Coleman v. Court of Appeals of Maryland , 132 S. Ct. 1327 ( 2012 )

(Slip Opinion) OCTOBER TERM, 2011 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
COLEMAN v. COURT OF APPEALS OF MARYLAND
ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FOURTH CIRCUIT
No. 10–1016. Argued January 11, 2012—Decided March 20, 2012
The Family and Medical Leave Act of 1993 (FMLA) entitles an employ-
ee to take up to 12 work weeks of unpaid leave per year for (A) the
care of a newborn son or daughter; (B) the adoption or foster-care
placement of a child; (C) the care of a spouse, son, daughter, or par-
ent with a serious medical condition; and (D) the employee’s own se-
rious health condition when the condition interferes with the employ-
ee’s ability to perform at work. 29 U. S. C. §2612(a)(1). The FMLA
also creates a private right of action for equitable relief and damages
“against any employer (including a public agency) in any Federal or
State court.” §2617(a)(2). For present purposes, subparagraphs (A),
(B), and (C) are referred to as the family-care provisions, and subpar-
agraph (D) as the self-care provision. In Nevada Dept. of Human Re-
sources v. Hibbs, 538 U. S. 721, 730−732, this Court held that Con-
gress could subject States to suit for violations of subparagraph (C)
based on evidence of family-leave policies that discriminated on the
basis of sex.
Petitioner filed suit, alleging that his employer, the Maryland
Court of Appeals, an instrumentality of the State, violated the FMLA
by denying him self-care leave. The Federal District Court dismissed
the suit on sovereign immunity grounds. The Fourth Circuit af-
firmed, holding that unlike the family-care provision in Hibbs, the
self-care provision was not directed at an identified pattern of gen-
der-based discrimination and was not congruent and proportional to
any pattern of sex-based discrimination on the part of States.
Held: The judgment is affirmed.
626 F. 3d 187, affirmed.
2 COLEMAN v. COURT OF APPEALS OF MD.
Syllabus
JUSTICE KENNEDY, joined by THE CHIEF JUSTICE, JUSTICE THOMAS,
and JUSTICE ALITO, concluded that suits against States under the
self-care provision are barred by sovereign immunity. Pp. 3−12.
(a) Under the federal system, States, as sovereigns, are immune
from damages suits, unless they waive that defense. See, e.g., Kimel
v. Florida Bd. of Regents, 528 U. S. 62, 72−73. Congress may also ab-
rogate the States’ immunity pursuant to its powers under §5 of the
Fourteenth Amendment, but it must make that intention “unmistak-
ably clear in the language of the statute,” Hibbs, supra, at 726. It did
so in the FMLA. Congress also “must tailor” legislation enacted un-
der §5 “to remedy or prevent” “conduct transgressing the Fourteenth
Amendment’s substantive provisions.” Florida Prepaid Postsecond-
ary Ed. Expense Bd. v. College Savings Bank, 527 U. S. 627, 639.
“There must be a congruence and proportionality between the injury
to be prevented or remedied and the means adopted to that end.”
City of Boerne v. Flores, 521 U. S. 507, 520. Pp. 3−5.
(b) The sex-based discrimination that supported allowing subpara-
graph (C) suits against States is absent with respect to the self-care
provision. Petitioner’s three arguments to the contrary are unper-
suasive. Pp. 5–12.
(1) Petitioner maintains that the self-care provision addresses
sex discrimination and sex stereotyping. But the provision, standing
alone, is not a valid abrogation of the States’ immunity from suit. At
the time the FMLA was enacted, there was no evidence of such dis-
crimination or stereotyping in sick-leave policies. Congress was con-
cerned about the economic burdens imposed by illness-related job loss
on employees and their families and about discrimination based on
illness, not sex. Although the self-care provision offers some women
a benefit by allowing them to take leave for pregnancy-related ill-
nesses, the provision, as a remedy, is not congruent and proportional
to any identified constitutional violations. When the FMLA was en-
acted, Congress had no evidence that States were excluding pregnan-
cy-related illnesses from their leave policies. Pp. 6–7.
