Laro v. New Hampshire

United States Court of Appeals
For the First Circuit

No. 00-1581

STEPHEN LARO

Plaintiff, Appellant,

v.

STATE OF NEW HAMPSHIRE

Defendant, Appellee.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Steven J. McAuliffe, U.S. District Judge]

Before

Lynch, Circuit Judge,
Stahl, Senior Circuit Judge,
and Lipez, Circuit Judge.

Peter J. Smith, Attorney, Appellate Staff, Civil Division, U.S.
Department of Justice, with whom David W. Ogden, Acting Assistant
Attorney General, Paul M. Gagnon, U.S. Attorney, and Mark B. Stern,
Attorney, Appellate Staff, Civil Division, U.S. Department of Justice,
were on brief, for intervenor United States and appellant.

Andrew B. Livernois, with whom Philip T. McLaughlin, New
Hampshire Attorney General, was on brief, for appellee.
August 6, 2001
 LYNCH, Circuit Judge. This case requires us to address the

scope of congressional power under Section 5 of the Fourteenth

Amendment to abrogate the immunity of the states from suit in federal

court which the states would otherwise enjoy under the Eleventh

Amendment and Supreme Court precedent. At issue is whether the

creation of a private cause of action against a state for money damages

under the personal medical leave provision of the Family and Medical

Leave Act, 29 U.S.C. § 2612(a)(1)(D), validly abrogates that immunity

as an exercise of Congress's Section 5 powers.

Following the analytic framework suggested by two recent

Supreme Court decisions, Kimel v. Florida Board of Regents, 528 U.S.

62 (2000), and Board of Trustees of the University of Alabama v.

Garrett, 531 U.S. 356, 121 S. Ct. 955 (2001), we hold that the FMLA's

personal medical leave provision, 29 U.S.C. § 2612(a)(1)(D) (affording

leave for serious personal health conditions), insofar as it authorizes

private suits against states, does not validly abrogate the states'

immunity.1 Every circuit court which has addressed the personal medical

leave provision of the FMLA in this context has held that that

provision does not abrogate the immunity of the state as employer in

1 We express no opinion on the states' immunity from
a private cause of action under the other provisions of the
FMLA. We also note that the applicability of the personal
medical leave provision to private parties as a valid exercise
of Congress's Article I powers is not in question.

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the face of the Eleventh Amendment. Our holding is narrow: the present

legislative record does not demonstrate that the personal medical leave

provision of the FMLA is an appropriate response necessary to remedy or

prevent unconstitutional gender discrimination practiced by the states

as employers.

I.

Stephen Laro was employed by the State of New Hampshire as

a computer specialist for the New Hampshire Retirement System. In

early 1998, he had heart bypass surgery. Because of his medical

condition, following his surgery he requested and received leave under

the FMLA, which leave began on March 6, 1998. Laro's physician

provided the State with a certification which said that Laro's

condition required him to be out of work for at least eight weeks, or

until at least May 3, 1998. Apparently his employer understood that to

mean he requested leave only until that day. When he did not return to

work as of May 5, 1998, his employer inquired, and Laro explained that

his physician had not yet cleared him to return to work. On May 8,

1998, the State wrote to Laro, informing him that his FMLA leave would

expire as of May 29, 1998. Laro replied that he would not need any

more time than that, and on May 18, 1998, he provided his employer with

a letter from his physician authorizing his immediate return to work.

Laro's employer then told him that before returning to work he had to

meet with his supervisors, and asked him to schedule an appointment.

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At this time, Laro expected to return to work on Thursday, May 21,

before the expiration of the twelve week FMLA period. Instead, he was

given a termination letter, dated May 21, 1998, and setting an

effective termination date of May 29, 1998. The termination letter

stated that Laro had exhausted his accumulated leave balances and that

he was unable to meet the New Hampshire Retirement System’s attendance

requirements. Other than that statement there is no explanation in the

record for New Hampshire’s about-face on Laro’s ability to return to

work.

Laro sued for monetary damages in federal court, claiming

that the state had violated 29 U.S.C. § 2615 by terminating his

employment before the expiration of the twelve week period of unpaid

leave guaranteed under the FMLA. The state moved to dismiss, asserting

its immunity under the Eleventh Amendment. The district court agreed,

and dismissed the action. Laro now appeals, joined by the United

States as intervenor.

II.

The Eleventh Amendment provides that "[t]he Judicial

power of the United States shall not be construed to extend to

any suit in law or equity, commenced or prosecuted against one

of the United States by Citizens of another State, or by

Citizens or Subjects of any Foreign State." U.S. Const. amend.

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XI. Though limited by its express terms, the Amendment has been

construed broadly by the Supreme Court, such that its "ultimate

guarantee" is "that nonconsenting States may not be sued by

private individuals in federal court." Garrett, 531 U.S. at ---

, 121 S. Ct. at 962.

Congress may abrogate this Eleventh Amendment immunity

when it both "unequivocally intends to do so" and "act[s]

pursuant to a valid grant of constitutional authority." Id.

(citing Kimel, 528 U.S. at 73).2 Here, the State properly concedes

that Congress did intend to abrogate the states’ immunity. See 29

U.S.C. § 2617(a)(2) (extending private right of action for damages to

employees against "any employer (including a public agency)"); 29

U.S.C. § 2611(4)(A)(iii) (defining "employer" to include any "public

agency" and cross-referencing 29 U.S.C. § 203(x) (defining "public

agency" to include "the government of a State or political subdivision

thereof")). The question, then, is whether Congress, in subjecting the

states to suit in federal court for money damages under the personal

medical leave provision of the FMLA, acted appropriately pursuant to a

valid grant of constitutional authority.

2 States may also waive this immunity by consenting to
suit, but n o one argues here that New Hampshire consented to suit or
waived its immunity.

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 The Supreme Court has held that Congress may not

properly base its abrogation of Eleventh Amendment immunity upon

the powers enumerated in Article I. Garrett, 531 U.S. at ---,

121 S. Ct. at 962; Kimel, 528 U.S. at 79; Seminole Tribe of Fla.

v. Florida, 517 U.S. 44, 72-73 (1996). Where Congress acts

pursuant to a valid exercise of its power under Section 5 of the

Fourteenth Amendment, however, it may subject nonconsenting

states to suit in federal court. Garrett, 531 U.S. at ---, 121

S. Ct. at 962 ("[T]he Eleventh Amendment, and the principle of

state sovereignty which it embodies, are necessarily limited by

the enforcement provisions of § 5 of the Fourteenth Amendment.")

(quoting Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976));

Seminole Tribe, 517 U.S. at 59 ("[T]hrough the Fourteenth

Amendment, federal power extended to intrude upon the province

of the Eleventh Amendment and therefore [ ] § 5 of the

Fourteenth Amendment allowed Congress to abrogate the immunity

from suit guaranteed by that Amendment."). That is so because

the Fourteenth Amendment expressly empowers Congress to enforce

its provisions against the states. See Seminole Tribe, 517 U.S.

at 59 ("[T]he Fourteenth Amendment, by expanding federal power

at the expense of state autonomy, [ ] fundamentally altered the

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balance of state and federal power struck by the

Constitution."); Ex parte Virginia, 100 U.S. 339, 346 (1879)

("The prohibitions of the Fourteenth Amendment are directed to

the States, and they are to a degree restrictions of State

power. It is these which Congress is empowered to enforce, and

to enforce against State action . . . . Such enforcement is no

invasion of State sovereignty. No law can be, which the people

of the States have, by the Constitution of the United States,

empowered Congress to enact.").

Section 1 of the Fourteenth Amendment provides, in

relevant part:

No state shall make or enforce any law which shall
abridge the privileges or immunities of citizens of
the United States; nor shall any State deprive any
person of life, liberty, or property, without due
process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.

U.S. Const. amend. XIV. Section 5 of the Fourteenth Amendment

grants Congress the power to enforce the substantive guarantees

contained in Section 1 by enacting "appropriate legislation."3

Id. This provision embodies an affirmative grant of power to

3 Section 5 provides in full: "The Congress shall have
power to enforce, by appropriate legislation, the provisions of
this article." U.S. Const. amend. XIV.

