Kazmier v. Widmann

 Revised August 29, 2000 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT __________________________ No. 99-30242 __________________________ JANICE KAZMIER, Plaintiff-Appellee, and UNITED STATES OF AMERICA, Intervenor Plaintiff-Appellee, versus MARY WIDMANN, individually and in her official capacity as Chief attorney for the Louisiana Department of Social Services; STEVEN L. MAYER, individually and in his official capacity as General Counsel for the Louisiana Department of Social Services; GLORIA BRYANT-BANKS, Individually and in her official capacity as Secretary of the Louisiana Department of Social Services; Defendants-Appellants. _____________________________________________ Appeal from the United States District Court for the Eastern District of Louisiana _____________________________________________ August 25, 2000 Before GARWOOD, WIENER, and DENNIS, Circuit Judges. WIENER, Circuit Judge: Defendants-Appellants, all officials of the Louisiana Department of Social Services (collectively “LDSS”), appeal from the district court’s denial of their motions to dismiss on grounds of sovereign immunity (sometimes, “Eleventh Amendment immunity”) a 1 complaint brought against LDSS by Plaintiff-Appellant Janice Kazmier under the Family and Medical Leave Act (“FMLA”).1 As we conclude that the particular provisions of the FMLA that are at issue in the instant case do not validly abrogate the State of Louisiana’s sovereign immunity, we reverse and remand with instructions to dismiss Kazmier’s action. I Facts and Proceedings Kazmier was fired by LDSS after she took several weeks leave during 1995: She took at least one month of leave beginning in May of 1995 after breaking her arm in a bicycling accident, and took at least one more week of leave at the beginning of October 1995 to care for her terminally ill father. In addition, after breaking her wrist later that month, Kazmier failed to return to work for the rest of the calendar year. As a result of Kazmier’s absences, LDSS terminated her employment on January 4, 1996. Kazmier filed suit against LDSS in federal district court early in 1997, alleging that LDSS’s termination of her employment violated several provisions of the FMLA. LDSS filed a motion to dismiss, contending that Kazmier was barred by the Eleventh Amendment from prosecuting her suit in federal court. The United States intervened on Kazmier’s side, arguing that the FMLA validly abrogates the States’ Eleventh Amendment immunity. The district court denied LDSS’s motion to dismiss, and this appeal followed. 1 29 U.S.C. §§ 2601 et seq. 2 II Analysis The Eleventh Amendment is rooted in the principle, imprecisely stated in its text but implicit in the federal structure of the Constitution, that the federal courts do not have jurisdiction to hear suits brought by private individuals against nonconsenting States.2 This jurisdictional bar is not, however, absolute: The States’ sovereign immunity can be abrogated by Congress pursuant to its enforcement power under Section 5 of the Fourteenth Amendment.3 The validity of a purported abrogation is assessed judicially by applying a two-part test: First, “Congress must unequivocally express[] its intent to abrogate the immunity”;4 and, second, Congress must act “pursuant to a valid exercise of power.”5 Kazmier contends that the FMLA validly abrogates the States’ Eleventh Amendment immunity, making LDSS amenable to suit in federal court. Conceding arguendo that in enacting the FMLA Congress unequivocally expressed its intent to abrogate such immunity, LDSS insists that Congress failed to effect the intended abrogation pursuant to a valid exercise of power. Thus, the only issue before us is whether Congress’s intent to make the pertinent 2 See, e.g., Kimel v. Florida Board of Regents, __ U.S. __, __, 120 S.Ct. 631, 640 (2000) (“[T]he Constitution does not provide for federal jurisdiction over suits against nonconsenting States”). 3 Id at __, 120 S.Ct. at 644. 4 Seminole Tribe of Florida v. Florida, 517 U.S. 44, 55 (1996). 5 Id. 3 provisions of the FMLA applicable to the States was validly enacted into law pursuant to Congress’s enforcement power under Section 5 of the Fourteenth Amendment. Section 1 of the Fourteenth Amendment states that “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”6 Section 5 of the Fourteenth Amendment provides that “[t]he Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”7 Kazmier and the United States argue that the FMLA is a valid congressional enforcement of the Fourteenth Amendment’s guarantee that “[n]o State shall... deny to any person within its jurisdiction the equal protection of the laws.” “It is for Congress in the first instance to determine whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment, and its conclusions are entitled to much deference.”8 The Supreme Court has noted, however, that “the same language that serves as the basis for the affirmative grant of congressional power also serves to limit that power.”9 “Congress 6 U.S. CONST. amend. XIV, § 1. 7 U.S. CONST. amend. XIV, § 5. 8 Kimel, __ U.S. at __, 120 S.Ct. at 644 (citations omitted). 9 Id (quotations and citations omitted). 4 cannot decree the substance of the Fourteenth Amendment’s restriction on the States.... It has been given the power <to enforce,’ not the power to determine what constitutes a constitutional violation.”10 Thus, Congress’s exercise of its Section 5 enforcement power is always authorized when enacting strictly remedial legislation that narrowly targets clearly unconstitutional State conduct.11 In contrast, Congress can enact broad prophylactic legislation that prohibits States from engaging in conduct that is constitutional only when there is “a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.”12 The Supreme Court’s recent decision in Kimel v. Florida Board of Regents13 provides the clearest guidance for determining whether legislation that purports to enforce the Fourteenth Amendment’s Equal Protection Clause against the States is “congruent and proportional.” A two part test emerges from Kimel. At the first step, we begin our analysis by determining what type of constitutional violation the statute under review is designed to prevent. The outermost limits of Congress’s potential authority to enact prophylactic legislation is directly linked to the level of scrutiny that we apply in assessing the validity of discriminatory 10 Id (quotations and citations omitted). 11 Id (quotations and citations omitted). 12 Id (quotations and citations omitted). 13 __ U.S. __, 120 S.Ct. 631 (2000). 5 classifications of the targeted type. If legislation “prohibits substantially more state employment decisions and practices than would likely be held unconstitutional under the applicable equal protection... standard,”14 the legislation will not be considered congruent and proportional. Thus, Congress’s authority is most broad when “we require a tight[] fit between [the discriminatory classifications in question] and the legitimate ends they serve,” as we do with classifications that are based on race or sex.15 Conversely, congressional authority is most narrow when Congress tackles discrimination on the basis of classifications that are not constitutionally suspect: “States may discriminate on the basis of [such classifications] without offending the Fourteenth Amendment if the... classification in question is rationally related to a legitimate state interest.”16 Having established, at Kimel’s first step, the limits of Congress’s potential authority under Section 5, we examine, at Kimel’s second step, the legislative record of the statute under review to see whether it contains evidence of actual constitutional violations by the States sufficient to justify the full scope of the statute’s provisions.17 The respect that must be accorded the 14 Kimel, 527 U.S. at __, 120 S.Ct. at 647. 15 Kimel, 527 U.S. at __, 120 S.Ct. at 646. 16 Id. 17 City of Boerne v. Flores, 521 U.S. 507, 531 (1997); Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U.S. 627, __, 119 S.Ct. at 2207 (1999). 6 States as independent sovereigns within our federal system prevents Congress from restraining them from engaging in constitutionally permissible conduct based on nothing more than the mere invocation of perceived constitutional bogeymen: Legislation that abrogates immunity must be proportional with and congruent to an identified pattern of actual constitutional violations by the States.18 If Congress “fail[s] to [include in the legislative record of a prophylactic statute any evidence of a] significant pattern of unconstitutional discrimination” by the States, then the statute will not be held to abrogate the States’ sovereign immunity.19 A. Scope of Review Section 2612(a)(1) of the FMLA20 entitles eligible employees to take leave totaling twelve weeks per calendar year: (A) Because of the birth of a son or daughter and in order to care for such son or daughter; (B) Because of the placement of a son or daughter with the employee for adoption or foster care; (C) In order to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition. (D) Because of a serious health condition that makes the employee unable to perform the functions of the position of such employee. Kazmier has alleged that her employment with LDSS was terminated because she took leave (1) to care for her terminally father and (2) to recuperate from personal injuries. Consequently, of the 18 Kimel, 527 U.S. at __, 120 S.Ct. at 648-50. 19 Id, 527 U.S. at __, 120 S.Ct. at 647. 20 29 U.S.C. § 2612(a)(1). 7 section’s four justifications for leave under the FMLA, only subsections (C) and (D) are implicated in the instant case. As subsections (C) and (D) clearly authorize leave on different substantive grounds, logic dictates that each must be subjected to an independent “congruence and proportionality” analysis. Although we have been unable to locate any case law expressly addressing the issue of severability in the context of congruence and proportionality analysis,21 we discern no reason why the provisions of one of the FMLA’s subsections could not validly abrogate the States’ Eleventh Amendment immunity even if the provisions of some or all of the remaining subsections fail to do so. We shall therefore evaluate the congruence and proportionality of subsections (C) and (D) separately. B. Subsection (C) This subsection requires employers to permit each eligible employee to take some or all of his 12 weeks FMLA annual leave to provide care for family members suffering from serious health conditions. Congress’s express intent in enacting this provision was to prevent employers from granting such leave discriminatorily on the basis of sex.22 Specifically, Congress was responding to 21 We do note, however, that in a recent decision the Eleventh Circuit chose to analyze the validity of the FMLA’s purported abrogation of State sovereign immunity on a subsection-by- subsection basis. See Garrett v. University of Alabama, 193 F.3d 1214 (11th Cir. 1999). 22 The FMLA’s statement of purpose reflects that one of its primary purposes is to “minimize[] the potential for employment discrimination on the basis of sex by ensuring generally that leave 8 findings that private sector employers frequently discriminate against men in granting leave to provide family care.23 Testimony before Congress indicated that the perverse effect of this reverse discrimination has actually been to push women out of the work force, largely because such discrimination is both rooted in and reinforces the stereotype that women will assume the role of the primary family care-giver. According to the testimony before Congress, such stereotypes make employers less willing to hire women because of the expectation that women will take significantly more leave time to care for members of their families than will men.24 Discrimination on the basis of sex is subject to ”heightened” constitutional scrutiny.25 Sexual classifications are is available for... compelling family reasons, on a gender-neutral basis.” 29 U.S.C. § 2601(b)(4). 23 See The Parental and Medical Leave Act of 1987: Hearings on S.249 Before the Subcommittee on Children, Families, Drugs and Alcoholism of the Senate Committee on Labor and Human Resources, Part 2, 100th Cong. 536 (1987) (Statement of Professor Susan Deller Ross, Georgetown University Law Center) (“T]here are a number of studies ... in which it’s shown that employers in this country that are giving family leaves to their workers are not giving it non- discriminatorily, they are, by and large, giving it only to women, not to men. It’s fairly flagrant discrimination.”) 24 See The Family and Medical Leave Act of 1991: Hearing on S.5 Before the Subcommittee on Children, Family, Drugs and Alcoholism of the Senate Committee on Labor and Human Resources, 102d Cong. 10 (1991) (Statement of Senator Adams) (“[T]he reality today is that women are the primary caregivers for elderly parents. ... It is the daughters, whether biological or through marriage, that account for the majority of caregivers.”). 25 See United States v. Virginia, 518 U.S. 515, 533 (1996). 9 constitutional only if they serve “important governmental objectives and ... the discriminatory means employed are substantially related to the achievement of those objectives.”26 Thus, Congress potentially has wide latitude under Section 5 to enact broad prophylactic legislation designed to prevent the States from discriminating on the basis of sex. The mere invocation by Congress of the specter of sex discrimination, however, is insufficient to support the validity of legislation under Section 5, at least when the statute at issue prohibits the States from engaging in a significant amount of conduct that is constitutional. Broad, prophylactic legislation must be congruent with and proportional to actual, identified constitutional violations by the States.27 Yet in enacting the FMLA, Congress identified no pattern of discrimination by the States with respect to the granting of employment leave for the purpose of providing family care. Congress did make findings of such discrimination in the private sector, but such evidence is not imputable to the public sector to validate abrogation: The Supreme Court ruled in Kimel that findings of private sector discrimination do not create an inference that similar discrimination has occurred 26 Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724 (1982) (citation omitted). 27 See City of Boerne, 521 U.S. at 531-32; Florida Prepaid, 527 U.S. at __, 119 S.Ct. at 2207; Kimel, __ U.S. at __, 120 S.Ct. at 648-50. 10 in the public sector.28 Simply put, we will not infer from private sector conduct that the States are wilfully violating their constitutional duty to refrain from engaging in sex discrimination. It is indisputable that Subsection (C) constitutes broad, prophylactic legislation: There is nothing in the Constitution that even closely approximates either a duty to give all employees up to twelve weeks of leave per year to care for ailing family members or a right of an employee to take such leave. In fact, as the legislative record for this provision is devoid of evidence of public sector discrimination, there simply are no identified constitutional violations to which the provision could possibly be “congruent and proportional.” If subsection (C) were solely remedial in nature, the absence of evidence of constitutional violations might not present a problem. But the provisions of this subsection are, instead, prophylactic in nature, purporting to prohibit the States from engaging in a broad swath of conduct that is not per se violative of the Equal Protection Clause.29 We conclude, therefore, that Congress did not validly enact subsection (C) pursuant to its enforcement power under Section 5; that subsection (C) does not effectively abrogate the States’ Eleventh 28 Kimel, __ U.S. at __, 120 S.Ct. at 649 (“Finally, the United States’ argument that Congress found substantial age discrimination in the private sector... is beside the point. Congress made no such findings with respect to the States.”). 29 It would be perfectly constitutional, for example, for a State to provide employees with only eight weeks of leave per year to provide family care. 11 Amendment immunity; and that Kazmier cannot enforce that subsection against the State of Louisiana in federal court.30 C. Subsection (D) This subsection requires employers to permit each eligible employee to take some or all of his 12 weeks FMLA annual leave to address the employee’s own “serious health conditions.” Congress’s express intent in enacting this provision was to prevent employers from discriminating on the basis of temporary disability.31 The legislative record contains the additional suggestion that Congress meant for this provision to prevent discrimination against women on the basis of pregnancy-related disability as well.32 Kazmier and the United States argue that this latter concern indicates that, like subsection (C), subsection (D) is ultimately designed to prevent discrimination on the basis of sex. 30 See Sims v. University of Cincinnati, __ F.3d __, 2000 WL 973501 (6th Cir. 2000) (reaching the same result). 