(2) Petitioner also argues that the self-care provision is a neces-
sary adjunct to the family-care provision sustained in Hibbs. But his
claim—that the provisions work in tandem to ensure the equal avail-
ability of total FMLA leave time to women and men despite their dif-
ferent leave-usage patterns―is unconvincing and does not comply
with the requirements of City of Boerne. Also, there are no congres-
sional findings of, or evidence on, how the self-care provision is nec-
essary to the family-care provisions or how it reduces employer dis-
crimination against women. Pp. 8–11.
(3) Finally, petitioner contends that the self-care provision helps
single parents keep their jobs when they get ill. The fact that most
Cite as: 566 U. S. ____ (2012) 3
Syllabus
single parents happen to be women demonstrates, at most, that the
self-care provision was directed at remedying neutral leave re-
strictions that have a disparate effect on women. However,
“[a]lthough disparate impact may be relevant evidence of . . . discrim-
ination . . . such evidence is insufficient [to prove a constitutional
violation] even where the Fourteenth Amendment subjects state ac-
tion to strict scrutiny.” Board of Trustees of Univ. of Ala. v. Garrett,
531 U. S. 356, 373. Because 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. Pp. 11−12.
JUSTICE SCALIA adhered to his view that the Court should abandon
the “congruence and proportionality” approach in favor of one that is
properly tied to the text of §5, which grants Congress the power “to
enforce, by appropriate legislation,” the other provisions of the Four-
teenth Amendment. Outside the context of racial discrimination,
Congress’s §5 power should be limited to the regulation of conduct
that itself violates the Fourteenth Amendment and thus would not
reach a State’s failure to grant self-care leave to its employees.
Pp. 1−2.
KENNEDY, J., announced the judgment of the Court and delivered an
opinion, in which ROBERTS, C. J., and THOMAS and ALITO JJ., joined.
THOMAS, J., filed a concurring opinion. SCALIA, J., filed an opinion con-
curring in the judgment. GINSBURG, J., filed a dissenting opinion, in
which BREYER, J., joined, and in which SOTOMAYOR and KAGAN, JJ.,
joined as to all but footnote 1.
Cite as: 566 U. S. ____ (2012) 1
Opinion of KENNEDY, J.
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, Wash-
ington, 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
_________________
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 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, 107
Stat. 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 feder-
al system. See 626 F. 3d 187 (CA4 2010) (case below);
Nelson v. University of Tex., 535 F. 3d 318 (CA5 2008);
2 COLEMAN v. COURT OF APPEALS OF MD.
Opinion of KENNEDY, J.
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 condi-
tion 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 agen-
cy) in any Federal or State court of competent jurisdic-
tion.” §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 rea-
sons 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 viola-
tions 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
Cite as: 566 U. S. ____ (2012) 3
Opinion of KENNEDY, J.
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 termi-
nated 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 Mary-
land Court of Appeals is an entity or instrumentality of
the State for purposes of sovereign immunity. The Dis-
trict 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, 72–73 (2000); Alden
v. Maine, 527 U. S. 706 (1999). As an exception to this
4 COLEMAN v. COURT OF APPEALS OF MD.
Opinion of KENNEDY, J.
principle, Congress may abrogate the States’ immunity
from suit pursuant to its powers under §5 of the Four-
teenth Amendment. See, e.g., Fitzpatrick v. Bitzer, 427
U. S. 445 (1976).
Congress must “mak[e] its intention to abrogate unmis-
takably 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’ immun-
ity 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 “pub-
lic 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 provi-
sion 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, Con-
gress “must tailor” legislation enacted under §5 “ ‘to rem-
edy 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 im-
pose monetary liability upon States requires an assess-
Cite as: 566 U. S. ____ (2012) 5
Opinion of KENNEDY, J.
ment 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 re-
cover 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 wom-
en than to men. 538 U. S., at 730–731. States also admin-
istered 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 bene-
fits,” 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 overgenerali-
zation 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 employ-
ees to recover damages from States that violate the
6 COLEMAN v. COURT OF APPEALS OF MD.
Opinion of KENNEDY, J.