-8-
Congress. See City of Boerne v. Flores, 521 U.S. 507, 517

(1997) ("All must acknowledge that § 5 is 'a positive grant of

legislative power' to Congress.") (quoting Katzenbach v. Morgan,

384 U.S. 641, 651 (1966)).

Section 5 of the Fourteenth Amendment, then, affords

Congress a broad remedial and prophylactic power to enact

legislation restricting state action, so long as the legislation

reflects a rational means, under the standard of McCulloch v.

Maryland, 17 U.S. (4 Wheat.) 316, 421 (1819), to realize the end

of enforcing the Fourteenth Amendment's substantive

prohibitions. See City of Boerne, 521 U.S. at 517-18 ("Whatever

legislation is appropriate, that is, adapted to carry out the

objects the amendments have in view, whatever tends to enforce

submission to the prohibitions they contain, and to secure to

all persons the enjoyment of perfect equality of civil rights

and the equal protection of the laws against State denial or

invasion, if not prohibited, is brought within the domain of

congressional power.") (quoting Ex parte Virginia, 100 U.S. at

345-46); Katzenbach v. Morgan, 384 U.S. at 650 ("By including §

5 the draftsmen sought to grant to Congress, by a specific

provision applicable to the Fourteenth Amendment, the same broad

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powers expressed in the Necessary and Proper Clause, Art. I, §

8, cl. 18."); id. at 651 ("[T]he McCulloch v. Maryland standard

is the measure of what constitutes 'appropriate legislation'

under § 5 of the Fourteenth Amendment."); see also South

Carolina v. Katzenbach, 383 U.S. 301, 324-27 (1966) (holding

that under the enforcement clause of the Fifteenth Amendment,

Congress may employ "any rational means to effectuate [its]

constitutional prohibitions," and citing the standard of

McCulloch v. Maryland as "[t]he basic test to be applied in a

case involving § 2 of the Fifteenth Amendment"); James Everard's

Breweries v. Day, 265 U.S. 545, 558-59 (1924) (legislation under

the enforcement clause of the Eighteenth Amendment assessed

under the standard of McCulloch v. Maryland). Indeed, by its

express terms, the Necessary and Proper Clause applies to

enumerated powers added to the Constitution after its adoption.

See U.S. Const. Art. I, § 8, cl. 18 (granting Congress the power

"[t]o make all Laws which shall be necessary and proper for

carrying into Execution the foregoing Powers, and all other

Powers vested by this Constitution in the Government of the

United States, or in any Department or Officer thereof")

(emphasis added).

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 The scope of Section 5 of the Fourteenth Amendment

enables Congress to do more than simply prohibit what the

Amendment itself already prohibits; Congress may enact

legislation which is rationally tailored to prevent or deter the

incidence of violations of the Amendment. See, e.g., Garrett,

531 U.S. at ---, 121 S. Ct. at 963 ("Congress is not limited to

mere legislative repetition of this Court's constitutional

jurisprudence."); Kimel, 528 U.S. at 81 ("Congress' § 5 power is

not confined to the enactment of legislation that merely parrots

the precise wording of the Fourteenth Amendment. Rather,

Congress' power 'to enforce' the Amendment includes the

authority both to remedy and to deter violation of rights

guaranteed thereunder by prohibiting a somewhat broader swath of

conduct, including that which is not itself forbidden by the

Amendment's text."); City of Boerne, 521 U.S. at 518

("Legislation which deters or remedies constitutional violations

can fall within the sweep of Congress' enforcement power even if

in the process it prohibits conduct which is not itself

unconstitutional and intrudes into 'legislative spheres of

autonomy previously reserved to the States.'") (quoting

Fitzpatrick, 427 U.S. at 455).

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 Indeed, the enforcement clause delegates to Congress

in the first instance the responsibility to determine what

prophylactic measures are necessary to enforce most effectively

the Amendment's substantive provisions. See, e.g., City of

Boerne, 521 U.S. at 536 ("It is for Congress in the first

instance to 'determin[e] whether and what legislation is needed

to secure the guarantees of the Fourteenth Amendment,' and its

conclusions are entitled to much deference.") (quoting

Katzenbach v. Morgan, 384 U.S. at 651); Katzenbach v. Morgan,

384 U.S. at 648 ("It is the power of Congress which has been

enlarged. Congress is authorized to enforce the prohibitions by

appropriate legislation. Some legislation is contemplated to

make the amendments fully effective.") (quoting Ex parte

Virginia, 100 U.S. at 345); see also South Carolina v.

Katzenbach, 383 U.S. at 326 (enforcement clause of the Fifteenth

Amendment indicates that Congress was to be "chiefly responsible

for implementing" the rights created in the Amendment).

Because the Fourteenth Amendment affords this role to

Congress, courts consider congressional conclusions with

considerable deference. See, e.g., Katzenbach v. Morgan, 384

U.S. at 653 ("It was for Congress . . . to assess and weigh the

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various conflicting considerations . . . . It is not for us to

review the congressional resolution of these factors. It is

enough that we be able to perceive a basis upon which the

Congress might resolve the conflict as it did."); James

Everard's Breweries, 265 U.S. at 560 ("In enacting [enforcement]

legislation, Congress has affirmed its validity. That

determination must be given great weight; this Court by an

unbroken line of decisions having steadily adhered to the rule

that every possible presumption is in favor of the validity of

an act of Congress until overcome beyond rational doubt.")

(internal quotation marks omitted).

Nevertheless, this congressional power is not without

limits; congressional power under Section 5 "is but a limited

authority [ ] extending only to a single class of cases," though

within those limits it is "complete." Ex parte Virginia, 100

U.S. at 348; see also City of Boerne, 521 U.S. at 518 ("[A]s

broad as the congressional enforcement power is, it is not

unlimited.") (quoting Oregon v. Mitchell, 400 U.S. 112, 128

(1970) (opinion of Black, J.)). The limits are those

"prescribed" in the Constitution itself. See Gibbons v. Ogden,

22 U.S. (9 Wheat.) 1, 196 (1824). That is, the ends of

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appropriate enforcement legislation under Section 5 must be the

enforcement of the substantive guarantees of the Fourteenth

Amendment. See Kimel, 528 U.S. at 81 (the language of Section

5 limits congressional power to enacting that legislation

appropriate "to enforce" the provisions of the Amendment);

accord City of Boerne, 521 U.S. at 519.

Consequently, despite Congress's initial responsibility

to gauge appropriate enforcement legislation, federal courts

retain the power to review that legislation to ensure that it

pursues appropriate ends. See City of Boerne, 521 U.S. at 536

("[T]he courts retain the power . . . to determine if Congress

has exceeded its authority under the Constitution."); see also

James Everard's Breweries, 265 U.S. at 559 ("What [the Court]

may consider is whether that which has been done by Congress has

gone beyond the constitutional limits upon its legislative

discretion."). The unconstitutional exercise of enforcement

powers occurs where Congress attacks "evils" not comprehended by

the amendments. See South Carolina v. Katzenbach, 383 U.S. at

326-27.