31 See H.R. Rep. No. 99-699, Part 2, at 25 (1986) (“[A] worker who has lost a job due to a serious health condition faces future discrimination in finding a job which has even more devastating consequences for the worker and his or her family.”); Family and Medical Leave Act of 1989: Hearing on S.345 Before the Subcommittee on Children, Family, Drugs, and Alcoholism of the Senate Committee on Labor and human Resources, 101st Cong. 26-27 (1989) (testimony of Ms. Barbara Hoffman, Vice President of the National Coalition for Cancer Survivorship) (stating that the “disparate treatment” of cancer survivors “includes dismissal, demotion, and loss of benefits” and that “[s]uch discrimination against qualified employees costs society millions of dollars in lost wages, lost productivity and needless disability payments”). 32 See 29 U.S.C. § 2601(a)(6) (“[E]mployment standards that apply to one gender only have serious potential for encouraging employers to discriminate against employees and applicants for employment who are of that gender.”). 12 As an initial matter, we reject the notion that subsection (D) targets sex discrimination. The legislative record demonstrates that Congress was concerned with discrimination on the basis of pregnancy, which is not the same thing as broad based discrimination on the basis of sex. The Supreme Court has held that discrimination on the basis of pregnancy does not violate the Equal Protection Clause.33 To the extent that subsection (D) targets such discrimination, it does not fall within Congress’s enforcement powers under Section 5 of the Fourteenth Amendment. The United States asserts that even though subsection (D) expressly targets only discrimination in the granting of employment leave, the provision was nevertheless intended to have the secondary effect of preventing employers from engaging in discriminatory hiring practices. Specifically, the United States asserts that Congress enacted subsection (D) in response to evidence indicating that employers often are reluctant to hire women because of “the assumption that women will become pregnant and leave the labor market.”34 The United States asks us to infer from Congress’s consideration of this evidence that even if subsection (D) is not designed to prevent discrimination on the basis of sex in the granting of leave, it is nevertheless designed 33 Geduldig v. Aiello, 417 U.S. 484 (1974). 34 See The Parental and Medical Leave Act of 1986: Joint Hearing on H.R. 4300 Before the Subcommittee on Labor-Management Relations and the Subcommittee on Labor Standards of the House Committee on Education and Labor, 99th Cong. 36, 42 n.48 (1986) (excerpt from brief of the American Civil Liberties Union). 13 to prevent discrimination on the basis of sex in the making of hiring decisions. This argument is flawed on a number of levels. First, we note that, of Section 2612(a)(1)’s four justifications for leave, subsection (A) is the one that most plausibly is designed to combat pregnancy-related discrimination, as that subsection entitles employees to take leave “[b]ecause of the birth of a son or daughter and in order to care for such son or daughter.” Second, to the extent that subsection (D) does target discrimination related to pregnancy, the argument advanced by the United States appears impermissibly to conflate discrimination on the basis of pregnancy with discrimination on the basis of sex, an approach that, as we already have noted, has been rejected by the Supreme Court.35 Ultimately, however, we need not delve too deeply into the true nature of the targeted discrimination, as we find it virtually impossible to conceive how requiring employers to permit employees to take 12 weeks of leave for serious health conditions could possibly have the effect of preventing sex discrimination in hiring practices. If the United States is correct in surmising that employers are reluctant to hire women for fear that they will become pregnant and “leave the labor market,” then the only possible effect on hiring practices of expressly mandating leave for pregnancy (among other serious health conditions) would be to 35 See Geduldig v. Aiello, 417 U.S. 484 (1974). 14 reinforce such fears and make employers even more reluctant to hire women. A provision mandating that employers grant leave for serious health conditions cannot be viewed as reasonably calculated to achieve the objective of making employers less disinclined to hire women. Again, therefore, we reject the notion that subsection (D) is designed to combat sex discrimination. What is patently clear, though, is that subsection (D) was designed by Congress to prevent discrimination on the basis of temporary disability.36 Unlike discrimination on the basis of sex, however, discrimination on the basis of disability is subject only to the slightest of scrutiny under the Equal Protection Clause.37 States may discriminate on the basis of disability without offending the Fourteenth Amendment as long as the classification in question is rationally related to a legitimate state interest.38 In this respect, disability discrimination is similar to age discrimination, so subsection (D) is properly subject to the kind of analytical approach employed by the Supreme Court in Kimel to determine whether the Age Discrimination in Employment Act (“ADEA”) 36 We note that pregnancy does fall within the definition of disability that is supplied by the statute, as pregnancy is a serious health condition that may affect the ability of an employee to perform work. 37 City of Cleburne v. Cleburne Living Center, 473 U.S. 432, (1985). 38 Id at 442 (“[W]e conclude for several reasons that the Court of Appeals erred in holding mental retardation a quasi-suspect classification calling for a more exacting standard of judicial review than is normally accorded economic and social legislation.”). 15 validly abrogates State sovereign immunity.39 Even a cursory look makes clear that, like the ADEA, the FMLA “prohibits substantially more state employment decisions and practices than would likely be held unconstitutional under the applicable equal protection, rational basis standard.”40 It would not, for example, be unconstitutional for a State to permit its employees to take only eight weeks leave per year because of serious health conditions. For that matter, it would not be unconstitutional for a State to allow its employees no health related leave time at all, as long as in doing so the State applied the rule on a nondiscriminatory basis. In sum, subsection (D) prohibits the States from engaging in such a wide array of perfectly constitutional practices that we have difficulty conjuring up any unconstitutional conduct by the States to which that subsection’s proscriptions might possibly be proportional and congruent.41 We need not engage in such counterfactual speculation, however, to resolve the instant case. The legislative record for the FMLA is devoid of any evidence of a pattern of discrimination by the States against the temporarily disabled; and the public 39 29 U.S.C. § 621 et seq. 40 Kimel, __ U.S. at __, 120 S.Ct. at 647. 41 See id at 645 (“Initially, the substantive requirements the ADEA imposes on state and local governments are disproportionate to any unconstitutional conduct that conceivably could be targeted by the Act.”). 16 sector cannot be tarred with the brush of private sector discrimination to create an inference of unconstitutional discrimination by the States.42 “Congress’ failure to uncover any significant pattern of unconstitutional discrimination here confirms that Congress had no reason to believe that broad prophylactic legislation was necessary in this field.”43 Without direct evidence of substantial unconstitutional discrimination by the States, there simply is no “Fourteenth Amendment evil” to which subsection (D) could possibly be congruent and proportional.44 We conclude, therefore, that Congress did not validly enact subsection (D) pursuant to its enforcement power under Section 5; that subsection (D) does not effectively abrogate the States’ Eleventh Amendment immunity; and that Kazmier cannot enforce that subsection against the State of Louisiana in federal court. As a final point, we reject the argument advanced by Kazmier and the United States that, by stare decisis, our holding in Coolbaugh v. State of Louisiana,45 to the effect that Title II of the Americans with Disabilities Act of 1990 (“ADA”)46 does validly 42 Id at 649 (“[T]hat Congress found substantial... discrimination in the private sector... is beside the point. Congress made no such findings with respect to the States.”). 43 Id at 650. 44 Florida Prepaid, 527 U.S. at __, 119 S.Ct. at 2207 (citation and quotations omitted). 45 136 F.3d 430 (5th Cir. 1998). 46 42 U.S.C. §§ 12131-12165 (1994). 17 abrogate the States’ Eleventh Amendment immunity, controls our decision today with respect to the validity of Congress’s abrogation of State sovereign immunity by enacting subsection (D). As an initial matter, we note that the continuing validity of Coolbaugh has been called seriously into question by the Supreme Court’s subsequent decision in Kimel which, in holding that Congress did not validly abrogate State sovereign immunity in enacting the ADEA, reversed another panel decision from this Circuit.47 The Coolbaugh panel appears to have inferred a pattern of unconstitutional discrimination by the States from evidence in the ADA’s legislative record pertaining solely to discrimination in the private sector, an inference that the Court in Kimel made clear is impermissible. We need not re-examine the holding of Coolbaugh in detail, however, because the ADA is an entirely different statute than the FMLA, with its own distinguishable substance and its own distinguishable legislative record. For present purposes we need observe only that the legislative record of the FMLA, lacking any evidence whatsoever of unconstitutional discrimination by the States, will not support abrogation of State sovereign immunity, at least not with respect to those of the FMLA’s prophylactic provisions that are at issue in this case. Coolbaugh therefore does not proscribe our concluding that, like subsection (C), subsection (D) was not validly enacted pursuant to Congress’s 47 See Scott v. University of Mississippi, 148 F.3d 493 (5th Cir. 1998), overruled by Kimel, __ U.S. __, 120 S.Ct. 631 (2000). 18 enforcement power under Section 5 of the Fourteenth Amendment and therefore does not abrogate the States’ Eleventh Amendment immunity.48 III A Response to the Dissent The extensive research that has obviously gone into the dissent, and the scholarly work that it has produced, merit a brief response. The dissent chides us for “look[ing] at Boerne and all of the prior [Eleventh Amendment] jurisprudence through the wrong end of Kimel’s perspective glass.”49 It then attempts to reinterpret the Supreme Court’s recent Eleventh Amendment jurisprudence through the antient lens of Chief Justice Marshall’s 1819 opinion in McCulloch v. Maryland.50 The thrust of the dissent’s argument is that the “congruence and proportionality” test employed by the Supreme Court in Kimel, City of Boerne, and Florida Prepaid is in actuality nothing more than a “rational basis” standard of review.51 The dissent contends that if we 48 See Hale v. Mann, __ F.3d __, 2000 WL 675209 (2d Cir. 2000) (reaching the same result). 49 Dissent at 2. 50 17 U.S. (4 Wheat.) 316, 421 (1819). 51 Although the dissent accuses us of obstructing coherent dialogue by conflating rational means review with rational basis review, the dissent fails to articulate any substantive difference between rational basis review and the standard that it proposes. Rather than fence with the ghost of the dissent’s imagined standard, we have labeled the dissent’s approach “rational basis review” in an attempt to lend it an established framework of substantive content. 19 conclude that the FMLA is rationally related to deterring sex discrimination (which the dissent apparently concludes it to be),52 we are obligated to uphold the validity of its purported abrogation of State sovereign immunity. The dissent’s approach to Eleventh Amendment jurisprudence is not supported by the law, and even as a matter of legal theory it is riddled with problems. The dissent contends that “Kimel and [City of] Boerne reaffirmed and did not limit or replace the McCulloch ‘rational means’ standard.” In reality, however, McCulloch is nowhere mentioned in Kimel, and City of Boerne merely cites McCulloch for the well-established and universally accepted truism that “[u]nder our Constitution, the Federal government is one of enumerated powers.”53 Indeed, the Court did not use the phrases ‘rational means’ or ‘necessary and proper’ even once in either of those two opinions. Simply put, McCulloch has absolutely nothing to do with the Supreme Court’s recent Eleventh Amendment jurisprudence: Chief Justice Marshall’s interpretation of the Necessary and Proper Clause was certainly a landmark decision with far-reaching implications, but it sheds no useful light on the difficult and intractable problems entailed in reconciling Congress’s enforcement powers under Section 5 of the Fourteenth 52 We note in passing that the FMLA does not directly prohibit sex discrimination at all. For example, under the FMLA it would be perfectly permissible for an employer to grant 15 weeks of leave per year to female employees while granting only 12 weeks of leave per year to males. 53 521 U.S. 507, 516 (1997). 20 Amendment with the bedrock principles of State sovereign immunity embodied in the Eleventh Amendment. Moreover, the dissent’s contention that the Supreme Court’s congruence and proportionality test amounts to nothing more than a rational basis standard of review just cannot be right. First, the Supreme Court is well accustomed to using a rational basis standard of review in testing the validity of legislation;54 if that is the only yardstick that the Court meant to apply in the context of the Eleventh Amendment, it would not have gone to the trouble of articulating a separate congruence and proportionality test. Second, neither the ADEA (the statute at issue in Kimel) nor RFRA (the statute at issue in City of Boerne) can be fairly characterized as irrational, yet the Court struck down both of those statutes after applying its congruence and proportionality test. It could not be clearer that congruence and proportionality is a considerably more stringent standard of review than is rational basis. Indeed, these two tests bear little resemblance to one another, as they are rooted in entirely separate clauses of the Constitution.55 Professor Laurence Tribe might agree with the dissent, which cites several of his pre-Kimel articles, but the support of even so prominent an academician is an inadequate 54 See, e.g., McGowan v. Maryland, 366 U.S. 420 (1961). 55 “Rational basis” review is an equal protection standard rooted in Section 1 of the Fourteenth Amendment, whereas the “congruence and proportionality” test defines the outermost limits of Congress’s enforcement powers under Section 5 of the Fourteenth Amendment. 21 substitute for rigorous adherence to recent Supreme Court precedent. At its close, the dissent argues that the legislative record compiled by Congress in enacting the FMLA contains sufficient evidence of unconstitutional discrimination by the States to support abrogation of State sovereign immunity with respect to 29 U.S.C. § 2612(a)(1)(C) and (D). Despite scouring what it admits to be nine years of legislative history, the dissent is able to point to only six statements made during congressional hearings, which, it contends, demonstrate that in enacting Subsections (C) and (D) Congress was attempting to redress a pervasive pattern of sex-based discrimination that existed in the public sector at the time that the FMLA was enacted. Even a cursory review of those six statements, however, reveals that they are not in the least probative of the question before us. Every single one of the six quotations relates solely to the issue of parental leave, an issue that is not addressed by Subsections (C) and (D) of the FMLA and that we have expressly declined to address and rule on in deciding the case before us. Further evidence of the unpersuasiveness of the six statements is the fact that one of them deals solely with discrimination in the private sector;56 one of them deplores the absence of robust parental leave policies in the public and private sectors, but without making any mention whatsoever of sex-based 56 See S.Rep. No. 103-3, at 14-15 (presenting statistics relating to parental leave for “employees working in private business” and a survey of “253 U.S. corporations”). 22 discrimination in the granting of such leave;57 a third actually lauds the public sector for making parental leave readily available to employees, contending that the public sector has set an example that the private sector should emulate;58 and a fourth, which was made during a hearing held in 1987 and which asserted that at that time —— 13 years ago —— the State of Florida granted its employees maternity leave but not paternity leave, was no longer true when the FMLA was enacted in 1993, by which time Florida had already enacted a general parental leave policy available to both sexes on a neutral basis.59 Whether the two or three remaining anecdotal and outdated statements on which the dissent is left to rely would be 57 See Parental and Medical Leave Act of 1986: Hearings on H.R. 4300 Before the Subcomm. On Labor Management Standards, 99th Cong., 30, 147 (testimony of Meryl Fran, Director of the Yale Bush Center Infant Care Leave Project, deploring the fact that “American women have no statutory right to parental leave”). 