FMLA’s self-care provision: The self-care provision stand-
ing alone addresses sex discrimination and sex stereotyp-
ing; 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 provi-
sions have to support them, the self-care provision lacks,
namely evidence of a pattern of state constitutional viola-
tions 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 state-
and 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 (hereinaf-
ter 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.
Cite as: 566 U. S. ____ (2012) 7
Opinion of KENNEDY, J.
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 distinc-
tion 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 gen-
der. 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 poli-
cies. “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.
8 COLEMAN v. COURT OF APPEALS OF MD.
Opinion of KENNEDY, J.
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 ex-
pected 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 em-
ployers 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 evi-
dence to support petitioner’s assumption about the magni-
tude 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
Cite as: 566 U. S. ____ (2012) 9
Opinion of KENNEDY, J.
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 discrimi-
nate 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 provi-
sion 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 exist-
ence or adequacy of state” sick-leave policies. Florida
Prepaid, supra, at 644; see Garrett, 531 U. S., at 373.
10 COLEMAN v. COURT OF APPEALS OF MD.
Opinion of KENNEDY, J.
Under this Court’s precedents, more is required to sub-
ject 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 provi-
sions). See Florida Prepaid, 527 U. S., at 642 (“[T]he
legislative record still provides little support for the prop-
osition 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 testi-
mony, 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 gener-
alities to subject the States to suits for damages. Other-
wise, 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 vaca-
tion 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, be-
tween self-care leave and gender discrimination by state
employers. Documented discrimination against women in
the general workplace is a persistent, unfortunate reality,
Cite as: 566 U. S. ____ (2012) 11
Opinion of KENNEDY, J.
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 stat-
ute 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 remedy-
ing 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, 82–83 (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 consti-
tutional 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 Amend-
ment immunity from suits for damages. See, e.g., Sossa-
12 COLEMAN v. COURT OF APPEALS OF MD.
Opinion of KENNEDY, J.
mon 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 neces-
sary 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 defend-
ants. 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, Con-
gress 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.
Cite as: 566 U. S. ____ (2012) 1
THOMAS, J., concurring
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, 565–566 (2004) (THOMAS, J., dis-
senting). The self-care provision at issue in this case is
even further removed from any such pattern.
Cite as: 566 U. S. ____ (2012) 1
SCALIA, J., concurring in judgment
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 applica-
tion 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 “congru-
ence 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, 557–558 (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 congres-
sional 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 Con-
gress’s §5 power to the regulation of conduct that itself
2 COLEMAN v. COURT OF APPEALS OF MD.
SCALIA, J., concurring in judgment
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.
Cite as: 566 U. S. ____ (2012) 1
GINSBURG, J., dissenting
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 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 Con-
gress 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. Flor-
ida Bd. of Regents, 528 U. S. 62, 81 (2000). “In other
words, Congress may enact so-called prophylactic leg-
islation that proscribes facially constitutional conduct,
in order to prevent and deter unconstitutional conduct.”
Nevada Dept. of Human Resources v. Hibbs, 538 U. S. 721,
727–728 (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 new-
born 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.
2 COLEMAN v. COURT OF APPEALS OF MD.
GINSBURG, J., dissenting
§2612(a)(1).
Even accepting this Court’s view of the scope of Con-
gress’ 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 discrimi-
nation in the workplace.1
I
Section 5 legislation “must be targeted at conduct trans-
gressing the Fourteenth Amendment’s substantive provi-
sions,” 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 discrim-
ination on the basis of illness, not sex.” Ante, at 7. In so
declaring, the plurality undervalues the language, pur-
——————
1Iremain 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 Com-
merce Clause legislation. See infra, at 21. I also share the view that
Congress can abrogate state immunity pursuant to §5 of the Four-
teenth 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).