Two recent Supreme Court cases present a framework for

assessing whether legislation enacted under Section 5 falls

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within appropriate bounds in the face of a claim of Eleventh

Amendment immunity. See Garrett, 531 U.S. 356, 121 S. Ct. 955;

Kimel, 528 U.S. 62. The first step of this Eleventh Amendment

analysis requires the court to identify the precise scope of the

constitutional right at issue, including as it is reflected in the

degree of judicial scrutiny afforded the state statute or action. See,

e.g., Garrett, 531 U.S. at ---, 121 S. Ct. at 963 ("The first

step in applying these now familiar principles is to identify

with some precision the scope of the constitutional right at

issue."). Whether the legislation is prophylactic or remedial, the

court must then examine whether the legislative means adopted by

Congress have a congruence and proportionality to the constitutional

injury to be prevented or remedied.4 See, e.g., Kimel, 528 U.S. at

4 In deciding whether legislation is congruent to a
constitutional violation, the Court has typically looked to the
legislative record to determine if Congress has identified a
history and pattern of unconstitutional state action, see
Garrett, 531 U.S. at ---, 121 S. Ct. at 964-67; Kimel, 528 U.S.
at 90-91; Florida Prepaid Educ. Expense Bd. v. College Savings
Bank, 527 U.S. 627, 640 (1999), although it has suggested that
such an inquiry may not be required where the constitutional
wrong is otherwise evident, cf. Florida Prepaid, 527 U.S. at 646
("Though lack of support in the legislative record is not
determinative, identifying the targeted constitutional wrong or
evil is still a critical part of our § 5 calculus.") (citations
omitted); accord City of Boerne, 521 U.S. at 530-31; see also
Kimel, 528 U.S. at 91. Because we do not consider subsection
(D), the FMLA provision at issue here, to be a matter where the

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81 ("[R]ecognizing that 'Congress must have wide latitude in

determining where [the line between measures that remedy or

prevent unconstitutional actions and measures that make a

substantive change in governing law] lies,' we [have] held that

'[t]here must be a congruence and proportionality between the

injury to be prevented or remedied and the means adopted to that

end.'") (quoting City of Boerne, 521 U.S. at 520). We turn to

applying this framework to the FMLA.

III.

The Family and Medical Leave Act of 1993, 29 U.S.C. § 2601

et seq., entitles eligible employees to twelve workweeks of unpaid

leave per year in four specified situations: (1) the birth of a child,

(2) the adoption of a child or placement of a foster child, (3) the

targeted constitutional wrong is self-evident, we also look to
the legislative record. Given this result, we need not reach
the question of whether, as some of the language in Garrett
suggests, the Court now considers such legislative history to be
more generally required than Kimel and City of Boerne suggest.
See Garrett, 531 U.S. at ---, 121 S. Ct. at 967-68 ("[I]n order
to authorize private individuals to recover money damages
against the States, there must be a pattern of discrimination by
the States which violates the Fourteenth Amendment, and the
remedy imposed by Congress must be congruent and proportional to
the targeted violation."); id. at 969 (Kennedy, J., concurring)
("The predicate for money damages against an unconsenting State
in suits brought by private persons must be a federal statute
enacted upon the documentation of patterns of constitutional
violations committed by the State in its official capacity.").

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need to care for a parent, child, or spouse with a serious health

condition, and (4) the inability to work due to the employee’s own

serious health condition. 29 U.S.C. § 2612(a)(1).5 The only issue

before us in this case concerns the availability of private damages

actions against states under the final provision, 29 U.S.C. §

2612(a)(1)(D), which affords an employee the right to unpaid leave for

inability to work due to his or her own serious health condition.6

5 29 U.S.C. § 2612(a)(1), titled "Entitlement to leave,"
provides:
Subject to [29 U.S.C. § 2613], an eligible employee
shall be entitled to a total of 12 workweeks of leave
during any 12-month period for one or more of the
following:
(A) Because of the birth of a son or daughter of the
employee and in order to care for such son or daughter.
(B) Because of the placement of a son or daughter with
the employee for adoption or foster care.
(C) In order to care for the spouse, or a son,
daughter, or parent, of the employee, if such spouse, son,
daughter, or parent has a serious health condition.
(D) Because of a serious health condition that makes
the employee unable to perform the functions of the
position of such employee.
6 The State, Laro, and the intervenor United States all argue
that the entire FMLA is at issue. We disagree. The constitutional
arguments in support of the remaining provisions have greater strength
and raise issues (for instance, their implications for family roles)
not at stake here. Those other provisions are not tested by this case.
Assessing the provisions separately is not unprecedented, see,
e.g., Kazmier v. Widmann, 225 F.3d 519, 525 (5th Cir. 2000) ("[W]e
discern no reason why the provisions of one of the FMLA's subsections
could not validly abrogate the States' Eleventh Amendment immunity even
if the provisions of some or all of the remaining subsections fail to
do so."), and may be important where, as here, separate

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 The first step in assessing the validity of this personal

medical leave provision as appropriate enforcement legislation under

Section 5 in the face of Eleventh Amendment immunity is to determine

the substantive guarantee of the Fourteenth Amendment it is designed to

protect. The FMLA was explicitly enacted in part pursuant to

congressional power under Section 5 of the Fourteenth Amendment to

address gender-based discrimination (as well as disability-based

discrimination), in addition to Congress's Article I, Section 8 powers

under the Commerce Clause.

The findings section of the statute provides, in pertinent

part:

(5) due 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; and
(6) employment standards that apply to one gender only have
serious potential for encouraging employers to discriminate
against employees and applicants for employment who are of
that gender.

29 U.S.C. § 2601(a)(5)-(6). Therefore, the statute provides that it is

the purpose of the Act:

provisions of the same act embody differing remedial purposes.
Moreover, the Supreme Court has suggested that different
provisions of the same act might fare differently under this
Eleventh Amendment analysis, in that it declined to address
claims arising under Title II of the ADA in Garrett. See 531
U.S. at ---, 121 S. Ct. at 960 n.1.

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 (4) to accomplish [the statutory goals] 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; and
(5) to promote the goal of equal employment opportunity for
women and men, pursuant to such clause.

29 U.S.C. § 2601(b)(4)-(5).

The question, then, is whether the personal medical leave

provision of the FMLA appropriately enforces the Fourteenth Amendment's

guarantee against gender-based discrimination by the states. The scope

of constitutional protection against gender-based discrimination under

the Fourteenth Amendment is broader than that against mere arbitrary

classifications. Where gender-based discrimination is at issue, a

state must justify its discrimination by a showing of considerably more

than mere rationality. See, e.g., United States v. Morrison, 529 U.S.

598, 620 (2000). Gender-based discrimination violates equal protection

unless it "serves important governmental objectives and . . . the

discriminatory means employed are substantially related to the

achievement of those objectives." United States v. Virginia, 518 U.S.

515, 533 (1996) (internal quotation marks omitted).

The personal medical leave provision of the FMLA at issue

does not directly address gender discrimination on its face, but may

serve a prophylactic function to prevent or deter unconstitutional

state actions. Cf. Hundertmark v. Florida Dep't of Transp., 205

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F.3d 1272, 1276 (11th Cir. 2000) (Equal Pay Act facially targets

gender discrimination and therefore validly abrogates the states'

Eleventh Amendment immunity under Section 5). The issue, then, for

Eleventh Amendment purposes, is whether there is "congruence and

proportionality" between "the potential for employment discrimination

on the basis of sex" by a state and the FMLA’s provision of twelve-

weeks leave to employees because of their own personal health problems.

We look only to the gender- based discrimination concerns of Congress.7

The Supreme Court has not recently addressed the issue of

congressional power to override a state's Eleventh Amendment immunity

through legislation designed to prevent unconstitutional gender-based

7 It is plain that, under Garrett, there is no congruence between
the personal medical leave provision and congressional authority to
abrogate Eleventh Amendment immunity in addressing disability
discrimination under Section 5. Garrett held that the needed
congruence in order to subject the state to a private damages action
for disability discrimination was lacking in the Americans with
Disabilities Act. See Garrett, 531 U.S. at ---, 121 S. Ct. at 966-67.
If a direct connection to disability discrimination was insufficient in
Garrett, then the indirect connection in the FMLA between disability
discrimination and inability to work due to serious health problems is
surely insufficient to establish congruence, at least on the current
legislative record. The United States concedes this point in its
brief.

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discrimination in employment.8 But see Fitzpatrick v. Bitzer, 427 U.S.

445, 455 (1974). Rather, the two employment statutes it has considered

in this context address categories of discrimination -- age

discrimination in Kimel and disability discrimination in Garrett --

where the courts impose a lesser burden on a state to justify

discriminatory practices. See Kimel, 528 U.S. at 83-84; Garrett,

531 U.S. at ---, 121 S. Ct. at 963-64. Even with the heightened

standard of review for gender-based discrimination, however, we do not

find that the legislative history sufficiently ties the FMLA's personal

medical leave provision to the prevention of gender-based

discrimination by the states to survive Eleventh Amendment scrutiny.

In the absence of such history, we must affirm.