58 See Parental and Medical Leae Act of 1987: Hearings on S.249 Before the Subcomm. On Children, Family, Drugs and Alcoholism, 100th Cong., 338 (testimony of Gerald McEntee, International President, American Federation of State, County, and Municipal Employees, that “one conclusion which can be drawn is that a vast number of employees in the State and local government sector already have the right to take unpaid parental leave or maternity leave for periods in excess of 18 weeks. Ninety percent of the employees covered in the sample, or 650,000 people, already had the right to a leave of four months or more. Clearly, parental leave is a fact of life in the public sector. ... And if government at all levels can live with unpaid parental leave, then so can private industry.”). 59 See Fl. St. § 110.221 (1991) (providing parental leave “for the father or mother of a child who is born to or adopted by that parent.”). The fact that Florida changed its parental leave policy in 1991 to make leave available to parents of both sexes indicates that other testimony relied on by the dissent, stating that in 1989 13 states granted family leave to women but not to men, was similarly outdated and unreliable by the time that the FMLA was enacted in 1993. 23 sufficient to support abrogation of State sovereign immunity with respect even to legislation pertaining to parental leave is thus subject to considerable doubt: In Kimel, the Supreme Court explained that its ruling in City of Boerne was rooted in its conclusion that “Congress had uncovered only ‘anecdotal evidence’ [of discrimination by the State] that, standing alone, did not reveal a ‘widespread pattern of religious discrimination in this country.’”60 We note again, however, that the validity of the FMLA’s parental leave provisions is not at issue in this case. Today we hold only that Congress failed to present sufficient evidence of unconstitutional discrimination by the States to support abrogation of State sovereign immunity with respect to Subsections (C) and (D), both of which the dissent fails to address squarely. In fact, the dissent devotes no analysis at all to Subsection (D): Although it baldly declares that it cannot agree “that the legislative record for this provision is devoid of evidence of public sector discrimination against the temporarily disabled as this was precisely what the PDA and then the FMLA were enacted in response to,”61 the dissent does not support its disagreement by pointing to any evidence pertaining to such discrimination by the States. Indeed, as the temporarily disabled are not a 60 __ U.S. at __, 2000 WL 14165 at *13, citing City of Boerne, 521 U.S. at 531. 61 Dissent at 43 (internal quotation marks omitted). 24 constitutionally suspect class, the dissent’s own analysis would seem to indicate that Subsection (D) is entitled to substantially less deference than are the other sections of the FMLA.62 Unfortunately, the dissent’s total failure to analyze Subsections (C) and (D) individually precludes a more detailed response to the positions that it takes.63 In the end, the dissent’s citations to the legislative record only serve to reinforce our conclusion that the FMLA is not designed to prevent discrimination at all, but rather is crafted to provide employees throughout the nation with a substantive statutory right to take leave from work for family and medical reasons. The dissent has managed to find but two potentially relevant remarks —— stray ones at that —— pertaining to discrimination in the public sector, each of which was made offhand, does not appear to have been solicited by Congress, and is greatly overshadowed by the speaker’s plea that Congress enact a 62 See Dissent at 10-14 (noting that Congress is entitled to substantially less deference in enacting prophylactic legislation that is purportedly designed to prevent discrimination on the basis of classifications that are not constitutionally suspect). 63 The dissent appears to take the position that we must either uphold or strike down the FMLA in its entirety, despite the fact that only two of its four substantive provisions are at issue here. See Dissent at 29. The dissent cites no authority for its position, even though it would require breaking with both the Second and Eleventh Circuits. See Garrett, 193 F.3d 1214 (11th Cir. 1999), Hale, __ F.3d __, 2000 WL 675209 (2d Cir. 2000). Moreover, the dissent’s all-or-nothing approach would give Congress virtually unlimited authority to pass clearly unconstitutional provisions merely by tacking them onto statutes that are otherwise constitutional, a result that simply cannot be right. 25 statutory right to parental leave. In fact, in several instances the congressional testimony cited by the dissent emphasizes the paramount importance of maternity leave as distinguished from paternity leave, ironic indeed considering the dissent’s attempt to use this testimony to demonstrate that Congress’s primary concern was that family and medical leave be dispensed on a non- discriminatory basis.64 Although the dissent clearly agrees with the substantive goals that Congress was trying to achieve in enacting Subsections (C) and (D), the wisdom of individual policy decisions is irrelevant to determining the validity of congressional abrogation of State sovereign immunity. Because of the dissent’s failure to acknowledge this basic legal principle, as well as the reasons discussed above, we find the dissent unconvincing. IV Conclusion 64 See, e.g., Parental and Medical Leave Act of 1987: Hearings on S.249 Before the Subcomm. On Children, Family, Drugs and Alcoholism, 100th Cong., 365-70 (testimony of Elaine Gordon, Member of the Florida House of Representatives, stating that “[t]here must be come official commitment to acknowledging motherhood as a societal function and stating that those who combine work and childbearing shall not be penalized,” and noting that to that end she had “introduced a bill relating to maternity leave... propos[ing] to extend maternity leave beyond state employees and encompass all employees, public and private”); Parental and Medical Leave Act of 1986: Hearings on H.R. 4300 Before the Subcomm. On Labor Management Standards, 99th Cong., 30, 147 (testimony of Meryl Fran, Director of the Yale Bush Center Infant Care Leave Project, deploring the fact that “American women have no statutory right to parental leave” and making reference to a study she conducted researching the availability of parental leave to women only). 26 In light of the foregoing analysis, the district court’s denial of LDSS’s motion to dismiss must be reversed and the case remanded with instructions that both the official and the individual capacity claims against the named defendants be dismissed for lack of jurisdiction.65 REVERSED AND REMANDED, with instructions. 65 The claims brought against the defendants in their individual capacities must be dismissed for lack of subject matter jurisdiction because it is clear that the State of Louisiana is the real party in interest. See Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 101 (1984) (“The Eleventh Amendment bars a suit against state officials when the state is the real, substantial party in interest. ... [T]he general rule is that relief sought nominally against an officer is in fact against the sovereign if the decree would operate against the latter.”) (citations omitted). 27 1 DENNIS, Circuit Judge, dissenting. 2 The majority holds, incorrectly in my opinion, that the Family 3 and Medical Leave Act of 1993, 29 U.S.C. § 2601, et seq., (“FMLA”) 4 is not “appropriate legislation” by which Congress has power to 5 enforce the equal protection of the laws provision of the 6 Fourteenth Amendment and that, therefore, the FMLA does not validly 7 abrogate the Eleventh Amendment immunity barring suits by private 8 citizens against the states in federal courts. My colleagues have 9 been led into error by what I believe to be their misunderstanding 10 of Kimel v. Florida Board of Regents, 120 S.Ct. 631 (2000), City of 11 Boerne v. Flores, 521 U.S. 507 (1997), the prior Fourteenth 12 Amendment jurisprudence, and the legislative record of the FMLA. 13 For these reasons, I respectfully dissent. 14 I. 15 It is common ground in this litigation that Congress in the 16 FMLA unequivocally expressed its intent to abrogate state 17 immunities. See 29 U.S.C. §§ 2611(4)(a)(iii); 2617(a). However, 18 the majority holds that Congress did not enact the FMLA pursuant to 19 a valid exercise of power under the Fourteenth Amendment. The 20 majority bases its decision primarily on the Supreme Court’s recent 21 holding in Kimel. Kimel was decided subsequently to oral argument 22 in the present case, and the parties have not been afforded an 23 opportunity to brief us on Kimel’s meaning or effect. In the 24 absence of adversarial input, the majority looks at Boerne and all 28 28 25 of the prior jurisprudence through the wrong end of Kimel’s 26 perspective glass. 27 The majority reads Kimel as standing for two propositions that 28 would drastically reduce Congress’ enforcement power under section 29 5 of the Fourteenth Amendment.66 First, the majority views the 30 phrase “congruence and proportionality,” used in Kimel and Boerne 31 to describe appropriate § 5 legislation, as placing new, stricter 32 limits on Congress’ exercise of its Fourteenth Amendment 33 enforcement power. Second, the majority reads the “congruent and 34 proportional” phrase as supplanting the “rational means” standard 35 for measuring Congressional power announced by Chief Justice 36 Marshall in McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 421 37 (1819), and applied to legislation enacted under section 5 of the 38 Fourteenth Amendment by the Supreme Court in Ex Parte Virginia, 39 100 U.S. (10 Otto) 339 (1879) and Katzenbach v. Morgan, 384 U.S. 40 641 (1966). Accordingly, the majority would apply its version of 41 the “congruent and proportional” requirement exclusively and across 42 the board, even to § 5 legislation designed to remedy or deter 43 governmental discrimination based on race, gender, or other suspect 66 As I understand the majority opinion, it views Kimel and City of Boerne as a departure of revolutionary proportions from the Court’s precedents and doctrine of stare decisis: Congress can no longer enact any legislation to deter equal protection violations of any kind without a legislative record evincing a significant pattern of unconstitutional state discrimination, and preventive legislation designed to deter state discrimination against suspect or quasi-suspect classes is not appropriate if that legislation prohibits substantially more constitutional than unconstitutional state employment decisions or actions. 29 29 44 or quasi-suspect classification. 45 The majority, in my opinion, is mistaken on both points. 46 First, neither Kimel nor Boerne held that Congress must establish 47 an evidentiary predicate for legislation that constitutes a 48 rational means of deterring and preventing governmental 49 discrimination against persons on the bases of race or gender. The 50 Supreme Court has never suggested that Congress cannot rely on the 51 Supreme Court’s recognition of such suspect or quasi-suspect 52 classes in enacting legislation to deter violations of their 53 constitutional rights. Because Congress’ express power to 54 legislatively enforce the Equal Protection Clause of the Fourteenth 55 Amendment is concurrent with the Court’s judicial power to enforce 56 the Amendment, Congress is not required to establish an evidentiary 57 predicate independent of the Court’s decisions identifying suspect 58 classes in order to enact legislation pursuant to § 5 to protect 59 individuals from the denial of the equal protection of the laws 60 based on race, gender or other suspect classifications. 61 Second, the Supreme Court in Kimel and Boerne reaffirmed and 62 did not limit or replace the McCulloch “rational means” standard as 63 adopted by Ex Parte Virginia, Katzenbach v. Morgan, and their 64 progeny.67 Thus, “congruence and proportionality” includes or is 67 The majority’s conflation of the “rational means” standard for appropriate Congressional legislation under §5 of the Fourteenth Amendment with the “rational basis” equal protection scrutiny level is unfortunate and tends to obstruct coherent dialogue. See Maj. Op., at 19-21. The majority confuses the similar-sounding terms, “rational means” and “rational basis,”– terms which in fact denote strategically different constitutional 30 30 65 consistent with the meaning of “rational means” or “necessary and 66 proper” as defined by McCulloch, Ex Parte Virginia, Morgan, and 67 their progeny; or signifies the difference between legislation and 68 constitutional interpretation, as suggested by Boerne; or 69 recognizes the correlation between the ranges of judicial and 70 legislative powers to enforce the Equal Protection Clause on behalf 71 of suspect, quasi-suspect and non-suspect classes, as suggested by 72 Kimel; or all of the above. Assuming arguendo, however, that Kimel 73 or Boerne purports to place any new limits on Congress’ legislative 74 power, the majority errs in applying those limits to the present 75 case because the Court in Kimel made it very clear that its holding 76 does not apply to § 5 legislation designed to remedy or deter 77 governmental discrimination based on race or gender. 78 Undoubtedly, Congress is empowered by section 5 of the 79 Fourteenth Amendment to enact legislation prohibiting 80 constitutional state action if such a law is a rational means of 81 preventing or deterring unconstitutional governmental gender 82 discrimination. In the present case, the State has not attempted 83 to show that any particular governmental gender classification is 84 constitutional because it serves an important government objective. analyses. “Rational means” has been used to describe Congressional legislation under §5 of the Fourteenth Amendment that appropriately remedies or deters states’ violations of §1 of the Amendment. See Katzenach v. Morgan, 384 U.S. 641, 650-651 (1966)(“[T]he McCulloch v. Maryland standard is the measure of what constitutes ‘appropriate legislation’ under § 5 of the Fourteenth Amendment.”) The rational basis test is used to determine whether state discrimination against a non-suspect class is constitutionally infirm. See Kimel, 120 S.Ct. 631, 646 (2000). 31 31 85 Consequently, the only question in the present case is whether the 86 FMLA, by prohibiting and requiring certain constitutional state 87 employment practices, is a rational means of preventing and 88 deterring unconstitutional governmental gender discrimination and 89 is therefore appropriate section 5 legislation. I believe that it 90 is self-evident that the FMLA is a rational means of deterring 91 gender-based discrimination and that the Constitution does not 92 require that Congress buttress its enactment with any particular 93 kind of legislative record. In the alternative, however, if common 94 knowledge and the statute itself are deemed to provide insufficient 95 illumination, the legislative history and legislative records of 96 the FMLA and other legislative activity from which it stems 97 abundantly demonstrate that it is a rational means to an 98 appropriate Congressional end. 99 100 II. 101 A. 102 As I read the Supreme Court’s opinions in Kimel and Boerne, 103 they do not drastically alter or restrict Congress’s authority 104 under section 5 of the Fourteenth Amendment to enforce the equal 105 protection of the laws provision of section 1 of the amendment as 106 the majority contends. The majority, in effect, concludes that 107 Kimel imposes a kind of dual probability-of-success and 108 substantial-evidence test for determining whether an act of 109 Congress passes muster as appropriate § 5 legislation. The 32 32 110 majority states that: “A two part test [for determining whether 111 legislation is ‘congruent and proportional’] emerges from Kimel[:]” 112 [1]“ At the first step, we...determin[e] what type of 113 constitutional violation the statute under review is designed to 114 prevent.” [2] “[T]he legislation will not be considered congruent 115 and proportional[,]” and therefore, not appropriate, if: [a] “[the] 116 legislation prohibits substantially more state employment decisions 117 and practices than would likely be held unconstitutional under the 118 applicable equal protection standard,” or [b] “Congress fails to 119 include in the legislative record of a prophylactic statute any 120 evidence of a significant pattern of unconstitutional 121 discrimination by the States[.]” Maj.Op., at 5-7 (internal 122 quotation marks, brackets and footnotes omitted). I do not believe 123 that the majority’s two part probability-of-success and 124 substantial-evidence test “emerges from” or reasonably can be drawn 125 from Kimel. 126 Kimel affirms that “Congress’ § 5 power is not confined to the 127 enactment of legislation that merely parrots the precise wording of 128 the Fourteenth amendment. Rather Congress’ power ‘to enforce’ the 129 Amendment includes the authority both to remedy and to deter 130 violation of rights guaranteed thereunder by prohibiting a somewhat 131 broader swath of conduct, including that which is not itself 132 forbidden by the Amendment’s text.” Kimel, 120 S.Ct. at 644 133 (citing Boerne, 521 U.S. at 518) (quoting Fitzpatrick v. Bitzer 427 134 U.S. 455 (1976)); see also Laurence H. Tribe, American 33 33 135 Constitutional Law § 5-16, at 949 (3d. Ed. 1999). It is true that 136 the Boerne Court stated that Congress does not have “the power to 137 decree the substance of the Fourteenth Amendment’s restrictions on 138 the States” and that“[t]he power to interpret the Constitution in 139 a case or controversy remains in the Judiciary.” Boerne 521 U.S. 140 at 519, 524. Nevertheless, the Court also made clear that under 141 section 5 Congress has broad freedom of choice or action in 142 determining the boundary between making a substantive change in the 143 constitution and an act of enforcement legislation, whether 144 remedial or deterrent. Id. at 518-19 (citing South Carolina v. 145 Katzenbach, 383 U.S. 301, 326 (1966)). 