Cite as: 566 U. S. ____ (2012) 3
GINSBURG, J., dissenting
pose, and history of the FMLA, and the self-care provi-
sion’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, con-
sistent with the Equal Protection Clause of the Fourteenth
Amendment, minimizes the potential for employment dis-
crimination on the basis of sex by ensuring generally
that leave is available for eligible medical reasons (includ-
ing 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 stand-
ards 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 provi-
sion 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 chal-
lenged 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
4 COLEMAN v. COURT OF APPEALS OF MD.
GINSBURG, J., dissenting
(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 child-
birth 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 ad-
vocates. “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 dis-
agreed, 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.
——————
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 preg-
nancy, 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 . . . .” 92 Stat. 2076, 42
U. S. C. §2000e(k).
Cite as: 566 U. S. ____ (2012) 5
GINSBURG, J., dissenting
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. Wid-
mann, 225 F. 3d 519, 547 (CA5 2000) (Dennis, J., dissent-
ing) (“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 preg-
nancy 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 be-
lieve that viewing pregnancy as sui generis perpetuated
widespread discrimination against women.4 They there-
——————
3 Lenhoff advanced The Parental and Disability Act of 1985, intro-
duced 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 Califor-
nia statute allowed employers to discriminate against pregnant work-
ers. 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
6 COLEMAN v. COURT OF APPEALS OF MD.
GINSBURG, J., dissenting
fore maintained their commitment to gender-neutral
leave. See Joint Hearing on H. R. 925 before the Sub-
committee on Civil Service and the Subcommittee on
Compensation and Employee Benefits of the House Com-
mittee on Post Office and Civil Service, 100th Cong., 1st
Sess., 36 (1987) (hereinafter 1987 House Hearing) (state-
ment of Prof. Eleanor Holmes Norton, Georgetown Uni-
versity Law Center) (“[If California Fed.] becomes the
model, employers will provide something for women af-
fected 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 inter-
pretation 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 child-
birth. 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 work-
ers who bear children. Because the bill treats all employ-
ees 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
——————
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 legisla-
tion amending Title VII . . . to prohibit sex discrimination on the basis
of pregnancy,” namely, the PDA. See 1978 Cal. Stats. ch. 1321, §4.
Cite as: 566 U. S. ____ (2012) 7
GINSBURG, J., dissenting
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 “noth-
ing 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 evi-
dence of a well-documented pattern of workplace discrimi-
nation 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 nec-
essary, but not a sufficient measure. FMLA hearings
conducted between 1986 and 1993 included illustrative testi-
mony 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
8 COLEMAN v. COURT OF APPEALS OF MD.
GINSBURG, J., dissenting
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 discrimina-
tion 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 morn-
ing 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
——————
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).
Cite as: 566 U. S. ____ (2012) 9
GINSBURG, J., dissenting
leave); 139 Cong. Rec. 1826 (1993) (remarks of Sen. Ed-
ward Kennedy) (“[W]omen who are pregnant are discrimi-
nated 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 em-
ployment 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 discrimina-
tion against women when they are mothers or mothers-
to-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 em-
ployer 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 discrimi-
nation 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 Hear-
ings, pt. 1, pp. 31, 35, 39 (statement of James T. Bond,
10 COLEMAN v. COURT OF APPEALS OF MD.
GINSBURG, J., dissenting
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 discrimi-
nation 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
Cite as: 566 U. S. ____ (2012) 11
GINSBURG, J., dissenting
exclude anyone from benefit eligibility because of gen-
der but merely removes one physical condition—
pregnancy—from the list of compensable disabili-
ties. 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 bene-
fits 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 fe-
male from the male.” General Elec. Co. v. Gilbert, 429
U. S. 125, 161–162 (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 exclu-
sion 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,
12 COLEMAN v. COURT OF APPEALS OF MD.
GINSBURG, J., dissenting
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 re-
cover, while men receive full compensation for all disabili-
ties suffered . . . . Such dissimilar treatment of men and
women, on the basis of physical characteristics inextricably
linked to one sex, inevitably constitutes sex discrimina-
tion.” 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 Preg-
nancy 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, dis-
crimination 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 stereotyp-
Cite as: 566 U. S. ____ (2012) 13
GINSBURG, J., dissenting
ing 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 commit-
ment to work and their value as employees.” Hibbs, 538
U. S., at 736. Because pregnancy discrimination is in-
evitably 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 propor-
tionality 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 stereo-
types 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 recov-
ery 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
14 COLEMAN v. COURT OF APPEALS OF MD.
GINSBURG, J., dissenting
pregnant, would obviously “exclude far more women than
men from the workplace.” Id., at 738.