Defending the personal medical leave provision within the

context of the entire Act, Laro and the intervenor United States argue

that the FMLA as a whole was motivated to prevent gender discrimination

against both men and women, relying upon the following rationale.

First, they say, the Act prevents discrimination against men; without

8 The Supreme Court did consider a gender-based justification
for legislation under Section 5 in United States v. Morrison, supra,
assessing the private suit provisions of the Violence Against Women
Act. In that case the Court concluded that the provisions of VAWA at
issue went beyond Congress's Section 5 powers on the ground that the
provisions did not act to prevent unconstitutional state action,
instead targeting private behavior. 529 U.S. at 626. Since the
Court found that VAWA did not target state action, it did not
address the Eleventh Amendment analysis pursued in Kimel and
Garrett.

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the Act's protection, men might be deprived of leave opportunities and

thereby denied the opportunity to take equal responsibility for their

families. In turn, the absence of leave opportunities for men, they

say, serves to reinforce general stereotypes that women are the proper

caregivers, both for children and for other family members, and thereby

forces women back into those stereotypical roles. Such stereotypes, so

reinforced, deter employers from hiring women or promoting them to

positions of equal responsibility vis-a-vis men. The existence of such

a reinforcing dynamic was demonstrated, they say, by experience with

respect to state law maternity provisions: when maternity leave for

women was mandated by state law, employers reacted by refusing to hire

or promote women. Thus, legislation that solely protected women in an

effort to eliminate discrimination perversely gave employers an

economic incentive to discriminate against women. For these reasons,

they say, the FMLA insists on gender-neutral leave provisions. For

present purposes we accept all of that to be true.

In defending the personal medical leave provision of the FMLA

as validly abrogating the states' Eleventh Amendment immunity on this

rationale, however, Laro and the United States must demonstrate how

this particular provision contributes to the broader purposes they

attribute to the Act as a whole. In doing so, the problems for Laro

and the United States are two-fold. First, in order for this

particular provision to validly abrogate a state's Eleventh Amendment

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immunity, it must be linked through some nexus not just to such gender-

based problems in society at large, but specifically to

unconstitutional gender discrimination by states in their capacity as

employers. Second, establishing this connection is particularly

difficult for the personal medical leave provision at issue, which, on

its face, only bears on these concerns indirectly (likely this is why

the plaintiff sought to tie his case to the other provisions of the

FMLA). The argument that this provision validly abrogates New

Hampshire's Eleventh Amendment immunity founders on this lack of

congruence between the personal medical leave provision at issue here

and the prevention of gender-based discrimination by states as

employers, because Congress has not found the states to have engaged in

the specific gender-based discriminatory practices this provision was

designed to prevent.

One rationale advanced to defend the provisions -- that they

serve to counteract gender stereotyping on family roles -- is misplaced

as to the personal medical leave provision at issue in this case. The

argument is not without sense. It proceeds as follows: employers

perceive that the primary responsibility for caretaking of family

members in our society tends to fall on women; therefore, they presume

women will inevitably need to take leave for such caretaking, and hence

will either be less likely to hire women, or else will afford such

leave to women but not to men, thus reinforcing gender roles.

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Therefore, the argument concludes, Congress might reasonably seek to

break the cycle of stereotyping and discrimination by requiring gender-

neutral leave policies for family care. This may all be true, but this

argument does not go to the need for a personal medical leave

provision. Rather, it provides a rationale for the parental and

family-care leave provisions found in the first three subsections of

the FMLA, which are not at issue in this case.

Attention to the legislative history reveals that Congress's

primary motivation for including the personal medical leave provision

contained in subsection (D) was to protect families from the economic

dislocation caused by a family member losing his or her job due to a

serious medical problem. See S. Rep. No. 103-3, at 11 (1993),

reprinted in 1993 U.S.C.C.A.N. 3, 13-14 ("The fundamental rationale

for [a personal medical leave] policy is that it is unfair for an

employee to be terminated when he or she is struck with a serious

illness and is not capable of working. Job loss because of illness has

a particularly devastating effect on workers who support themselves and

on families where two incomes are necessary to make ends meet or where

a single parent heads the household."); id. at 12 (example of Frances

Wright); see also H.R. Rep. No. 101-28(I), at 23 (1990) ("The temporary

medical leave requirement is intended to provide basic, humane

protection to the family unit when it is most in need of help. It will

also help reduce the societal cost born by government and private

-24-
charity."). This concern clearly goes to Congress's power under the

Commerce Clause and not Section 5.

A secondary motivation that appears in the legislative

history is a concern to protect workers who were temporarily disabled

by serious health problems from discrimination on account of their

medical condition. See S. Rep. No. 103-3, at 12 (citing testimony of

Ms. Barbara Hoffman, Vice President of the National Coalition for

Cancer Survivorship, stating that a quarter of all cancer survivors

face "some form of employment discrimination" and that "such

discrimination against qualified employees costs society millions of

dollars in lost wages, lost productivity and needless disabilities

payments"); H.R. Rep. 101-28(I), at 23 ("[A] worker who has lost a job

due to a serious health condition often faces future discrimination in

finding a job which has even more devastating consequences for the

worker and his or her family."); see also Kazmier v. Widmann, 225 F.3d

519, 527 n.31 (5th Cir. 2000). Garrett has effectively disposed of

that disability rationale as sufficient basis to overcome Eleventh

Amendment immunity.

Nevertheless, the United States and Laro contend that the

prevention of gender-based discrimination also motivated Congress in

enacting the personal medical leave provision of the FMLA, and hence

that provision does validly abrogate the states' Eleventh Amendment

immunity. They suggest that the provision counters gender-based

-25-
discrimination in two respects: first, it prevents discrimination

directly on the basis of pregnancy; and, second, it undermines

incentives to discriminate against women indirectly on the basis of

stereotypes about women due to pregnancy.9 These claims are not

irrational. Nonetheless, where the connection between the provision at

issue and gender-based discrimination is indirect at best, it is

incumbent on Congress either to establish a clear link to the

prevention of unconstitutional gender discrimination or to identify

problematic state practices to which the provision responds. Here

there is no indication that Congress found such a problem on the part

of states as employers.

9 A third way in which the personal medical leave
provision might possibly be justified as responding to a threat
of unconstitutional gender discrimination is that it serves to
eliminate the risk of discriminatory treatment of men in leave
policies. While the legislative record suggests that men may
have been treated in a discriminatory fashion with respect to
parental leave, see, e.g., S. Rep. No. 103-3, at 14-15
(discussing studies by the Bureau of Labor Statistics
highlighting the discrepancy between the availability of
maternity and paternity leave), and perhaps leave to care for
family members, there is no suggestion that men were
disadvantaged in personal medical leave policies, nor, in
particular, is there any reason to think from the legislative
record that states as employers disadvantaged men in offering
medical leave in a way that could be considered discriminatory.
Indeed, men are protected from inequitable leave policies
offered by either private or public employers in any case by
Title VII's prohibition of discrimination in employment on the
basis of sex.

-26-
 The United States and Laro advance the following argument,

attempting to connect the personal medical leave provision to the need

to combat gender discrimination on the part of state employers.

Employers might assume that women will require greater accommodation at

work as a result of pregnancy-related disability, and therefore be more

reluctant to hire women or place them in positions of equal

responsibility. The personal medical leave provision, they say, by

affording medical leave for any "serious health condition," mitigates

this incentive to discriminate because it places men and women on equal

footing with respect to medical leave. See S. Rep. No. 102-68, at 35

(1991) ("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."). There is no showing, however, that establishes any

nexus between gender-neutral medical leave for one's own health

conditions and the prevention of discrimination on the basis of gender

on the part of states as employers.

We understand the problem in these terms. In 1976, the

Supreme Court held that discrimination on the basis of pregnancy was

not gender-based discrimination within the meaning of Title VII. See

-27-
General Elec. Co. v. Gilbert, 429 U.S. 125 (1976).10 Congress reacted

to this decision, amending the definition section of Title VII such

that its prohibition of discrimination on the basis of sex encompassed

pregnancy discrimination. See Pregnancy Discrimination Act, Pub. L.