146 Militating against the majority’s notion of imposing a kind of 147 probability-of-success/substantial-evidence test upon Congress, 148 Kimel endorses Boerne’s reaffirmation of Congressional autonomy: 149 “As a general matter, it is for Congress to determine the method by 150 which it will reach a decision” as to the risk of Fourteenth 151 Amendment violations and the means by which particular evils should 152 be prevented or remedied. Boerne, 521 U.S. at 531-32; see also 153 Kimel, 120 S.Ct. at 644. The Court did not in either case lay down 154 any probability of success ratio, procedural method, evidentiary 155 rule or burden of proof standard for Congress to follow in 156 performing its separate and independent legislative function. The 157 Court did not presume to treat Congress as an inferior court or 158 administrative tribunal; to the contrary, Boerne and Kimel merely 159 illustrate that when Congress’ purpose is ambiguous, as it is apt 34 34 160 to be in section 5 legislation concerned with governmental 161 discrimination against non-suspect classes or with generally 162 applicable state laws imposing merely incidental burdens on 163 religion, the Court will examine the legislative history and record 164 to determine Congress’ objective, just as it does when the meaning 165 of any Congressional act is vague or ambiguous. Thus, Kimel’s 166 commentary on the ADEA legislative record and history is directed 167 toward judicial review of section 5 legislation aimed at non- 168 suspect class discrimination, and is not intended as an improper 169 judicially imposed blanket stricture upon Congress’ legislative 170 process itself: 171 That the ADEA prohibits very little conduct likely to be 172 held unconstitutional, while significant, does not alone 173 provide the answer to our § 5 inquiry. Difficult and 174 intractable problems often require powerful remedies, and 175 we have never held that § 5 precludes Congress from 176 enacting reasonably prophylactic legislation. Our task 177 is to determine whether the ADEA is in fact just such an 178 appropriate remedy [to a state act of non-suspect 179 discrimination so irrational as to be unconstitutional 180 even under a rational basis review] or, instead, merely 181 an attempt to substantively redefine the States’ legal 182 obligations with respect to age discrimination. One 183 means by which we have made such a determination is by 184 examining the legislative record containing the reasons 185 for Congress’ action. 186 120 S.Ct. at 648. Indeed, Kimel reiterates “that lack of support 187 is not determinative of the § 5 inquiry.” Id. (citing Florida 188 Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 119 189 S.Ct. 2199, 2209-2210 (1999) (“lack of support in the legislative 190 record is not determinative.”); Boerne, 521 U.S. at 531-532 (“lack 191 of support in the legislative record...is not RFRA’s most serious 35 35 192 shortcoming. Judicial deference, in most cases, is based not on 193 the state of the legislative record Congress compiles but ‘on due 194 regard for the decision of the body constitutionally appointed to 195 decide.’”) (quoting Oregon v. Mitchell, 400 U.S. 112, 207 (1970) 196 (Harlan, J.)); Boerne also reiterates that it did not intend “to 197 say, of course, that § 5 legislation requires...egregious 198 predicates.” Id. at 533; see also Lopez v. Monterey County, 525 199 U.S. 266 (1999)(no examination of legislative record by 8-1 200 majority upholding a deterrent provision of the Voting Rights Act 201 as appropriate legislation under § 2 of the Fifteenth Amendment); 202 id. at 295 (Thomas, J. dissenting). 203 The majority clearly misreads Kimel as mandating that Congress 204 use a judicially prescribed evidence and fact gathering methodology 205 or compile a judicially prescribed evidentiary predicate in 206 enacting any and every measure of section 5 legislation. Rather 207 than limit Congress’ discretion, however, Kimel reaffirms that “§ 208 5 is an affirmative grant of power to Congress” and that “‘[i]t is 209 for Congress in the first instance to ‘determin[e] whether and what 210 legislation is needed to secure the guarantees of the Fourteenth 211 Amendment,’ and its conclusions are entitled to much deference.’” 212 Kimel, 120 S.Ct. 644. Thus, nothing in Kimel restricts Congress’ 213 freedom to choose whether to take evidence, conduct hearings, seek 214 experts’ opinions, or to rely on history, experience with previous 215 legislation, notice of legislative facts, common knowledge, common 216 sense, or a combination of such factors. The Court has not and 36 36 217 cannot legitimately impose any set form of judicially made 218 procedures, standards, or quantum of evidence requirements upon 219 Congress. Congress is a unique institution, separate and 220 independent from the judicial branch and is not required by the 221 constitution to operate like courts or follow the rules governing 222 adversarial litigation. 223 From the text of Kimel itself and from the context and 224 underpinnings of its analysis, it is evident that the majority is 225 mistaken in concluding that Kimel narrowed the scope of Congress’ 226 section 5 legislative enforcement powers or established a new 227 blanket requirement of adequate legislative records for all section 228 5 enforcement legislation. Rather, in my opinion, Kimel does not 229 attempt to make any new law but instead represents a 230 straightforward application of the well-settled principles 231 established by the Court’s prior jurisprudence.68 68 Accordingly, I disagree with the majority’s suggestion that Kimel calls into question this circuit’s recognition of the abrogation of Eleventh Amendment immunity by the ADA under section 5 of the Fourteenth Amendment in Coolbaugh v. State of Louisiana, 136 F.3d 430 (5th Cir. 1998). Compared to the FMLA, the ADA presented a more debatable abrogation question, as it is designed to remedy and deter discrimination on the basis of disability or handicap, rather than race or gender. However, Coolbaugh is binding on the present panel, regardless of the majority’s predilections. See Neinast v. Texas, ___ F.3d ___, 2000 WL 827920 (5th Cir. 2000) (post-Kimel case recognizing Coolbaugh as binding). Moreover, reasonable jurists in other circuits do not read Kimel as auguring Coolbaugh’s demise. See Kilcullen v. New York State Dept. of Labor, 205 F.3d 77 (2nd Cir. 2000) (post-Kimel case finding the ADA properly enacted under section 5); Erickson v. Board of Governors of State Colleges and Universities for Northeastern Illinois University, 207 F.3d 945, 953 (7th Cir. 2000) (Wood, J., dissenting). Consequently, it would be more appropriate for the majority to consider how Coolbaugh might be reconciled with Kimel, 37 37 232 B. 233 Besides misconstruing Kimel and Boerne as placing new limits, 234 stricter than the “rational means” standard, on Congress’ 235 Fourteenth Amendment enforcement powers, the majority overlooks the 236 significant difference noted by these cases between a Congressional 237 act designed to deter governmental equal protection violations 238 against suspect or quasi-suspect classes and other types of 239 preventive legislation purportedly enacted pursuant to the 240 enforcement sections of the Reconstruction Amendments. Kimel 241 explicitly distinguished governmental discrimination on the basis 242 of age from state action based on race, gender, or other suspect 243 classifications: 244 Age classifications, unlike governmental conduct based on 245 race or gender, cannot be characterized as ‘so seldom 246 relevant to the achievement of any legitimate state 247 interest that laws grounded in such considerations are 248 deemed to reflect prejudice and antipathy.’ Cleburne v. 249 Cleburne Living Center, Inc., 473 U.S. 432, 440 (1985). 250 Older persons, again, unlike those who suffer 251 discrimination on the basis of race or gender, have not 252 been subjected to a ‘history of purposeful unequal 253 treatment.’ Murgia, supra, at 313, (quoting San Antonio 254 Independent School Dist. v. Rodriguez, 411 U.S. 1, 28 255 (1973)). Old age also does not define a discrete and 256 insular minority because all persons, if they live out 257 their normal life spans, will experience it. 258 Accordingly, as we recognized in Murgia, Bradley, and 259 Gregory, age is not a suspect classification under the 260 Equal Protection Clause. See, e.g., Gregory, supra, at 261 470; Bradley, supra, at 97; Murgia, supra, at 313-314. 262 States may discriminate on the basis of age without 263 offending the Fourteenth Amendment if the age 264 classification in question is rationally related to a 265 legitimate state interest. The rationality commanded by 266 the Equal Protection Clause does not require States to 267 match age distinctions and the legitimate interests they rather than abandon Coolbaugh prematurely. 38 38 268 serve with razorlike precision. As we have explained, 269 when conducting rational basis review ‘we will not 270 overturn such [government action] unless the varying 271 treatment of different groups or persons is so unrelated 272 to the achievement of any combination of legitimate 273 purposes that we can only conclude that the 274 [government's] actions were irrational.’ Bradley, supra, 275 at 97. In contrast, when a State discriminates on the 276 basis of race or gender, we require a tighter fit between 277 the discriminatory means and the legitimate ends they 278 serve. See, e.g., Adarand Constructors, Inc. v. Pena, 279 515 U.S. 200, 227 (1995) (‘[Racial] classifications are 280 constitutional only if they are narrowly tailored 281 measures that further compelling governmental 282 interests’); Mississippi Univ. for Women v. Hogan, 458 283 U.S. 718, 724 (1982) (holding that gender classifications 284 are constitutional only if they serve ‘important 285 governmental objectives and ... the discriminatory means 286 employed’ are ‘substantially related to the achievement 287 of those objectives’ (citation omitted)). 288 120 S.Ct. at 645-646 (citations partially omitted). 289 In other words, Kimel can be read to admonish that: Unlike age 290 or other classifications subject to rational basis review, 291 governmental conduct based on race or gender is deemed to reflect 292 prejudice and antipathy because it is so seldom relevant to the 293 achievement of any legitimate state interest. Persons who suffer 294 discrimination on the basis of race or gender have been subjected 295 to a history of purposeful unequal treatment. A suspect class 296 defines a discrete and insular minority. Race and gender are 297 suspect classes under the Equal Protection Clause. See id. Racial 298 classifications are constitutional only if they are narrowly 299 tailored measures that further compelling governmental interests. 300 Gender classifications are constitutional only if they serve 301 important governmental objectives and the discriminatory means are 302 substantially related to the achievement of those objectives. See 39 39 303 id. at 646. 304 Moreover, Kimel demonstrates that the history of States’ 305 unequal treatment of persons based on race or gender clearly 306 justifies the strongest exercise of powers by the Court and the 307 Congress to enforce the Fourteenth Amendment equal protection 308 guarantee. Accordingly, there is an important corollary between 309 the Court’s strict scrutiny of state action based on suspect 310 classifications and Congress’ vast power to adopt strong measures 311 to remedy and deter governmental discrimination against persons 312 based on race or gender. 313 In San Antonio Independent School Dist.v. Rodriquez, 411 U.S. 314 1, 28 (1973), a case cited as instructive by Kimel, the Court 315 identified a suspect class as one “saddled with such disabilities, 316 or subjected to such a history of purposeful unequal treatment, or 317 relegated to such a position of political powerlessness as to 318 command extraordinary protection from the majoritarian political 319 process.” The Court in Kimel indicated that age, unlike race or 320 gender, is not a suspect classification warranting either judicial 321 strict scrutiny or section 5 legislation that presumes governmental 322 action based on every age classification to be unconstitutional. 323 For example, the Court in Kimel stated: “Older persons...unlike 324 those who suffer discrimination on the basis of race or gender, 325 have not been subjected to a “history of purposeful unequal 326 treatment.” 120 S.Ct., at 645. “The [ADEA], through its broad 327 restriction on the use of age as a discriminating factor, prohibits 40 40 328 substantially more state employment decisions than would likely be 329 held unconstitutional under the applicable equal protection, 330 rational basis standard.” Id. at 647. “Measured against the 331 rational basis standard of our equal protection jurisprudence, the 332 ADEA plainly imposes substantially higher burdens on state 333 employers[, imposing] substantive requirements...at a level akin to 334 our heightened scrutiny cases under the Equal Protection Clause.” 335 Id. at 648. “[Thus,] the ADEA’s protection extends beyond the 336 requirements of the Equal Protection Clause.” Id. “Congress, 337 through the ADEA, has effectively elevated the standard for 338 analyzing age discrimination to heightened scrutiny.” Id. 339 In contrast, governmental action based on race or gender 340 classifications is presumed to be unconstitutional, warrants 341 heightened or strict judicial scrutiny, and places the burden of 342 justification entirely on the state. With respect to sex 343 discrimination, the Supreme Court in United States v. Virginia, 518 344 U.S. 515, 531 (1996)(VMI Case) held: “Parties who seek to defend 345 gender-based government action must demonstrate an ‘exceedingly 346 persuasive justification’ for that action.” (citing J.E.B. v. 347 Alabama ex rel. T.B., 511 U.S. 127, 136-137, n. 6 (1994); 348 Mississippi Univ. for Women, 458 U.S. at 724). Furthermore, the 349 Court in the VMI case noted that: “Without equating gender 350 classifications, for all purposes, to classifications based on race 351 or national origin, the Court, in post-Reed decisions, has 352 carefully inspected official action that closes a door or denies 41 41 353 opportunity to women (or to men).” Id. at 532 (citing J.E.B., 511 354 U.S. at 152 (Kennedy, J., concurring) (case law evolving since 1971 355 “reveal[s] a strong presumption that gender classifications are 356 invalid”)). “To summarize the Court’s current directions for cases 357 of official classification based on gender[,]” the Court in the VMI 358 case stated: “Focusing on the differential treatment or denial of 359 opportunity for which relief is sought, the reviewing court must 360 determine whether the proffered justification is exceedingly 361 persuasive. The burden of justification is demanding and it rests 362 entirely on the State. The State must show at least that the 363 challenged classification serves important governmental 364 objectives.” Id. at 532-533 (internal quotations, citations and 365 brackets omitted). 366 As Kimel suggests, when the Supreme Court identifies a 367 government classification of persons as suspect or quasi-suspect, 368 it effectively broadens the scope of Congressional power to remedy 369 or deter governmental discrimination based on that classification. 370 See Kimel, 120 S.Ct. at 646. Congress may rely on the presumption 371 that state action based on the suspect classification is 372 unconstitutional in enacting legislation that outlaws 373 constitutional conduct as a rational means of deterring such 374 presumptively unconstitutional governmental conduct.69 Thus, 69 Governmental gender classifications are presumptively invalid. E.g., United States v. Virginia, 518 U.S. at 532 (citing J.E.B. v. Alabama ex rel. T.B., 511 U.S 127, 152 (Kennedy, J. concurring)). Section 5 legislation outlawing constitutional conduct to prevent or deter violations of suspect or quasi-suspect 42 42 375 Congress is not required to compile an evidentiary legislative 376 record to prove that a suspect class previously identified by the 377 Supreme Court is still “saddled with such disabilities, or 378 subjected to such a history of purposeful unequal treatment, or 379 relegated to such a position of political powerlessness as to 380 command extraordinary protection from the majoritarian political 381 process.” Rodriguez 411 U.S. at 28. That the class in question is 382 marked sufficiently by the traditional indicia that identify a 383 suspect class has already been established by the Supreme Court’s 384 decision. 