District Court and the Court of Appeals for the Fourth Circuit, in a holding consistent with every other Court of Appeals that have addressed this issue held that Congress had not abrogated the States' immunity from suits for damages where a State does not permit an employee to leave for self-care purposes.

Today we affirm that opinion.

Unlike the family leave policies at issue in Hibbs, there is no similar pattern of documented State discrimination in the administration of self-care or sick leave policies.

At the time of the FL -- FMLA's enactment over 96% of the states had sick leave policies.

There is little indication these policies granted women and men unequal amounts of leave whether these policies did not permit women to take leave for pregnancy-related illnesses, because the self-care provision did not respond to a well-documented pattern of constitutional violations on the part of the states and because the provision is not congruent and proportional to any identified pattern of constitutional violations, the self-care provision is not a valid abrogation of the States' immunity from suit for damages nor is there much to support petitioner's theory that the self-care provision is necessary to make the family-care provisions work.

That the provision offers some women a benefit does not sustain it.

Congress may not subject to suits the States, to suits for damages for a comprehensive regulatory scheme without demonstrating how the entire regulatory scheme is congruent and proportional to an identified pattern of constitutional violations.

The judgment of the Court of Appeals is affirmed.

Justice Thomas has filed a concurring opinion.

Justice Scalia has filed an opinion concurring in the judgment.

Justice Ginsburg has filed a dissenting opinion in which Justice Breyer, Sotamayor, and Kagan join.