No. 95-555, 92 Stat. 2076, 42 U.S.C. § 2000e(k); see also Newport News

Shipbuilding and Dry Dock Co. v. EEOC, 462 U.S. 669, 676 (1983).

Congress's conclusion that gender and pregnancy were sufficiently

related that barring pregnancy discrimination served the end of

preventing gender-based discrimination was quite rational; indeed, as

the Supreme Court recently suggested, the potential for pregnancy is

one immutable characteristic which distinguishes men from women and

consequently has definite real life consequences. See Nguyen v. INS,

531 U.S. ---, 121 S. Ct. 2053, 2061 (2001). In enacting the PDA,

Congress was expressly concerned with the issues of gender-based

discrimination now advanced in defense of subsection (D) of the FMLA.

See H.R. Rep. No. 95-948, at 6-7 (1978) ("[T]he consequences of [ ]

discriminatory employment policies on pregnant women and women in

general has historically had a persistent and harmful effect upon their

careers. Women are still subject to the stereotype that all women are

marginal workers. Until a woman passes the child-bearing age, she is

10 The Supreme Court had earlier held that cost-justified
discrimination on the basis of pregnancy was not
unconstitutional gender discrimination under the Fourteenth
Amendment. See Geduldig v. Aiello, 417 U.S. 484 (1974).

-28-
viewed by employers as potentially pregnant. Therefore, the

elimination of discrimination based on pregnancy in these employment

practices in addition to disability and medical benefits will go a long

way toward providing equal employment opportunities for women . . .

.").

The PDA affected gender discrimination law in two respects:

(1) women can no longer be treated differently in employment because of

pregnancy, childbirth, or related medical conditions (or stereotypes

about the same); and (2) if an employer chooses to offer benefit

programs, then those programs must cover pregnancy, childbirth, and

related medical conditions. Medical insurance and leave policies, if

offered to employees, have to cover pregnancy. Thus the PDA itself

operates to accomplish much of what is now offered as the gender-based

rationale for subsection (D) of the FMLA, since it mandates equivalent

treatment of all temporarily disabled workers, including those disabled

because of pregnancy-related conditions. Indeed, to the extent that

states provide leave to male employees for temporary medical

conditions that render them incapable of working, but do not provide

similar leave to women who are pregnant (or vice versa), Title VII as

amended by the PDA affords a federal right to relief.

The PDA did leave a gap in its coverage: those employers who

did not offer benefit packages for leave at all. The FMLA closes this

-29-
gap in coverage by requiring medical leave for pregnancy.11 But there

is nothing in the legislative history which indicates the states posed

this "gap" problem. Indeed, the only direct evidence regarding the

actual leave policies of public sector employees in the

legislative record suggests that state employers did not fall

into the "gap" left by the PDA. See The Family and Medical

Leave Act of 1989: Hearings on H.R. 770 Before the Subcomm. on

Labor-Management Relations of the Comm. of Educ. and Labor,

101st Cong. 45, 51 (testimony of Gerald McEntee, President of

the American Federation of State, County, and Municipal

Employees, stating that the union had successfully negotiated

leave policies for a vast number of its members with public

sector employers).

The argument for subsection (D) is that, at least in theory,

these two requirements created a new problem: while the issue of

discrimination against pregnant women was solved by mandatory pregnancy

leave, this solution had the effect of imposing the costs of these

leaves on employers; this led to the concern that these costs would

induce employers to respond by not hiring women who had the potential

11 In the FMLA legislative history, Congress discussed the
gap left by the PDA with respect to employers who denied
benefits to all workers. See H.R. Rep. No. 103-8(II), at 11
(1993).

-30-
to be pregnant. This new problem, the argument goes, would be solved

by requiring medical leave for all employees with serious medical

problems, as subsection (D) of the FMLA does. The larger concept that

special treatment of one gender can lead to discrimination is reflected

in the testimony before the Senate that legislation which provides job

protection only for pregnancy related discrimination created the risk

of discrimination against pregnant women. See S. Rep. No. 102-68, at

35 (1991). The argument is made that employers, despite the PDA and

despite the nondiscrimination in hiring provisions of Title VII, would

not hire women who could become pregnant and take leave because they

could be more costly.12 As to assessing whether the states as employers

posed such risks,13 even in light of the requirements of the PDA and

12 That risk would seem to be greatest, at least in theory,
among employers who had escaped the PDA's leave requirements (because
they offered no leave to anyone) but who were now caught by the FMLA's
requirement giving pregnancy leave. But as we noted before, there is
no evidence in the legislative record that the states present a "gap"
problem.

13 There are variations on the argument that neutral leave
provisions run the risk of creating incentives to discriminate.
One variant (though not raised directly by Laro or the United
States) distinguishes between concern for women as potential
takers of pregnancy leave and concern for women as likely takers
of leave for family caretaking. The contention begins with a
fear that employers will be less likely to hire or promote women
because they believe that women will be more likely than men to
take advantage of the family leave provisions in 29 U.S.C. §
2612(a)(1)(B) and (C). The fact that both men and women are
entitled to family leave, thus achieving desired neutrality,
only solves part of the problem, the argument goes. Either

-31-
Title VII, we think the Eleventh Amendment requires greater information

from Congress as to whether such a risk is real.

Only two references in the legislative history are relied on

to link such discrimination to actual state practices. The first

concerns a general statement made twice at a congressional hearing

asserting that public sector leave policies do not vary much from

private sector policies. See The Parental and Medical Leave Act of

1986: Hearings on H.R. 4300 Before the Subcomm. on Labor-Management

Relations and the Subcomm. on Labor Standards of the Comm. on Educ. and

Labor, 99th Cong. 30; id. at 147. Perhaps this is so, but it is

insufficiently informative as to what the flaws were in the states'

practices for Eleventh Amendment purposes. The second piece of

information relied upon is an attachment to a House Committee Report,

because of stereotypes or because women actually take leave for
family caretaking more often, the claim is, these provisions of
the FMLA (by increasing the projected costs of women employees)
create new incentives not to hire or promote women. Those
incentives are powerful enough, the argument proceeds, to
override the incentives not to discriminate provided by Title
VII and the PDA. In consequence, according to this theory, the
number of men taking leave must be increased through the
creation of the personal medical leave provision in subsection
(D). This undercuts any presumption that women will be more
likely to take leave than men.
This theory as to the effects of the new family leave
provisions on the future behavior of employers does not appear
to be what concerned Congress in enacting the personal medical
leave provision, however. Certainly Congress never made any
findings to this effect with regard to states as employers.
Without more, this theory does not suffice.

-32-
which simply indicates that 28 of the 50 states had not enacted state

laws requiring family and medical leaves in the private sector. See

H.R. Rep. No. 103-8(I), Attachment B (1993). This tells us little, if

anything, about whether the states themselves had not hired women

because of the risk of having the costs of pregnancy leave imposed on

them, thus indicating a need for personal medical leave for all under

the FMLA subsection (D) in order to avoid creating disincentives to

hire women. It may be that such a problem exists, but Congress did not

find that to be so. If it had, we would have a different case before

us.

In order to validly abrogate the states' Eleventh Amendment

immunity, enforcement legislation must have a congruence to the

constitutional evil to be prevented. Here, there is no identified link

between this particular provision and any pattern of discriminatory

stereotyping on the part of states as employers. On this record, the

personal medical leave provision of the FMLA does not exhibit a

sufficient congruence to the prevention of unconstitutional state

discrimination to validly abrogate the states' Eleventh Amendment

immunity. Without more, then, these legislative responses are out of

proportion to the preventive objective as to states as employers and

cannot be understood to be designed to prevent unconstitutional

-33-
behavior.14 Cf. City of Boerne, 521 U.S. at 520 (requiring

congruence and proportionality). But see Kazmier v. Widmann, 225

F.3d 519, 533 (5th Cir. 2000) (Dennis, J. dissenting); Garrett v.

University of Ala. Bd. of Trustees, 193 F.3d 1214, 1220 (11th Cir.

1999) (subsequent history omitted) (Cook, J., concurring in part and

dissenting in part).