385 In fact, Kimel’s recognition of the parallel or kinship classes’ rights has consistently been upheld. See, e.g., Fitzpatrick v. Bitzer, 427 U.S. 445, 453, n.9 (1976)(federal court action under Title VII by present and retired male employees of Connecticut against the state, based on governmental gender discrimination in state retirement plan, was not precluded by the Eleventh Amendment. It was undisputed that Congress enacted Title VII, which grants remedial and deterrent protection to suspect and quasi-suspect classes, and its 1972 Amendments extending coverage to the States as employers, pursuant to its power under § 5 of the Fourteenth Amendment.); Katzenbach v. Morgan, 384 U.S. 641, 652 (1966)(upholding § 4(e) of the Voting Rights Act of 1965 as appropriate legislation under § 5 of the Fourteenth Amendment “to secure for the Puerto Rican community residing in New York nondiscriminatory treatment by government–both in the imposition of voting qualifications and the provision or administration of governmental services, such as public schools, public housing and law enforcement.”); Lopez v. Monterey County, 525 U.S. 266 (1999)(Hispanic voters successfully challenged unprecleared ordinance changing methods for electing county judges enacted by Monterey County, which was designated a jurisdiction covered by the preclearance requirement, § 5 of Voting Rights Act of 1965, although the election change was required by state law, California itself was not a covered jurisdiction, and, according to Justice Thomas’ dissent, id., at 295-296, there had “been no legislative finding that the State of California has ever intentionally discriminated on the basis of race, color, or ethnicity with respect to voting.”) 43 43 386 between the powers and duties of the Court and those of the 387 Congress to enforce the equal protection clause against 388 governmental discrimination on the basis of race or gender with 389 heightened stringency was anticipated by at least three Circuit 390 Courts of Appeals in interpreting Boerne. See Mills v. Maine, 118 391 F.3d 37 (1st Cir. 1997); Abril v. Commonwealth of Virginia, 145 F.3d 392 182 (4th Cir. 1998); Velasquez v. Frapwell, 160 F.3d 389, 391 (7th 393 Cir. 1998) vacated in part 165 F.3d 593 (7th Cir. 1999). 394 The Kimel Court recognized that even governmental 395 discrimination based on classifications subject only to rational 396 basis judicial review can present “[d]ifficult and intractable 397 problems ...requir[ing] powerful remedies” that allow Congress 398 under § 5 to enact “reasonably prophylactic legislation.” Kimel, 399 120 S.Ct. at 648. Further, such legislation will upheld when the 400 Court can determine that the act “is in fact just such an 401 appropriate remedy” by, for example, “examining the legislative 402 record containing the reasons for Congress’ action.” Id. Thus, 403 the Court in Kimel did not impose a blanket evidentiary or proof 404 requirement upon Congress’ section 5 powers; instead, the Court 405 examined the ADEA’s legislative record in Kimel only to determine 406 whether that act, which did not address state discrimination on the 407 basis of a suspect classification, was in fact an appropriate 408 remedy for a state act of discrimination against a non-suspect 409 class that was so irrational as to be a denial of equal protection 410 under the rational basis standard of review. 44 44 411 Accordingly, I believe that the majority misreads Kimel as 412 defining a blanket test for all section 5 legislation. The holding 413 in Kimel clearly was not intended to apply to statutes which 414 prohibit constitutional behavior as a rational means to deter 415 unconstitutional discrimination against a suspect or quasi-suspect 416 class. 417 III. 418 To determine whether the FMLA is appropriate section 5 419 legislation, the majority errs by relying upon a superficial 420 reading of the latest several cases, which as discussed supra did 421 not alter the section 5 analysis in the present case, rather than 422 properly examining the statute within the larger framework of the 423 entire body of jurisprudence regarding constitutional grants of 424 both legislative and judicial powers to enforce the equal 425 protection of laws provisions of the Fourteenth and Fifteenth 426 Amendments against governmental action based on suspect 427 classifications. 428 Section 5 of the Fourteenth Amendment is a congressional 429 enforcement clause virtually identical to those found in the 430 Thirteenth, Fifteenth, Eighteenth, Nineteenth, Twenty-third, 431 Twenty-fourth, and Twenty-sixth Amendments. To determine if 432 Congress is acting pursuant to its enforcement clause powers, we 433 look to whether the act is a rational means to an end that is 434 comprehended by the underlying constitutional amendment. See, 45 45 435 e.g., South Carolina v. Katzenbach, 383 U.S. at 324, 326 (upholding 436 Voting Rights Act of 1965 under the Fifteenth Amendment's 437 enforcement clause); James Everard’s Breweries v. Day, 265 U.S. 438 545, 558-59, 563 (1924) (upholding Supplemental Prohibition Act of 439 1921 under the Eighteenth Amendment’s enforcement clause); Mills, 440 118 F.3d at 44; Velasquez, 160 F.3d at 391.70 441 In Ex Parte Virginia, 100 U.S.(10 Otto) 339(1879), the Supreme 442 Court interpreted Congress’ power to enact “appropriate 443 legislation” under the Civil War Amendments broadly, in line with 444 McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 421 (1819), 445 concluding that “[w]hatever legislation is...adapted to carry out 446 the objects the amendments have in view, whatever tends to enforce 447 submission to the prohibitions they contain, and to secure to all 448 persons the enjoyment of perfect equality of civil rights and the 449 equal protection of the laws against state denial or invasion, if 450 not prohibited, is brought within the domain of congressional 451 power.” Id. at 345-346. 452 In Katzenbach v. Morgan, 384 U.S. 641 (1966), the Supreme 453 Court held that § 5 of the Fourteenth Amendment “is a positive 454 grant of legislative power authorizing Congress to exercise its 70 See also Laurence H. Tribe, American Constitutional Law, § 5-17, at 959-960 (3rd ed. 1999) [hereinafter Tribe]: “Katzenbach v. Morgan and all its progeny spanning nearly 34 years by the turn of the century, have now settled beyond question that, in order to enforce § 1 of the Fourteenth Amendment, Congress may, acting pursuant to §5, outlaw practices that are not themselves violations of § 1 in any sense — provided one can show that outlawing those practices is a rational way to deter or to remedy actions that would violate § 1.” (Footnote and emphasis omitted). 46 46 455 discretion in determining whether and what legislation is needed to 456 secure the guarantees of the Fourteenth Amendment.” Id. at 651. 457 In particular, the Court determined that a Congressional enactment 458 is “appropriate legislation” under section 5 for Equal Protection 459 purposes if: [1] “under the McCulloch v. Maryland standard, [it] 460 may be regarded as an enactment to enforce the Equal Protection 461 Clause, [2] it is plainly adapted to that end and [3] it is not 462 prohibited by but is consistent with the letter and spirit of the 463 constitution.” Id. at 651 (footnote and internal quotations 464 omitted). 465 Consequently, under McCulloch, Ex parte Virginia, Katzenbach 466 v. Morgan and their progeny Congress may, when acting pursuant to 467 §5 to enforce §1 of the Fourteenth Amendment, “outlaw practices 468 that are not themselves violations of § 1 in any sense—provided one 469 can show that outlawing those practices is a rational way to deter 470 or to remedy actions that would violate § 1.” See Tribe, supra 471 n.3. As noted above, rather than being limited, the well settled 472 principle that Congress has the power to prohibit conduct which is 473 not itself unconstitutional as a rational means of preventing or 474 deterring violations of the Fourteenth Amendment was recognized and 475 reaffirmed by both Kimel and Boerne. See also Lopez, 525 U.S. at 476 282 (post-Boerne case reaffirming the well established principles 477 that (1) “the Reconstruction Amendments by their nature contemplate 478 some intrusion into areas traditionally reserved to the States” and 479 that (2) “legislation which deters or remedies constitutional 47 47 480 violations can fall within the sweep of Congress’ enforcement power 481 even if in the process it prohibits conduct which is not itself 482 unconstitutional and intrudes into legislative spheres of autonomy 483 previously reserved to the states”). 484 A number of distinguished jurists applying the Katzenbach v. 485 Morgan test, as interpreted by Fitzpatrick, have expressly or 486 implicitly adopted the view that section 5 legislation designed to 487 remedy, deter or prevent denial of equal protection of the laws to 488 a suspect or quasi-suspect class will be deemed appropriate if the 489 Court can see that it is a rational means of furthering that 490 purpose, as the risk that any differentiation on such basis would 491 be unconstitutional is significant. See, e.g., Mills, 118 F.3d at 492 44; Abril, 145 F.3d at 187, n.11; Velasquez, 160 F.3d at 391; 493 Corpus v. Estelle, 605 F.2d 175, 180 (Wisdom, J.). This idea is 494 clearly implied by, or reasonably inferred from, the Court’s 495 opinion in Kimel. 496 The theory is bolstered by the Court’s approval of several 497 important civil rights measures designed to prevent or deter 498 unconstitutional government discrimination based on race or sex by 499 outlawing constitutional government actions. See,e.g., Fitzpatrick, 500 427 U.S. at 456 (affirming that Title VII abrogated the States’ 501 Eleventh Amendment immunity with regards to sex discrimination 502 including disparate effects inequality in employment); South 503 Carolina v. Katzenbach, 383 U.S. at 324 (upholding under the 504 Fifteenth Amendment, certain enforcement provisions of the Voting 48 48 505 Rights Act of 1965 designed to both remedy and deter governmental 506 race discrimination in voting); Katzenbach v. Morgan, 384 U.S. at 507 652(upholding the Voting Rights Act provision that banned otherwise 508 valid English language requirement for voting as appropriate 509 legislation enforcing the Equal Protection Clause of the Fourteenth 510 Amendment); Lopez, 525 U.S. at 282 (upholding the Voting Rights 511 Act’s application of pre-clearance requirements against partially 512 covered state governments as appropriate legislation deterring 513 violations of the Fifteenth Amendment by county governments at the 514 direction of the state). 515 Accordingly, unlike the majority, I do not believe that the 516 Constitution or the Supreme Court’s decisions require Congress to 517 cite specific evidence of actual constitutional violations when the 518 evil it seeks to remedy, deter or prevent is governmental 519 discrimination against persons based on race, gender or other 520 characteristics that the Supreme Court has recognized as marking 521 a group as a suspect class. In the judicial enforcement of the 522 Equal Protection Clause, a valid claim of governmental 523 discrimination against a suspect class calls for a shifting of the 524 burden of production and persuasion to the State to prove that the 525 legislation “must serve a compelling government interest, and must 526 be narrowly tailored to further that interest.” See Adarand 527 Constructors, Inc. v. Pena, 515 U.S. 200, 235 (1995). If the 528 quasi-suspect classification of gender is involved, the “burden of 529 justification is demanding and it rests entirely on the state . . 49 49 530 . [to] show at least that the challenged classification serves 531 important governmental objectives.” VMI Case, supra, at 532-533. 532 Consequently, when Congress is exercising its concurrent power 533 and duty to enforce the Equal Protection Clause of the Fourteenth 534 Amendment on behalf of a group which has been identified as a 535 suspect or quasi-suspect class by the Supreme Court, Congress is 536 not required to prove past or potential governmental discrimination 537 against that class before proceeding to enact rational means of 538 remedying, preventing or deterring the risk of future violations of 539 the constitutional rights of members of that suspect class. As 540 discussed supra, by definition, a suspect class is one which the 541 Supreme Court has determined to have been subjected to both current 542 and historical discriminatory treatment. See, e.g., Plyler v. Doe, 543 457 U.S. 202, 216 n.14 (1982); Rodriguez, 411 U.S. at 28; see also 544 Mark Strasser, Suspect Classes and Suspect Classifications: On 545 Discriminating, Unwittingly or Otherwise, 64 Temp.L.Rev. 937 546 (1991). 547 Thus, it is possible for a court to determine that Congress 548 was acting pursuant to section 5 of the Fourteenth Amendment to 549 prevent or deter violations of §1 of the Amendment without Congress 550 having identified any specific evidence of race or gender 551 discrimination by the States, if a court can ascertain that the 552 measure is a rational means adopted to deter or prevent 553 discrimination against suspect classes. While evidence of specific 554 past constitutional violations against members of a suspect class 50 50 555 may well help a court to see that deterrent legislative means are 556 rational, it is not always necessary that Congress have developed 557 such evidence. See, e.g., Lopez, 525 U.S. at 282; Kilcullen v. New 558 York State Dept. of Labor, 205 F.3d 77, 80 n.6 (2nd Cir. 2000) 559 (post-Kimel case holding “that courts may look beyond the 560 information in the legislative record in assessing whether a 561 statute is a valid exercise of Congress’s § 5 powers.”); 562 Hundertmark v. State of Florida D1ept. of Transportation, 205 F.3d 563 1272, 1276 (11th Cir. 2000) (post-Kimel case holding that under the 564 Equal Pay Act, “[w]hile it is true that Congress has not made 565 similar findings with respect to wage discrimination in the public 566 sector, such findings are not fatal...”). This is consistent with 567 the Supreme Court’s continuous support of Congress’ ability to 568 enact broad prophylactic legislation to prevent race or gender 569 discrimination. See Kimel, 120 S.Ct. at 648; see also Mills, 118 570 F.3d at 47.71 571 For example, the Court and this circuit have held, without 572 requiring specific proof of pervasive constitutional violations, 573 that Congress may, under section 5, deter unconstitutional 71 This is also consistent with the fact that the Supreme Court has never held that a statute intended to remedy race or sex discrimination was not enacted pursuant to section 5 of the Fourteenth Amendment. Compare Kimel, 120 S.Ct. at 649; Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U.S. 627 (1999) (holding the Patent Remedy Act not enacted pursuant to section 5); Boerne, 521 U.S. at 531 (holding the Religious Freedom Restoration Act not enacted pursuant to section 5) with Fitzpatrick v. Bitzer, 427 U.S. 445 (1976) (holding Title VII of the Civil Rights Act was enacted pursuant to section 5). 51 51 574 discrimination against suspect classes by outlawing constitutional, 575 non-intentional discrimination against suspect classes in the 576 workplace,72 banning constitutional literacy tests,73 banning 577 constitutional English language requirements for students educated 578 only in Spanish in American schools,74 imposing a non- 579 constitutionally mandated requirement of pre-clearance for changes 72 See Fitzpatrick, 427 U.S. at 456. Although the Constitution does not prohibit non-intentional acts that disparately impact suspect classes, Washington v. Davis, 426 U.S. 229 (1976), Title VII does. Thus, the Supreme Court has already once found that Congress is acting pursuant to section 5 when outlawing broad swaths of conduct that are not unconstitutional as a means to deter unconstitutional discrimination on the basis of race or sex. See Cole, 1997 Sup.Ct.Rev. at 45. This circuit has recently reaffirmed this holding. See Ussery v. Louisiana, 150 F.3d 431, 434 (5th Cir. 1998). 73 See Oregon v. Mitchell, 400 U.S. 112 (1970); South Carolina v. Katzenbach, 383 U.S. at 336. The Court in Boerne specifically cited passages from South Carolina v. Katzenbach that support Congress’ ability to enact legislation based on Congress’ rational belief that such legislation would deter discrimination without specific proof that such discrimination had occurred. Boerne, 521 U.S. at 526 (“Congress could have determined that racial prejudice is prevalent throughout the Nation, and that literacy tests unduly lend themselves to discriminatory application, either conscious or unconscious") (opinion of Harlan, J.); ("[T]here is no question but that Congress could legitimately have concluded that the use of literacy tests anywhere within the United States has the inevitable effect of denying the vote to members of racial minorities whose inability to pass such tests is the direct consequence of previous governmental discrimination in education") (opinion of Brennan, J.); ("[N]ationwide [suspension of literacy tests] may be reasonably thought appropriate when Congress acts against an evil such as racial discrimination which in varying degrees manifests itself in every part of the country") (opinion of Stewart, J.) (internal citations omitted). 74 Katzenbach v. Morgan, 384 U.S. at 651. 52 52 580 in voting standards,75 and granting non-constitutionally mandated 581 attorney’s fees to parties bringing victorious claims under the 582 Civil Rights Act.76 Thus, in this respect I agree with Judge 583 Posner, who stated in interpreting this power that Congress can 584 believe those who “constitute a historically disadvantaged 585 (‘suspect’) class . . . might be thought in need of special 586 protections -- of a glacis in front of the core [constitutional] 587 prohibitions -- in order to make those prohibitions fully 588 effective.” Velasquez, 160 F.3d at 391. 589 Turning to an analysis of the FMLA in light of the foregoing 590 principles, I first emphatically disagree with the majority’s 591 piecemeal, fragmented approach to a determination of whether the 592 statute is a congruent, proportional and rational means to prevent 593 and deter governmental and private gender based discrimination. 