The plurality’s statement that Congress lacked “wide-
spread evidence of sex discrimination . . . in the admin-
istration 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 re-
quiring 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 child-
birth, does not mean that the provision lacks the requisite
congruence and proportionality to the identified constitu-
tional 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 caus-
ing discriminatory treatment. Employers might be
less inclined to hire women . . . . For example, legisla-
Cite as: 566 U. S. ____ (2012) 15
GINSBURG, J., dissenting
tion addressing the needs of pregnant women only
might encourage discriminatory hiring practices
against women of child bearing age. Legislation ad-
dressing 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 Com-
merce Clause, but also on the guarantees of equal pro-
tection . . . embodied in the Fourteenth Amendment.”
H. R. Rep. No. 102–135, pt. 1, pp. 27–28 (1991) (here-
inafter 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 limi-
tations 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
16 COLEMAN v. COURT OF APPEALS OF MD.
GINSBURG, J., dissenting
require a doctor’s certification of a serious health condi-
tion. §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 propor-
tional 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 re-
sponse 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 partici-
——————
6 Notably, the plurality does not cite or discuss Geduldig v. Aiello, 417
U. S. 484 (1974), perhaps embarrassed by that opinion’s widely criti-
cized 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” than
the 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 Citizen-
ship 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 “legisla-
tive” insensitivity. Imagine what the presence of even one woman
Justice would have meant to the Court’s conferences.”).
Cite as: 566 U. S. ____ (2012) 17
GINSBURG, J., dissenting
pation 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 stereo-
type 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 Chil-
dren, Family, Drugs, and Alcoholism of the Senate Com-
mittee 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 situa-
tion.” 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).
18 COLEMAN v. COURT OF APPEALS OF MD.
GINSBURG, J., dissenting
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 equal-
ly. According to one study, male workers missed an aver-
age 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]a-
rental and medical leave,” Congress was thus alerted,
“are inseparable”:
“In the words of an old song, ‘You can’t have one with-
out 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 la-
bor 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, Na-
tional Women’s Political Caucus).
Congress therefore had good reason to conclude that the
Cite as: 566 U. S. ____ (2012) 19
GINSBURG, J., dissenting
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 prima-
ry 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 rea-
son 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 be-
cause of the prevalent notion that women take more
advantage of such leave policies. The inclusion of per-
sonal medical leave in the scheme, unrelated to any
need to care for another person, undermines the as-
sumption 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. Re-
sponding to assertions that the FMLA would lead employ-
ers 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
20 COLEMAN v. COURT OF APPEALS OF MD.
GINSBURG, J., dissenting
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 family-
care 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 oc-
curred 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 dif-
ferent 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 Protec-
tion Clause jurisprudence; States may discriminate on the
Cite as: 566 U. S. ____ (2012) 21
GINSBURG, J., dissenting
basis of disability or age as long as the classification is
rationally related to a legitimate state interest. See Gar-
rett, 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 discrimina-
tion 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 trig-
gers 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 exceeding-
ly persuasive justification for that action.” (internal quota-
tion 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 legis-
lation, 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, pursu-
ant to Ex parte Young, 209 U. S. 123 (1908), seek injunc-
tive 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
22 COLEMAN v. COURT OF APPEALS OF MD.
GINSBURG, J., dissenting
discrimination against women, and devised the FMLA to
reduce sex-based inequalities in leave programs. Essen-
tial to its design, Congress assiduously avoided a legisla-
tive 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.