To summarize, the personal medical leave provision of the

FMLA, § 2612(a)(1)(D), on its face has no direct connection to

preventing unconstitutional gender discrimination by state employers.

Cf. Hundertmark, 205 F.3d at 1276. The arguments advanced to

connect that particular provision to preventing gender discrimination

by states as employers are too attenuated, in the absence of a stronger

legislative record, to allow Congress to abrogate a state's Eleventh

Amendment immunity under the auspices of Section 5. Accordingly, we

affirm the dismissal of Laro’s complaint. The result we reach is

consistent with that of every circuit that has addressed the issue with

regard to 29 U.S.C. § 2612(a)(1)(D) of the FMLA. See Lizzi v.

Alexander, --- F.3d ---, 2001 WL 694506 (4th Cir. June 20, 2001);

Chittister v. Department of Cmty. and Econ. Dev., 226 F.3d 223 (3rd

14 We pause to reject an argument made by the State. The State
suggests that only intentional acts of discrimination may ever be
reached by a federal statute under the enforcement clause. We do not
read the Eleventh Amendment jurisprudence that way, and the argument
contravenes the rule that Congress is free under Section 5 to act
prophylactically as well as remedially. E.g., Kimel, 528 U.S. at 81.

-34-
Cir. 2000); Townsel v. Missouri, 233 F.3d 1094 (8th Cir. 2000);

Kazmier, 225 F.3d at 527-29; Sims v. University of Cincinnati, 219 F.3d

559, 566 (6th Cir. 2000); Hale v. Mann, 219 F.3d 61, 69 (2d Cir. 2000);

Garrett v. University of Ala. Bd. of Trustees, 193 F.3d at 1219.

While we hold that the personal medical leave provision of

the FMLA does not validly abrogate the Eleventh Amendment immunity of

the states as employers from private damages actions, other remedies

remain. As was the case in Garrett, see 531 U.S. at ---, 121 S. Ct. at

968 n.9, the United States may choose to pursue its own actions against

New Hampshire (or other states violating the provisions) to enforce the

FMLA and recover damages. See 29 U.S.C. § 2617(b)(2) (empowering the

Secretary of Labor to bring civil actions to recover damages for

violations of the FMLA). Private parties may also enforce the

substantive requirements of the provision against states through

injunctive actions against state officials rather than through suits

for money damages. See, e.g., Garrett, 531 U.S. at ---, 121 S. Ct. at

968 n.9. Similarly, New Hampshire may voluntarily choose to provide

for state employees the same privately enforceable right to FMLA

personal medical leave enjoyed by most private sector employees (and

many state employees, under state law), either by consenting to suit in

federal court or providing an enforceable state remedy. But on this

legislative record, Congress does not have the power to empower a

federal court to force New Hampshire to pay damages to an employee for

-35-
failing to provide such leave through a private enforcement action if

the state has not consented or waived its immunity.

Affirmed. Each party to bear its own costs.

Dissent follows.

-36-
 LIPEZ, Circuit Judge, dissenting. The majority opinion is

a carefully reasoned and narrowly drawn analysis of the Eleventh

Amendment issue raised by the application in this case of the personal

medical leave provision of the FMLA, 29 U.S.C. § 2612(a)(1)(D). It

reflects the view that the legislative record invoked by Laro and the

intervenor United States in support of that provision is an inadequate

basis for the abrogation of state sovereign immunity in light of the

Supreme Court decisions in Kimel v. Fla. Bd. of Regents, 528 U.S. 62

(2000), and Bd. of Trustees of the Univ. of Ala. v. Garrett, 121 S. Ct.

955 (2001). It notes correctly that the other circuits addressing

similar cases have found the states immune from suits for damages under

the FMLA. I recognize the weight of these precedents. Nevertheless,

I must respectfully dissent.

In Kimel and Garrett, where the Supreme Court invalidated

congressional abrogation of state sovereign immunity in the ADEA and

ADA, respectively, the Court reviewed legislation requiring states to

alter age- and disability-related practices that, under rational basis

review, would not be adjudged constitutional violations under Section

1 of the Fourteenth Amendment. State actions involving gender

discrimination are subject to heightened scrutiny, not rational basis

review. In applying the congruence and proportionality test to the

FMLA's prophylactic scheme, and the legislative record supporting it,

we should recognize that the heightened scrutiny standard, and the

Supreme Court precedent applying it to claims of gender discrimination,
require greater deference to congressional action addressing gender

discrimination. Relatedly, I think it is inappropriate to evaluate in

isolation a personal medical leave provision that supplements the

caretaking provisions of the FMLA with an important protection for

women against gender discrimination in employment. I would vacate the

district court decision dismissing Laro's action for damages against

the State of New Hampshire.

I.

In City of Boerne v. Flores, 521 U.S. 507 (1997), the Supreme

Court set forth the congruence and proportionality test applicable to

remedial and prophylactic measures enacted by Congress pursuant to

Section 5 of the Fourteenth Amendment. The test first requires "a

congruence between the means used and the ends to be achieved." Id. at

530. Additionally, the legislation may not be "so out of proportion to

a supposed remedial or preventive object that it cannot be understood

as a response to, or designed to prevent, unconstitutional behavior."

Id. at 532. As this language suggests, the congruence and

proportionality test is malleable. "The appropriateness of remedial

measures must be considered in light of the evil presented. Strong

measures appropriate to address one harm may be an unwarranted response

to another, lesser one." Id. at 530 (citations omitted).

The legislation at issue in Boerne, the Religious Freedom

Restoration Act (RFRA), prohibited the federal, state and local

-38-
governments from "'substantially burdening' a person's exercise of

religion even if the burden results from a rule of general

applicability," unless the government could demonstrate both that the

burden was in furtherance of a compelling government interest and that

the rule was the least restrictive means of achieving that interest.

Id. at 515. The Court found the scope of the RFRA to be so broad as to

"ensure its intrusion at every level of government, displacing laws and

prohibiting actions of almost every description and regardless of

subject matter." Id. at 532. Because the RFRA was so sweeping in its

impact, the court concluded that "[t]he stringent test RFRA demands of

state laws reflects a lack of proportionality or congruence between the

means adopted and the legitimate end to be achieved." Id. at 533.

In Kimel, where age discrimination was the basis for

Congressional abrogation of state sovereign immunity, the Supreme Court

found a lack of congruence because "the substantive requirements the

ADEA imposes on the state and local governments are disproportionate to

any unconstitutional conduct that conceivably could be targeted by the

Act." 528 U.S. at 83. Similarly, in Garrett, where disability was the

basis for abrogation, the Court concluded that "[e]ven were it possible

to squeeze out of these examples [from the legislative record] a

pattern of unconstitutional discrimination by the States, the rights

and remedies created by the ADA against the States would raise the same

-39-
sort of concerns as to congruence and proportionality as were found in

City of Boerne." 121 S. Ct. at 966.

In cases involving age and disability, "the exercise of

congressional Section 5 power must be congruent and proportional to

behavior that a court would hold unconstitutional under rational basis

review." Robert C. Post & Reva B. Siegel, Equal Protection by Law:

Federal Antidiscrimination Legislation After Morrison and Kimel, 110

Yale L.J. 441, 461 (2000). However, as the Court made clear in Kimel,

the judicial inquiry in these state immunity cases does not end with a

judgment on the congruence of the legislation:

That the ADEA prohibits very little conduct
likely to be held unconstitutional, while
significant, does not alone provide the answer to
our § 5 inquiry. Difficult and intractable
problems often require powerful remedies, and we
have never held that § 5 precludes Congress from
enacting reasonably prophylactic legislation.
Our task is to determine whether the ADEA is in
fact just such an appropriate remedy or, instead,
merely an attempt to substantively redefine the
States' legal obligations with respect to age
discrimination. One means by which we have made
such a determination in the past is by examining
the legislative record containing the reasons for
Congress' action.

Kimel, 528 U.S. at 88.