594 The FMLA is a comprehensive, reticulated statute that prohibits and 595 requires a synergism of constitutional employment practices as a 596 rational means of deterring the difficult and intractable evils of 597 governmental and private gender based discrimination in employment. 598 Although a principal goal of the FMLA is to deter sex 599 discrimination against male and female employees in granting leave 600 time, the statute also addresses a complex of inextricably related 75 See Lopez, 525 U.S. at 282; id. at 295 (Thomas, J., dissenting) (noting that the Court did so without requiring specific proof in the legislative record); City of Rome v. United States, 446 U.S. 156 (1980). 76 See Corpus, 605 F.2d at 180. 53 53 601 issues and side effects, such as, gender discrimination based on 602 sexual stereotypes, counterbalancing of perceived inequities and 603 incentives to discriminate, and the ramifications of the 604 legislation for children and families. As the majority concedes, 605 it has no authority to support its atomistic interpretative 606 methodology by which it parses the statute into subsections, 607 examines each in isolation, and requires that each be based on its 608 own separate evidentiary predicate. Proceeding as the proverbial 609 blind men examining an elephant’s parts my colleagues fail to 610 discover the true nature of the creature as a whole. As discussed 611 infra, the remedies implemented by the FMLA are not distinct, but 612 rather were found interdependently necessary as a whole to 613 effectuate Congress’ stated purpose to deter and prevent 614 unconstitutional discrimination. 615 The FMLA undoubtedly was enacted to deter or prevent 616 unconstitutional gender discrimination against employees by both 617 governmental and private employers. Section 2601 of the FMLA lists 618 the findings and purposes of the FMLA related to gender 619 discrimination by public and private employers: 620 (a) Congress finds that: 621 * * * 622 (5) due to the nature of the roles of men and 623 women in our society, the primary 624 responsibility for family caretaking often 625 falls on women, and such responsibility 626 affects the working lives of women more than 627 it affects the working lives of men; and 628 (6) employment standards that apply to one 54 54 629 gender only have serious potential for 630 encouraging employers to discriminate against 631 employees and applicants for employment who 632 are of that gender. 633 * * * 634 (b) It is the purposes of this Act 635 (1) to balance the demands of the workplace 636 with the needs of families, to promote the 637 stability and economic security of families, 638 and to promote national interests in 639 preserving family integrity; 640 (2) to entitle employees to take reasonable 641 leave for medical reasons, for the birth or 642 adoption of a child, and for the care of a 643 child, spouse, or parent who has a serious 644 health condition; 645 * * * 646 (4) to accomplish the purposes described in 647 paragraphs (1) and (2) in a manner that, 648 consistent with the Equal Protection Clause of 649 the Fourteenth Amendment, minimizes the 650 potential for employment discrimination on the 651 basis of sex by ensuring generally that leave 652 is available for eligible medical reasons 653 (including maternity-related disability) and 654 for compelling family reasons, on a gender- 655 neutral basis. 656 (5) to promote the goal of equal employment 657 opportunity for women and men, pursuant to 658 such clause. 659 29 U.S.C. § 2601(a)(5)-(6), (b)(1)-(2), (b)(4)-(5); see also S.Rep. 660 No. 103-3 at 16 (1993) (“A law providing special protection to 661 women or any defined group . . . runs the risk of causing 662 discriminatory treatment. S.5, by addressing the needs of all 663 workers, avoids such a risk.”) and H.R.Rep. No. 103-8(I), at 29 664 (1993). It is thus clear that one principal purpose of the FMLA 55 55 665 was to act as legislation under section 5 of the Fourteenth 666 Amendment to prevent or deter sex discrimination in the granting of 667 family leave by both private and public employers. 668 Because a gender classification, as a basis for state action, 669 is quasi-suspect under the Equal Protection Clause and calls for 670 heightened scrutiny,77 the sole inquiry under the Supreme Court’s 671 cases, including Kimel and Boerne, is whether the FMLA’s 672 prohibition of certain constitutional state conduct is a rational 673 means to deter gender discrimination by government employers. By 674 imposing a fixed amount of leave time for both men and women, 675 Congress has insured that no employer, private or public, will be 676 able to discriminate in granting leave time based on historical, 677 irrational gender-based stereotypes by either refusing to hire 678 women because of their perceived role as the primary caregiver and 679 nurturer of families or by refusing to allow leave time to men 680 based on the assumption that women are better suited for such 681 roles. Thus, it clearly cannot be denied that the FMLA is a 682 rational means of deterring governmental gender discrimination 683 against employees. That Congress has not chosen a less intrusive 684 means to achieve this end or that this court would have adopted a 685 narrower means is entirely irrelevant to the sole issue at hand – 77 See, e.g., United States v. Virginia, 518 U.S. at 533 (affirming the heightened constitutional scrutiny for sex discrimination); Orr v. Orr, 440 U.S. 268 (1979) (holding state alimony laws may not discriminate against men); Califano v. Goldfarb, 430 U.S. 199, 208 n.8 (1977) (holding discrimination against men must meet heightened constitutional scrutiny). 56 56 686 whether such a means is a rational way to deter governmental sex 687 discrimination.78 As it is impossible to say, in view of our common 688 political, social and historical knowledge, that the legislation is 689 not a rational means of deterrence of unconstitutional gender 690 discrimination, I believe the FMLA was properly enacted under 691 Congress’ section 5 enforcement powers and thus properly abrogates 692 the States’ Eleventh Amendment immunity. 693 IV. 694 695 Even if it were required that Congress compile a legislative 696 record to demonstrate the existence of past and current gender 697 discrimination by government employers as a predicate for the 698 enactment of the FMLA pursuant to section 5 (although I believe 699 there is no such constitutional requisite), the procedural and 700 legislative history of the FMLA clearly provides more than a 701 sufficient predicate of evidence, findings and facts. The FMLA is 702 the end result of a lengthy process intended, through the 703 imposition of employment standards, to deter sex discrimination 704 against both men and women in the granting of leave time. The 705 legislative history and record bear out that, unlike the majority’s 706 reading, Congress enacted the FMLA as a single, comprehensive 707 response to prevent sex discrimination in governmental and private 78 Further, as discussed infra, Congress in fact did attempt to deter gender discrimination through narrower means by enacting the Pregnancy Discrimination Act, and found such means ineffective. 57 57 708 workplaces that Congress had unsuccessfully attempted to address 709 through more narrowly tailored legislation for over three decades. 710 Initially, Title VII of the Civil Rights Act of 1964, 42 711 U.S.C. § 2000e, et. seq., was intended to remedy discrimination in 712 the workplace based on, inter alia, sex. In 1972, perceiving 713 widespread discrimination on the basis of sex in educational 714 institutions, Congress amended Title VII to extend its coverage to 715 such institutions. See H.R. Rep. 92-238 at n.6 (“Discrimination 716 against minorities and women in the field of education is as 717 pervasive as discrimination in any other area of employment . . . 718 . When they have been hired into educational institutions . . . 719 women have been relegated to positions of lesser standing than 720 their male counterparts.”). In 1976, however, the Supreme Court 721 held that Title VII did not protect discrimination based on 722 pregnancy under the theory that such discrimination is not 723 discrimination based on sex, but rather is discrimination among 724 women based on a medical condition. See General Electric Co. v. 725 Gilbert, 429 U.S. 125 (1976) (citing Geduldig v. Aiello, 417 U.S. 726 484 (1974)). In response, Congress amended section 701 of Title 727 VII by enacting the Pregnancy Discrimination Act (“PDA”), 728 effectively overruling Gilbert by amending the definition of 729 discrimination on the basis of sex to include discrimination on the 730 basis of pregnancy. Although not directly addressing Geduldig, the 731 Court did implicitly recognize that the PDA was proper prophylactic 732 legislation to prevent sex discrimination under Title VII and thus 58 58 733 reversed Gilbert in full. See Newport News, 462 U.S. at 676 (1983) 734 (recognizing that the PDA “not only overturned the specific holding 735 in [Gilbert] but also rejected the test of discrimination employed 736 by the Court in that case”). 737 The PDA, although amending the definition of discrimination to 738 include discrimination based on pregnancy, failed to affirmatively 739 grant pregnant workers leave time or the right to return to their 740 job; rather, an employer only needed to provide such benefits if he 741 provided them to other temporarily disabled workers. In response, 742 the State of California enacted legislation mandating these rights 743 for pregnant workers. The California statute was soon challenged 744 in federal court on the grounds that it required employers to 745 discriminate against non-pregnant employees in violation of Title 746 VII as amended by the PDA. Although eventually reversed by the 747 Ninth Circuit and the Supreme Court, the Central District of 748 California held that the California statute did so conflict with 749 Title VII. See California Savings and Loan Assoc. v. Guerre, 479 750 U.S. 272 (1987). Perceiving that enacting the PDA had not achieved 751 the intended result of preventing discrimination against either 752 women or men in the granting of leave time in that the States felt 753 it necessary to affirmatively grant pregnancy leave to women and 754 not men, in 1985 Congress began considering the issue of family and 755 medical leave. See generally Sabra Craig, Note, The Family and 756 Medical Leave Act of 1993: A Survey of the Act’s History, Purposes, 757 Provisions and Social Ramifications, 44 Drake L.Rev. 51 (1995). 59 59 758 In 1985, Representative Pat Schroeder introduced the Parental 759 and Disability Leave Act of 1985 (“PDLA”) in the House of 760 Representatives. The PDLA provided for eighteen weeks of unpaid 761 leave for both mothers and fathers of newborn or adopted children 762 and twenty-six weeks of unpaid leave for employees’ non-work 763 related disabilities or sick children. The PDLA was not considered 764 by the House of Representatives, but was resubmitted in 1986 by 765 Representative William Clay and renamed the Parental and Medical 766 Leave Act of 1986 (“PMLA”). The Subcommittee on Compensation and 767 Employee Benefits and the Committee on Post Office and Civil 768 Service conducted joint hearings on the PMLA, as did the 769 Subcommittee on Labor Management Standards, to determine the extent 770 of discrimination against men and in favor of women in the 771 workplace with regard to taking leave to care for sick family 772 members. The full House of Representatives once again failed to 773 consider the bill. In 1989, Representative Clay re-introduced the 774 Family and Medical Leave Act in the House of Representatives. The 775 1989 version, which was substantially similar to the 1987 version, 776 was passed by both the House of Representatives and the Senate but 777 was vetoed by President Bush in June 1990. In January 1991 Senator 778 Christopher Dodd introduced the Family and Medical Leave Act of 779 1991 to the Senate, which was identical to the bill vetoed by the 780 President in 1991. Congress then amended the bill, changing solely 781 the amount of mandatory leave per year from between eighteen to 782 twenty-six weeks to twelve weeks. The Act was eventually passed by 60 60 783 both the House of Representatives and the Senate, only to be vetoed 784 once again in September 1992 by President Bush. See generally H.R. 785 Rep. No. 103-8(II). 786 In January 1993, Representative William Ford once again 787 introduced the Family and Medical Leave Act (“FMLA”) to the House 788 of Representatives. The leave provisions of the 1993 FMLA were 789 substantially similar to those of the amended 1991 FMLA. H.R. Rep. 790 No. 103-8(II) (1993). In considering enactment of the 1993 FMLA, 791 the House of Representatives considered both new evidence of 792 discrimination based on sex with regard to leave and reviewed the 793 testimony given at hearings with respect to the prior 794 “substantially similar” bills considered in prior years. H.R. Rep. 795 No. 103-8(I). The 1993 FMLA was passed by both the House of 796 Representatives and the Senate, and was signed into law in February 797 1993 by President Clinton. 798 As the House Report indicates, the genesis of the FMLA has its 799 roots in the 1985 proposed legislation and is substantially similar 800 to that legislation. Further, the House Report indicates that not 801 only did Congress know of the previous efforts to enact the FMLA, 802 but it based each subsequent version on prior versions. The House 803 of Representatives makes multiple references to the committee 804 hearings held for the 1986 PMLA and utilizes some of the findings 805 as a basis for enacting the FMLA. H.R. Rep. No. 103-8(I). As a 806 result of these references it is not only permissible, but 807 necessary, to look to the legislative history and intended purposes 61 61 808 of these earlier bills as well as the one finally enacted into law 809 in 1993 to determine Congressional intent.79 810 It appears clear from the legislative history that Congress 811 perceived sex discrimination in the granting of family and medical 812 leave, notably in favor of granting such leave to women, and was 813 acting accordingly in enacting the FMLA. See, e.g., S.Rep. No. 814 103-3, at 14 - 15 (1993) (discussing studies by the Bureau of Labor 815 Statistics highlighting the discrepancy between the availability of 816 maternity and paternity leave). Testimony in hearings throughout 817 the legislative process demonstrated that such discrepancies 818 occurred in both the private and public sectors. See, e.g., 819 Parental and Medical Leave Act of 1986: Hearings on H.R. 4300 820 Before the Subcomm. on Labor Management Standards, 99th Cong., 30, 821 147 (testimony of Meryl Frank, Director of the Yale Bush Center 822 Infant Care Leave Project, that “[w]e found that public sector 823 leaves don’t vary very much from private sector leaves.”); id. at 824 147 (statement of the Washington Council for Lawyers that “men, 825 both in the public and private sectors, receive notoriously 826 discriminatory treatment in their request for such leave.”); 827 Parental and Medical Leave Act of 1987: Hearings on S.249 Before 828 the Subcomm. on Children, Family, Drugs and Alcoholism, 100th Cong., 829 364-74 (testimony of Elaine Gordon, Member of the Florida House of 79 Despite their protestations, it appears that the majority agrees in that the only legislative history cited in the majority opinion is from these earlier bills, including the 1987 act. See Maj.Op. at 9. 62 62 830 Representatives, that leave is only granted to female [public] 831 employees in Florida and that Florida rejected extending such leave 832 to men); id. at 385 (testimony of Gerald McEntee, International 833 President, American Federation of State, County and Municipal 834 Employees that “the vast majority of our [public employment] 835 contracts, even though we look upon them with great pride, really 836 cover essentially maternity leave, and not paternity leave. And 837 this is so key to the bill that it opens up the eyes of employers 838 and opens up the eyes of America.”); Family and Medical Leave Act 839 of 1989: Hearings on H.R. 770 Before the Subcomm. on Labor- 840 Management Relations, 101st Cong. 271 (statement of the Concerned 841 Alliance of Responsible Employers that 13 states grant family leave 842 to women and not men).80 843 The House Report on the 1993 FMLA indicates that Congress was 844 aware of such testimony and at least partially relied on this 845 testimony in enacting provisions of the current FMLA. See, e.g., 80 The majority relies heavily on the statement in Kimel that the Court would not impute evidence of age discrimination by private employers to the States. See Kimel, 120 S.Ct. at 649. This statement must be taken in the context of Kimel, i.e., that evidence of private discrimination based on age has no probative value with respect to unconstitutional discrimination based on age by the States because it is so unlikely that discrimination engaged in by private employers would be considered unconstitutional if engaged in by States. With respect to race and gender, however, because of the significant likelihood that any discrimination by States on those bases would be unconstitutional, evidence that such discrimination is widespread throughout the private sector may be sufficient in itself to justify Congressional enactment of prophylactic legislation to prevent such widespread discrimination from being performed by the States. Cf. Florida Prepaid, 527 U.S. at ___; 119 S.Ct. at 2207. 63 63 846 H.R.Rep. No. 103-8(I) (1993) (“Meryl Frank, director of the Infant 847 Care Leave Project of the Yale Bush Center in Child Development and 848 Social Policy, reported to the committee on the 1986 conclusions 849 and recommendations of the Project’s Advisory Committee on Infant 850 Care Leave.”). Further, the Senate Report specifically mentioned 851 that the FMLA was passed in response to “government policies that 852 have failed to adequately respond to recent economic and social 853 changes that have intensified the tensions between work and 854 family.” S.Rep. No. 103-3 at 4 (1993). It thus seems clear that 855 Congress intended to enact the FMLA at least in part to directly 856 remedy actual incidents of sex discrimination in the granting of 857 family leave time that existed in both the public and private 858 sectors. See generally Garrett v. University of Alabama at 859 Birmingham Board of Trustees, 193 F.3d 1214, 1228-30 (11th Cir. 860 1999) (Cook, J., dissenting) (providing a comprehensive discussion 861 of the background of the FMLA). Thus, in this respect I cannot 862 agree with the majority that “Congress identified no pattern of 863 discrimination by the States with respect to the granting of 864 employment leave for the purpose of providing family care,” nor can 865 I agree that “the legislative record for this provision is devoid 866 of evidence of public sector discrimination” against the 867 temporarily disabled, as this was precisely what the PDA and then 868 the FMLA were enacted in response to. Maj.Op. at 10, 11. 869 Thus, even under the majority’s reasoning, I believe there is 870 more than a sufficient evidentiary and factual predicate in the 64 64 871 legislative record to support Congress’s determination that the 872 FMLA was a rational means of deterring and preventing sex 873 discrimination by governmental employers and thus was enacted 874 pursuant to its section 5 powers. As all parties agree that 875 Congress provided the necessary clear statement of its intent to 876 abrogate, the FMLA as appropriate section 5 legislation properly 877 abrogates the States’ Eleventh Amendment immunity under this 878 rationale as well. 65 65 879 66 66 67 67 


[by Wiener]

 WIENER, Circuit Judge: Defendants-Appellants, all officials of the Louisiana Department of Social Services (collectively “LDSS”), appeal from the district court’s denial of their motions to dismiss on grounds of sovereign immunity (sometimes, “Eleventh Amendment immunity”) a complaint brought against LDSS by Plaintiff-Appellant Janice Kaz-mier under the Family and Medical Leave Act (“FMLA”). 1 As we conclude that the particular provisions of the FMLA that are at issue in the instant case do not validly abrogate the State of Louisiana’s sovereign immunity, we reverse and remand with instructions to dismiss Kazmier’s action. I Facts and Proceedings Kazmier was fired by LDSS after she took several weeks leave during 1995: She took at least one month of leave beginning in May of 1995 after breaking her arm in a bicycling accident, and took at least one more week of leave at the beginning of October 1995 to care for her terminally ill father. In addition, after breaking her wrist later that month, Kazmier failed to return to work for the rest of the calendar *523 year. As a result of Kazmier’s absences, LDSS terminated her employment on January 4,1996. Kazmier filed suit against LDSS in federal district court early in 1997, alleging that LDSS’s termination of her employment violated several provisions of the FMLA. LDSS filed a motion to dismiss, contending that Kazmier was barred by the Eleventh Amendment from prosecuting her suit in federal court. The United States intervened on Kazmier’s side, arguing that the FMLA validly abrogates the States’ Eleventh Amendment immunity. The district court denied LDSS’s motion to dismiss, and this appeal followed. II Analysis The Eleventh Amendment is rooted in the principle, imprecisely stated in its text but implicit in the federal structure of the Constitution, that the federal courts do not have jurisdiction to hear suits brought by private individuals against nonconsenting States. 2 This jurisdictional bar is not, however, absolute: The States’ sovereign immunity can be abrogated by Congress pursuant to its enforcement power under Section 5 of the Fourteenth Amendment. 3 The validity of a purported abrogation is assessed judicially by applying a two-part test: First, “Congress must unequivocally express[] its intent to abrogate the immunity”; 4 and, second, Congress must act “pursuant to a valid exercise of power.” 5 Kazmier contends that the FMLA validly abrogates the States’ Eleventh Amendment immunity, making LDSS amenable to suit in federal court. Conceding ar-guendo that in enacting the FMLA Congress unequivocally expressed its intent to abrogate such immunity, LDSS insists that Congress failed to effect the intended abrogation pursuant to a valid exercise of power. Thus, the only issue before us is whether Congress’s intent to make the pertinent provisions of the FMLA applicable to the States was validly enacted into law pursuant to Congress’s enforcement power under Section 5 of the Fourteenth Amendment. Section 1 of the Fourteenth Amendment states that “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” 6 Section 5 of the Fourteenth Amendment provides that “[t]he Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” 7 Kazmier and the United States argue that the FMLA is a valid congressional enforcement of the Fourteenth Amendment’s guarantee that “[n]o State shall ... deny to any person within its jurisdiction the equal protection of the laws.” “It is for Congress in the first instance to determine whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment, and its conclusions are entitled to much deference.” 8 The Supreme Court has noted, however, that “the same language that serves as the basis for the affirmative *524 grant of congressional power also serves to limit that power.” 9 “Congress cannot decree the substance of the Fourteenth Amendment’s restriction on the States.... It has been given the power ‘to enforce,’ not the power to determine what constitutes a constitutional violation.” 10 Thus, Congress’s exercise of its Section 5 enforcement power is always authorized when enacting strictly remedial legislation that narrowly targets clearly un constitutional State conduct. 11 In contrast, Congress can enact broad prophylactic legislation that prohibits States from engaging in conduct that is constitutional only when there is “a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.” 12 The Supreme Court’s recent decision in Kimel v. Florida Board of Regents 13 provides the clearest guidance for determining whether legislation that purports to enforce the Fourteenth Amendment’s Equal Protection Clause against the States is “congruent and proportional.” A two part test emerges from Kimel. At the first step, we begin our analysis by determining what type of constitutional violation the statute under review is designed to prevent. The outermost limits of Congress’s potential authority to enact prophylactic legislation is directly linked to the level of scrutiny that we apply in assessing the validity of discriminatory classifications of the targeted type. If legislation “prohibits substantially more state employment decisions and practices than would likely be held unconstitutional under the applicable equal protection ... standard,” 14 the legislation will not be considered congruent and proportional. Thus, Congress’s authority is most broad when “we require a tight[] fit between [the discriminatory classifications in question] and the legitimate ends they serve,” as we do with classifications that are based on race or sex. 15 Conversely, congressional authority is most narrow when Congress tackles discrimination on the basis of classifications that are not constitutionally suspect: “States may discriminate on the basis of [such classifications] without offending the Fourteenth Amendment if the ... classification in question is rationally related to a legitimate state interest.” 16 Having established, at Kimel’s first step, the limits of Congress’s 'potential authority under Section 5, we examine, at Kimel’s second step, the legislative record of the statute under review to see whether it contains evidence of actual constitutional violations by the States sufficient to justify the full scope of the statute’s provisions. 17 The respect that must be accorded the States as independent sovereigns within our federal system prevents Congress from restraining them from engaging in constitutionally permissible conduct based on nothing more than the mere invocation of perceived constitutional bogeymen: Legislation that abrogates immunity must be proportional with and congruent to an identified pattern of actual constitutional violations by the States. 18 If Congress “fail[s] to [include in the legislative record of a prophylactic statute any evidence of a] significant pattern of uncon *525 stitutional discrimination” by the States, then the statute will not be held to abrogate the States’ sovereign immunity. 19 A. Scope of Review Section 2612(a)(1) of the FMLA 20 entitles eligible employees to take leave totaling twelve weeks per calendar year: (A) Because of the birth of a son or daughter and in order to care for such son or daughter; (B) Because of the placement of a son or daughter with the employee for adoption or foster care; (C) In order to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition. (D) Because of a serious health condition that makes the employee unable to perform the functions of the position of such employee. Kazmier has alleged that her employment with LDSS was terminated because she took leave (1) to care for her terminally father and (2) to recuperate from personal injuries. Consequently, of the section’s four justifications for leave under the FMLA, only subsections (C) and (D) are implicated in the instant case. As subsections (C) and (D) clearly authorize leave on different substantive grounds, logic dictates that each must be subjected to an independent “congruence and proportionality” analysis. Although we have been unable to locate any case law expressly addressing the issue of sever-ability in the context of congruence and proportionality analysis, 21 we discern no reason why the provisions of one of the FMLA’s subsections could not validly abrogate the States’ Eleventh Amendment immunity even if the provisions of some or all of the remaining subsections fail to do so. We shall therefore evaluate the congruence and proportionality of subsections (C) and (D) separately. B. Subsection (C) This subsection requires employers to permit each eligible employee to take some or all of his 12 weeks FMLA annual leave to provide care for family members suffering from serious health conditions. .Congress’s express intent in enacting this provision, was to prevent employers from granting such leave discriminatorily on the basis of sex. 22 Specifically, Congress was responding to findings that private sector employers frequently discriminate against men in granting leave to provide family care. 23 Testimony before Congress indicated that the perverse effect of this reverse discrimination has actually been to push women out of the work force, largely because such discrimination is both rooted in and reinforces the stereotype that women will assume the role of the primary family care-giver. According to the testimony before Congress, such ster *526 eotypes make employers less willing to hire women because of the expectation that women will take significantly more leave time to care for members of their families than will men. 24 Discrimination on the basis of sex is subject to “heightened” constitutional scrutiny. 25 Sexual classifications are constitutional only if they serve “important governmental objectives and ... the discriminatory means employed are substantially related to the achievement of those objectives.” 26 Thus, Congress potentially has wide latitude under Section 5 to enact broad prophylactic legislation designed to prevent the States from discriminating on the basis of sex. The mere invocation by Congress of the specter of sex discrimination, however, is insufficient to support the validity of legislation under Section 5, at least when the statute at issue prohibits the States from engaging in a significant amount of conduct that is constitutional. Broad, prophylactic legislation must be congruent with and proportional to actual, identified constitutional violations by the States. 27 Yet in enacting the FMLA, Congress identified no pattern of discrimination by the States with respect to the granting of employment leave for the purpose of providing family care. Congress did make findings of such discrimination in the private sector, but such evidence is not imputable to the public sector to validate abrogation: The Supreme Court ruled in Kimel that findings of private sector discrimination do not create an inference that similar discrimination has occurred in the public sector. 28 Simply put, we will not infer from private sector conduct that the States are wilfully violating their constitutional duty to refrain from engaging in sex discrimination. It is indisputable that Subsection (C) constitutes broad, prophylactic legislation: There is nothing in the Constitution that even closely approximates either a duty to give all employees up to twelve weeks of leave per year to care for ailing family members or a right of an employee to take such leave. In fact, as the legislative record for this provision is devoid of evidence of public sector discrimination, there simply are no identified constitutional violations to which the provision could possibly be “congruent and proportional.” If subsection (C) were solely remedial in nature, the absence of evidence of constitutional violations might not present a problem. But the provisions of this subsection are, instead, prophylactic in nature, purporting to prohibit the States from engaging in a broad swath of conduct that is not per se violative of the Equal Protection Clause. 29 We conclude, therefore, that Congress did not validly enact subsection (C) pursuant to its enforcement power under Section 5; that subsection (C) does not effectively abrogate the States’ Eleventh Amendment immunity; and that Kazmier cannot en *527 force that subsection against the State of Louisiana in federal court. 30 C. Subsection (D) This subsection requires employers to permit each eligible employee to take some or all of his 12 weeks FMLA annual leave to address the employee’s own “serious health conditions.” Congress’s express intent in enacting this provision was to prevent employers from discriminating on the basis of temporary disability. 31 The legislative record contains the additional suggestion that Congress meant for this provision to prevent discrimination against women on the basis of pregnancy-related disability as well. 32 Kazmier and the United States argue that this latter concern indicates that, like subsection (C), subsection (D) is ultimately designed to prevent discrimination on the basis of sex. As an initial matter, we reject the notion that subsection (D) targets sex discrimination. The legislative record demonstrates that Congress was concerned with discrimination on the basis of pregnancy, which is not the same thing as broad based discrimination on the basis of sex. The Supreme Court has held that discrimination on the basis of pregnancy does not violate the Equal Protection Clause. 33 To the extent that subsection (D) targets such discrimination, it does not fall within Congress’s enforcement powers under Section 5 of the Fourteenth Amendment. The United States asserts that even though subsection (D) expressly targets only discrimination in the granting of employment leave, the provision was nevertheless intended to have the secondary effect of preventing employers from engaging in discriminatory hiring practices. Specifically, the United States asserts that Congress enacted subsection (D) in response to evidence indicating that employers often are reluctant to hire women because of “the assumption that women will become pregnant and leave the labor market.” 34 The United States asks us to infer from Congress’s consideration of this evidence that even if subsection (D) is not designed to prevent discrimination on the basis of sex in the granting of leave, it is nevertheless designed to prevent discrimination on the basis of sex in the making of hiring decisions. This argument is flawed on a number of levels. First, we note that, of Section 2612(a)(l)’s four justifications for leave, subsection (A) is the one that most plausibly is designed to combat pregnancy-related discrimination, as that subsection entitles employees to take leave “[b]ecause of the birth of a son or daughter and in order *528 to care for such son or daughter.” Second, to the extent that subsection (D) does target discrimination related to pregnancy, the argument advanced by the United States appears impermissibly to conflate discrimination on the basis of pregnancy with discrimination on the basis of sex, an approach that, as we already have noted, has been rejected by the Supreme Court. 