In Kimel and again in Garrett, the Court found the

legislative record inadequate. Regarding the ADEA, the Court ruled

that "Congress never identified any pattern of age discrimination by

the States, much less any discrimination whatsoever that rose to the

-40-
level of constitutional violation. The evidence compiled by

petitioners to demonstrate such attention by Congress to age

discrimination by the States falls well short of the mark." Kimel, 528

U.S. at 89. In Garrett, "[t]he legislative record of the ADA . . .

simply fails to show that Congress did in fact identify a pattern of

irrational state discrimination in employment against the disabled."

121 S. Ct. at 965. The Court noted further that: "Under rational basis

review, where a group possesses distinguishing characteristics relevant

to interests the State has the authority to implement, a States's

decision to act on the basis of those differences does not give rise to

a constitutional violation." Id. at 963 (quotations omitted).

II.

The Supreme Court has not yet applied the congruence and

proportionality test to a legislative record supporting prophylactic

measures aimed at gender discrimination. In Kimel, the Court noted an

important difference between age classifications and gender

classifications:

Age classifications, unlike governmental conduct
based on race or gender, cannot be characterized
as 'so seldom relevant to the achievement of any
legitimate state interest that laws grounded in
such considerations are deemed to reflect
prejudice and antipathy.' Older persons, again,
unlike those who suffer discrimination on the
basis of race or gender, have not been subjected
to a 'history of purposeful unequal treatment.'

-41-
528 U.S. at 83 (citations omitted) (emphasis added).

When gender classifications are being considered, rational basis review

gives way to heightened scrutiny, whereby legislation involving

"classifications by gender must serve important governmental objectives

and must be substantially related to achievement of those objectives."

Craig v. Boren, 429 U.S. 190, 197 (1976); see also Mississippi Univ.

for Women v. Hogan, 458 U.S. 718 (1982).

The application of heightened scrutiny to governmental

classifications based on gender has important implications for the

application of the congruence and proportionality test to prophylactic

legislation enacted pursuant to Section 5 of the Fourteenth Amendment.

The universe of constitutional governmental conduct based on age and

disability is large, given the applicability of rational basis review.

The universe of constitutional governmental conduct based on gender is

small, given the applicability of heightened scrutiny. Therefore,

"heightened scrutiny creates more room for Congress to act under

Section 5 because the universe of potential unconstitutional actions by

the states is much larger." Brian Ray, Note, "Out the Window"?

Prospects for the EPA and the FLA after Kimel v. Florida Board of

Regents, 61 Ohio St. L.J. 1755, 1783 (2000). Put another way,

legislation designed to prevent gender discrimination presumptively

captures a wider range of unconstitutional conduct than legislation

aimed at age or disability discrimination. In this sense, gender-

-42-
protective legislation has a better chance of passing muster as

"reasonably prophylactic." Importantly, the Supreme Court has stated

emphatically that it has "never held that § 5 precludes Congress from

enacting reasonably prophylactic legislation." Kimel, 528 U.S. at 88.

In my view, the personal medical leave provision of the FMLA is

reasonably prophylactic in the sense that it is an important component

of a legislative scheme designed, in part, to prevent gender

discrimination against women by employers, including state employers.

III.

The FMLA leave provisions entitle an eligible employee to

twelve weeks of unpaid leave during any twelve-month period for one or

more of the following:

(A) Because of the birth of a son or daughter of
the employee and in order to care for such son or
daughter; (B) Because of the placement of a son
or daughter with the employee for adoption or
foster care; (C) In order to care for the spouse,
or a son, daughter, or parent of the employee, if
such spouse, son, daughter, or parent has a
serious health condition; (D) Because of a
serious health condition that makes the employee
unable to perform the functions of the position
of such employee.

29 U.S.C. § 2612(a)(1) (2001).

Provisions (A), (B) and (C) in this scheme all involve unpaid leave for

the purpose of caring for another family member. Only provision (D)

provides unpaid leave because of the personal medical condition of the

employee. Some history emphasizes why leave programs limited to the

-43-
need of an employee to care for another family member can disadvantage

women.

Before 1978 there was no federally required parity in the

allowance for pregnancy and sick leave, a circumstance which prevented

many women from entering and advancing in the workforce altogether.

Even if sick leave were available, pregnancy was often excluded from

this benefit, making the policy one that favored men and left women who

wanted to have children out of a job. The Pregnancy Discrimination Act

(PDA), 92 Stat. 2076 (1978), sought to rectify this inequity by

affording some entitlement to pregnancy-related leave. Employers who

provided sick leave for other conditions were required to offer the

same level of benefits for maternity leave. 42 U.S.C. § 2000e(k).

While this change surely gave women some increased opportunity to enter

the workplace, it left unaddressed the presumption that women of child-

bearing age would take more leave and were thus less desirable

employees in the first place. As a result, "employers might find it

cost-effective to discriminate against married women of child-bearing

age, since these women would end up costing a firm more than they

contribute to its worth." S. Rep. No. 102-68, at 73 (1991) (testimony

of economist Deborah Walker). The protections that the PDA was

intended to provide ultimately had some negative impact on women's

workplace opportunities.

-44-
 Against this background, Congress enacted an FMLA scheme

which included the personal medical leave provision. The Act states:

"Congress finds that . . . employment standards that apply to one

gender only have serious potential for encouraging employers to

discriminate against employees and applicants for employment who are of

that gender." 29 U.S.C. § 2601(a)(6). The Act seeks to achieve its

purposes "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 . . . [and] to promote the goal of equal employment opportunity

for women and men." 29 U.S.C. §§ 2601(b)(4) & (5).

In reports preceding enactment of the FMLA, there was close

attention to the need for a personal medical leave provision in the

FMLA. The Senate Committee on Labor and Human Resources reported:

[A] significant benefit of the temporary medical
leave provided by the 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

-45-
 in hiring policies; legislation helping all
workers equally does not have this effect.

S. Rep. No. 102-68, at 35 (1991).

The House Committee on Education and Labor made the same point in its

report on the legislation:

The FMLA addresses the basic leave needs of all
employees. It covers not only women of
childbearing age, but all employees, young and
old, male and female, who suffer from a serious
health condition, or who have a family member
with such a condition. A law providing special
protection to women or any defined group, in
addition to being inequitable, runs the risk of
causing discriminatory treatment. [This
legislation], by addressing the needs of all
workers, avoids such a risk.

H.R. Rep. No. 103-8, pt. 1, at 29 (1993).1

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

1 I acknowledge that Congress's adoption of the personal
medical leave provision also reflected concerns for economic
dislocation and discrimination related to medical conditions.
Those additional concerns do not detract from the significance
of Congress's concern for gender discrimination.

-46-
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. To be sure, the caretaking provisions of the Act, prongs (A)

through (C), protect men and women from gender discrimination by giving

men the opportunity to assume equal responsibilities for the care of

their families and by shielding women from the stereotype that assigns

such roles to women. These provisions serve important goals

independently of prong (D), the personal medical leave provision. For

the reason stated, however, the inclusion of the personal medical leave

provision in the FMLA is also particularly important to women in

protecting them against gender discrimination.

Interestingly, there is some early evidence that the FMLA is

working as the drafters had hoped. Under the FMLA, 41.8 percent of all

leave-takers are men, with men invoking the FMLA for parental leave

purposes in comparable numbers to women. Commission on Family and

Medical Leave, A Workable Balance: Report to Congress on Family and

Medical Leave Policies 75 (1996). A study of both private and public

sector employers following FMLA implementation found that "differences

in usage rates by industry were not related to the percent of the

workforce that was female. . . . [E]arly indications are that both

genders are making use of the Act." Holly B. Tompson and Jon M.

Werner, The Family and Medical Leave Act: Assessing the Costs and

Benefits of Use, 1 Employee Rts. & Employment Pol'y J. 125, 147 (1997).

-47-
It is possible, if not probable, that the inclusion of the personal

medical leave provision has helped account for the increase in men such

as Stephen Laro accessing leave.

The history that led to the inclusion of the personal medical

leave provision in the FMLA, and the evidence of its effectiveness,

highlight the congruence between this prophylactic measure and

potentially discriminatory conduct by state employers. Under the lens

of heightened scrutiny, such employers would be acting

unconstitutionally if they denied women equal employment opportunities

because of stereotypical views that women are the primary caregivers,

and hence the greater employment risks. The FMLA attempts to blunt the

force of such stereotypes and such discriminatory conduct by increasing

the odds that men and women will invoke leave provisions in equal

numbers. Unlike the ADEA provision under review in Kimel, which

"prohibit[ed] very little conduct likely to be held unconstitutional,"

Kimel, 528 U.S. at 88, the personal medical leave provision of the FMLA

attempts to prevent conduct by a state employer that would be

unconstitutional. Although this congruence does not dispense with the

need for Congress to justify its invocation of Section 5 of the

Fourteenth Amendment to abrogate the immunity of the states, this

congruence does mean that the burden of justification should be less

than that applied by the Court in Kimel and Garrett.

IV.

-48-
 The legislative record includes substantial material drawn

from the private sector about the need for the FMLA generally, and the

need for a personal medical leave provision specifically. Indeed, the

legislative record is replete with evidence from the private sector

that because women generally had greater access to maternity and

parental leave, some employers were reluctant to hire them. See Samuel

Issacharoff & Elyse Rosenblum, Women and the Workplace: Accommodating

the Demands of Pregnancy, 94 Colum. L. Rev. 2154, 2196 (1994) (quoting

testimony from the United States Chamber of Commerce explaining: "Faced

with mandated parental leave, a business owner choosing between two

qualified candidates - one male and one female - would be tempted to

select the male.").2 One hearing statement from 1987 concluded: "The

lack of uniform parental and medical leave policies in the work place

has created an environment where discrimination is rampant." The

Parental and Medical Leave Act of 1987, Hearings before the Subcomm. of

the Senate Comm. on Labor and Human Resources, Part 2 , 100th Cong. 536

2 The article also cites poll figures that show employers
admitting a tendency not to hire young women in the face of
leave legislation. Id. at 2196 n.169 (citing 139 Cong. Rec.
H368 (daily ed. Feb. 3, 1993) (statement of Rep. Dreier) and 137
Cong. Rec. H9748 (daily ed. Nov. 13, 1991) (statement of Rep.
DeLay)). While this data was used to counter arguments in favor
of the FMLA, it is not logically consistent to conclude that
leveling leave policies across genders would make the
circumstance of women more grave.

-49-
(1987) (comments of Peggy Montes, Mayor's Commission on Women's

Affairs, City of Chicago) [hereinafter Hearings on Leave Act of 1987].

There was evidence before Congress that some of this

discrimination is caused by stereotypes about women which assume that

women "are mothers first, and workers second," Parental and Medical

Leave Act of 1986, Joint Hearings before the Subcomm. on Labor-

Management Relationship and the Subcomm. on Labor Standards for the

Comm. on Education and Labor, 99th Cong. 25 (1996) [hereinafter

Hearings: Leave Act of 1986], and that women are untrustworthy workers

because of their tendency to "become pregnant and leave the labor

market," id. at 42 n.48. The legislative record memorializes

Congress's understanding that the provisions of the FMLA would serve to

rectify some of this gender discrimination. For example, one of the

Senate reports stated: "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." S. Rep. No. 102-68, at 35 (1991). The

inclusion of the personal medical leave provision in the FMLA would

deter employers from acting on the assumption that women are much more

likely to invoke leave provisions related only to childcare or care of

seriously ill family members.

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 Congress also had reason to conclude that gender

discrimination caused by differing leave policies was a significant

problem in state employment as well as in the private sector. As the

House report noted: "Private sector practices and government policies

have failed to adequately respond to recent economic and social changes

that have intensified the tensions between work and family." H.R. Rep.

No. 103-8, pt. 1, at 21 (1993). During the hearings in 1986, Congress

heard testimony that "[p]ublic sector leaves don't vary very much from

private sector leaves." Hearings: Leave Act of 1986, at 30; see also

id. at 147 (noting that "discriminatory treatment" occurs in both the

public and private sectors). Data showed that, like private employers,

many states made different allowances for leave between male and female

employees, reflecting a similarity in employment practices and leave

policies across sectors. See Hearings on Leave Act of 1987 at 364-75;

Family and Medical Leave Act of 1989: Hearings on H.R. 770 Before the

Subcomm. on Labor-Management Relations, 101st Cong. 271 (1989).

Indeed, the legislative record describes state provisions prescribing

inequitable access to leave depending upon gender. See H.R. Rep. No.

103-8, pt. 1, at Attachment B (1993). These policies raised legitimate

concerns that discriminatory presumptions about women's leave-taking

practices could influence private and public hiring decisions,

including those by state employers.

V.

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 In my view, this legislative record justifies Congress's

abrogation of state immunity in the FMLA pursuant to its Section 5

authority. Although Kimel and Garrett reject the notion that Congress

may infer discrimination by the states from findings of private-sector

discrimination, that rejection does not necessarily apply in a case

such as this. Neither Kimel nor Garrett involved legislation designed

to remedy discrimination against a class of persons who receive

heightened scrutiny under the Equal Protection Clause. Against a

backdrop of extensive evidence of employment discrimination in the

private sector based on leave policies, the more limited evidence of

similar practices by state government serves to confirm the logical

inference that state employment practices are similar to private sector

practices. As the dissent observed in Kazmier v. Widmann, 225 F.3d

519 (5th Cir. 2000):

[E]vidence of private discrimination based on age has no
probative value with respect to unconstitutional
discrimination based on age by the States because it is so
unlikely that the discrimination engaged in by private
employers would be considered unconstitutional if engaged in
by the States. With respect to race and gender, however,
because of the significant likelihood that any
discrimination by the States on those bases would be
unconstitutional, evidence that such discrimination is
widespread through the private sector may be sufficient.

Id. at 548 n.15 (Dennis, J., dissenting).

The Court has also upheld laws that can be deemed "reasonably

prophylactic," Kimel, 528 U.S. at 88, even without explicit evidence of

-52-
unconstitutional discrimination. See Katzenbach v. Morgan, 384 U.S.

641, 653-55 (1966) (holding that Congress may legislate to enforce the

Equal Protection clause even if the law's scope extends beyond the

unconstitutional behavior sought to be prevented). Otherwise, Congress

would be confined to the "insignificant role" of abrogating state

authority only when the judicial branch is prepared to adjudge an

action unconstitutional. Id. at 648-49; see also Fitzpatrick v.

Bitzer, 427 U.S. 445, 456 (1976) ("When Congress acts pursuant to § 5,

[] it [is] exercising legislative authority that is plenary within the

terms of the constitutional grant.").

While it is true that the FMLA goes beyond disallowing

discrimination based on gender and imposes affirmative duties on the

states in furtherance of equal protection, that imposition is

permissible pursuant to Section 5's enforcement authority. See, e.g.,

Morgan, 384 U.S. at 658 (upholding legislation designed to cure

discrimination based on ethnicity). Unlike the RFRA at issue in

Boerne, the FMLA does not represent "[s]weeping coverage [that] ensures

its intrusion at every level of government, displacing laws and

prohibiting official actions of almost every description and regardless

of subject matter." Boerne, 521 U.S. at 532. Rather, the Act's

requirements are confined to particular terms of employment benefit

plans; the impact of the Act's requirements is more predictable and

limited.

-53-
 In United States v. Virginia, 518 U.S. 515 (1996), the

Supreme Court stated: "'Inherent differences' between men and women,

we have come to appreciate, remain cause for celebration, but not for

the denigration of the members of either sex or for the artificial

constraints on an individual's opportunity." Id. at 533. Misguided

views about inherent differences between men and women have the

alarming potential to "create or perpetuate the legal, social and

economic inferiority of women." Id. at 534. This truth underscores

the importance of employment leave policies that inhibit gender-based

stereotyping and unconstitutional discrimination by state employers.

Given the substantial record of gender discrimination in the private

sector, some evidence of similar discrimination by the states, and the

teachings of history and logic, I conclude that Congress properly

exercised its Section 5 authority in abrogating the states' Eleventh

Amendment immunity in the FMLA. The district court decision barring

Laro's suit for damages against the State of New Hampshire should be

vacated.

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