35 Ultimately, however, we need not delve too deeply into the true nature of the targeted discrimination, as we find it virtually impossible to conceive how requiring employers to permit employees to take 12 weeks of leave for serious health conditions could possibly have the effect of preventing sex discrimination in hiring practices. If the United States is correct in surmising that employers are reluctant to hire women for fear that they will become pregnant and “leave the labor market,” then the only possible effect on hiring practices of expressly mandating leave for pregnancy (among other serious health conditions) would be to reinforce such fears and make employers even more reluctant to hire women. A provision mandating that employers grant leave for serious health conditions cannot be viewed as reasonably calculated to achieve the objective of making employers less disinclined to hire women. Again, therefore, we reject the notion that subsection (D) is designed to combat sex discrimination. What is patently clear, though, is that subsection (D) was designed by Congress to prevent discrimination on the basis of temporary disability. 36 Unlike discrimination on the basis of sex, however, discrimination on the basis of disability is subject only to the slightest of scrutiny under the Equal Protection Clause. 37 States may discriminate on the basis of disability without offending the Fourteenth Amendment as long as the classification in question is rationally related to a legitimate state interest. 38 In this respect, disability discrimination is similar to age discrimination, so subsection (D) is properly subject to the kind of analytical approach employed by the Supreme Court in Kimel to determine whether the Age Discrimination in Employment Act (“ADEA”) validly abrogates State sovereign immunity. 39 Even a cursory look makes clear that, like the ADEA, the FMLA “prohibits substantially more state employment decisions and practices than would likely be held unconstitutional under the applicable equal protection, rational basis standard.” 40 It would not, for example, be unconstitutional for a State to permit its employees to take only eight weeks leave per year because of serious health conditions. For that matter, it would not be unconstitutional for a State to allow its employees no health related leave time at all, as long as in doing so the State applied the rule on a nondiscriminatory basis. In sum, subsection (D) prohibits the States from engaging in such a wide array of perfectly constitutional practices that we have difficulty conjuring up any unconstitutional conduct by the States to which that subsection’s proscriptions might possibly be proportional and congruent. 41 *529 We need not engage in such counterfac-tual speculation, however, to resolve the instant case. The legislative record for the FMLA is devoid of any evidence of a pattern of discrimination by the States against the temporarily disabled; and the public sector cannot be tarred with the brush of private sector discrimination to create an inference of unconstitutional discrimination by the States. 42 “Congress’ failure to uncover any significant pattern of unconstitutional discrimination here confirms that Congress had no reason to believe that broad prophylactic legislation was necessary in this field.” 43 Without direct evidence of substantial unconstitutional discrimination by the States, there simply is no “Fourteenth Amendment evil” to which subsection (D) could possibly be congruent and proportional. 44 We conclude, therefore, that Congress did not validly enact subsection (D) pursuant to its enforcement power under Section 5; that subsection (D) does not effectively abrogate the States’ Eleventh Amendment immunity; and that Kazmier cannot enforce that subsection against the State of Louisiana in federal court. As a final point, we reject the argument advanced by Kazmier and the United States that, by stare decisis, our holding in Coolbaugh v. State of Louisiana 45 to the effect that Title II of the Americans with Disabilities Act of 1990 (“ADA”) 46 does validly abrogate the States’ Eleventh Amendment immunity, controls our decision today with respect to the validity of Congress’s abrogation of State sovereign immunity by enacting subsection (D). As an initial matter, we note that the continuing validity of Coolbaugh has been called seriously into question by the Supreme Court’s subsequent decision in Kimel which, in holding that Congress did not validly abrogate State sovereign immunity in enacting the ADEA, reversed another panel decision from this Circuit. 47 The Coolbaugh panel appears to have inferred a pattern of unconstitutional discrimination by the States from evidence in the ADA’s legislative record pertaining solely to discrimination in the private sector, an inference that the Court in Kimel made clear is impermissible. We need not re-examine the holding of Coolbaugh in detail, however, because the ADA is an entirely different statute than the FMLA, with its own distinguishable substance and its own distinguishable legislative record. For present purposes we need observe only that the legislative record of the FMLA, lacking any evidence whatsoever of unconstitutional discrimination by the States, will not support abrogation of State sovereign immunity, at least not with respect to those of the FMLA’s prophylactic provisions that are at issue in this case. Coolbaugh therefore does not proscribe our concluding that, like subsection (C), subsection (D) was not validly enacted pursuant to Congress’s enforcement power under Section 5 of the Fourteenth Amendment and therefore does not abrogate the States’ Eleventh Amendment immunity. 48 Ill A Response to the Dissent The extensive research that has obviously gone into the dissent, and the scholarly work that it has produced, merit a brief response. The dissent chides us for *530 “Iookfing] at Boeme and all of the prior [Eleventh Amendment] jurisprudence through the wrong end of Kimel’s perspective glass.” 49 It then attempts to reinterpret the Supreme Court’s recent Eleventh Amendment jurisprudence through the antient lens of Chief Justice Marshall’s 1819 opinion in McCulloch v. Maryland. 50 The thrust of the dissent’s argument is that the “congruence and proportionality” test employed by the Supreme Court in Kimel, City of Boeme, and Florida Prepaid is in actuality nothing more than a “rational basis” standard of review. 51 The dissent contends that if we conclude that the FMLA is rationally related to deterring sex discrimination (which the dissent apparently concludes it to be), 52 we are obligated to uphold the validity of its purported abrogation of State sovereign immunity. The dissent’s approach to Eleventh Amendment jurisprudence is not supported by the law, and even as a matter of legal theory it is riddled with problems. The dissent contends that “Kimel and [City of] Boeme reaffirmed and did not limit or replace the McCulloch ‘rational means’ standard.” In reality, however, McCulloch is nowhere mentioned in Kimel, and City of Boeme merely cites McCulloch for the well-established and universally accepted truism that “[ujnder our Constitution, the Federal government is one of enumerated powers.” 53 Indeed, the Court did not use the phrases “rational means” or “necessary and proper” even once in either of those two opinions. Simply put, McCulloch has absolutely nothing to do with the Supreme Court’s recent Eleventh Amendment jurisprudence: Chief Justice Marshall’s interpretation of the Necessary and Proper Clause was certainly a landmark decision with far-reaching implications, but it sheds no useful light on the difficult and intractable problems entailed in reconciling Congress’s enforcement powers under Section 5 of the Fourteenth Amendment with the bedrock principles of State sovereign immunity embodied in the Eleventh Amendment. Moreover, the dissent’s contention that the Supreme Court’s congruence and proportionality test amounts to nothing more than a rational basis standard of review just cannot be right. First, the Supreme Court is well accustomed to using a rational basis standard of review in testing the validity of legislation; 54 if that is the only yardstick that the Court meant to apply in the context of the Eleventh Amendment, it would not have gone to the trouble of articulating a separate congruence and proportionality test. Second, neither the ADEA (the statute at issue in Kimel) nor RFRA (the statute at issue in City of Boeme) can be fairly characterized as irrational, yet the Court struck down both of those statutes after applying its congruence and proportionality test. It could not be clearer that congruence and proportionality is a considerably more stringent standard of review than is rational basis. Indeed, these two tests bear *531 little resemblance to one another, as they are rooted in entirely separate clauses of the Constitution. 55 Professor Laurence Tribe might agree with the dissent, which cites several of his pre-Kimel articles, but the support of even so prominent an academician is an inadequate substitute for rigorous adherence to recent Supreme Court precedent. At its close, the dissent argues that the legislative record compiled by Congress in enacting the FMLA contains sufficient evidence of unconstitutional discrimination by the States to support abrogation of State sovereign immunity with respect to 29 U.S.C. § 2612 (a)(1)(C) and (D). Despite scouring what it admits to be nine years of legislative history, the dissent is able to point to only six statements made during congressional hearings, which, it contends, demonstrate that in enacting Subsections (C) and (D) Congress was attempting to redress a pervasive pattern of sex-based discrimination that existed in the public sector at the time that the FMLA was enacted. Even a cursory review of those six statements, however, reveals that they are not in the least probative of the question before us. Every single one of the six quotations relates solely to the issue of parental leave, an issue that is not addressed by Subsections (C) and (D) of the FMLA and that we have expressly declined to address and rule on in deciding the case before us. Further evidence of the unpersuasiveness of the six statements is the fact that one of them deals solely with discrimination in the private sector; 56 one of them deplores the absence of robust parental leave policies in the public and private sectors, but without making any mention whatsoever of sex-based discrimination in the granting of such leave; 57 a third actually lauds the public sector for making parental leave readily available to employees, contending that the public sector has set an example that the private sector should emulate; 58 and a fourth, which was made during a hearing held in 1987 and which asserted that at that time — 13 years ago — the State of Florida granted its employees maternity leave but not paternity leave, was no longer true when the FMLA was enacted in 1993, by which time Florida had already enacted a general parental leave policy available to both sexes on a neutral basis. 59 Whether *532 the two or three remaining anecdotal and outdated statements on which the dissent is left to rely would be sufficient to support abrogation of State sovereign immunity with respect even to legislation pertaining to parental leave is thus subject to considerable doubt: -In Kimel, the Supreme Court explained that its ruling in City of Boeme was rooted in its conclusion that “Congress had uncovered only ‘anecdotal evidence’ [of discrimination by the State] that, standing alone, did not reveal a ‘widespread pattern of religious discrimination in this country.’” 60 We note again, however, that the validity of the FMLA’s parental leave provisions is not at issue in this case. Today we hold only that Congress failed to present sufficient evidence of unconstitutional discrimination by the States to support abrogation of State sovereign immunity with respect to Subsections (C) and (D), both of which the dissent fails to address squarely. In fact, the dissent devotes no analysis at all to Subsection (D): Although it baldly declares that it cannot agree “that the legislative record for this provision is devoid of evidence of public sector discrimination against the temporarily disabled as this was precisely what the PDA and then the FMLA were enacted in response to,” 61 the dissent does not support its disagreement by pointing to any evidence pertaining to such discrimination by the States. Indeed, as the temporarily disabled are not a constitutionally suspect class, the dissent’s own analysis would seem to indicate that Subsection (D) is entitled to substantially less deference than are the other sections of the FMLA. 62 Unfortunately, the dissent’s total failure to analyze Subsee- ' tions (C) and (D) individually precludes a more detailed response to the positions that it takes. 63 In the end, the dissent’s citations to the legislative record only serve to reinforce our conclusion that the FMLA is not designed 'to prevent discrimination at all, but rather is crafted to provide employees throughout the nation with a substantive statutory right to take leave from work for . family and medical reasons. The dissent has managed to find but two potentially relevant remarks — stray ones at that— pertaining to discrimination in the public sector, each of which was made offhand, does not appear to have been solicited by Congress, and is greatly overshadowed by the .speaker’s plea that Congress enact a statutory right to parental leave. In fact, in several instances the congressional testimony cited by the dissent emphasizes the paramount importance of maternity leave as distinguished from paternity leave, ironic indeed considering the dissent’s attempt to use this testimony to demonstrate that Congress’s primary concern was that family and medical leave be dispensed on a non-discriminatory basis. 64 *533 Although the dissent clearly agrees with the substantive goals that Congress was trying to achieve in enacting Subsections (C) and (D), the wisdom of individual policy decisions is irrelevant to determining the validity of congressional abrogation of State sovereign immunity. Because of the dissent’s failure to acknowledge this basic legal principle, as well as the reasons discussed above, we find the dissent unconvincing. IV Conclusion In light of the foregoing analysis, the district court’s denial of LDSS’s motion to dismiss must be reversed and the case remanded with instructions that both the official and the individual capacity claims against the named defendants be dismissed for lack of jurisdiction. 65 REVERSED AND REMANDED, with instructions. . 29 U.S.C. §§ 2601 etseq. . See, e.g., Kimel v. Florida Board of Regents, 528 U.S. 62 , 120 S.Ct. 631, 640 , 145 L.Ed.2d 522 (2000) ("[T]he Constitution does not provide for federal jurisdiction over suits against nonconsenting States”). . 120 S.Ct. at 644 . . Seminole Tribe of Florida v. Florida, 517 U.S. 44, 55 , 116 S.Ct. 1114 , 134 L.Ed.2d 252 (1996). . Id. . U.S. CONST, amend. XIV, § 1. . U.S. CONST, amend. XIV, § 5. . Kimel, 120 S.Ct. at 644 (citations omitted). . Id (quotations and citations omitted). . Id (quotations and citations omitted). . Id (quotations and citations omitted). . Id (quotations and citations omitted). . 528 U.S. 62 , 120 S.Ct. 631 , 145 L.Ed.2d 522 (2000). . Kimel, 120 S.Ct. at 647 . . Kimel, 120 S.Ct. at 646 . . Id. . City of Boerne v. Flores, 521 U.S. 507, 531 , 117 S.Ct. 2157 , 138 L.Ed.2d 624 (1997); Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U.S. 627 , 119 S.Ct. 2199, 2207 , 144 L.Ed.2d 575 (1999). . Kimel, 120 S.Ct. at 648-50 . . Id. at 647. . 29 U.S.C. § 2612 (a)(1). . We do note, however, that in a recent decision the Eleventh Circuit chose to analyze the validity of the FMLA's purported abrogation of State sovereign immunity on a subsection-by-subsection basis. See Garrett v. University of Alabama, 193 F.3d 1214 (11th Cir.1999). . The FMLA’s statement of purpose reflects that one of its primary purposes is to "minimize[ ] the potential for employment discrimination on the basis of sex by ensuring generally that leave is available for ... compelling family reasons, on a gender-neutral basis.” 29 U.S.C. § 2601 (b)(4). . See The Parental and Medical Leave Act of 1987: Hearings on S.249 Before the Subcommittee on Children, Families, Drugs and Alcoholism of the Senate Committee on Labor and Human Resources, Part 2, 100th Cong. 536 (1987) (Statement of Professor Susan Deller Ross, Georgetown University Law Center) ("[T]here are a number of studies ... in which it’s shown that employers in this country that are giving family leaves to their workers are not giving it non-discriminatorily, they are, by and large, giving it only to women, not to men. It’s fairly flagrant discrimination.”) . See The Family and Medical Leave Act of 1991: Hearing on S.5 Before the Subcommittee on Children, Family, Drugs and Alcoholism of the Senate Committee on Labor and Human Resources, 102d Cong. 10 (1991) (Statement of Senator Adams) ("[T]he reality today is that women are the primary caregivers for elderly parents.... It is the daughters, whether biological or through marriage, that account for the majority of caregivers.”). . See United States v. Virginia, 518 U.S. 515, 533 , 116 S.Ct. 2264 , 135 L.Ed.2d 735 (1996). . Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724 , 102 S.Ct. 3331 , 73 L.Ed.2d 1090 (1982) (citation omitted). . See City of Boerne, 521 U.S. at 531-32 , 117 S.Ct. 2157 ; Florida Prepaid, 119 S.Ct. at 2207 ; Kimel, 120 S.Ct. at 648-50 . . Kimel, 120 S.Ct. at 649 ("Finally, the United States' argument that Congress found substantial age discrimination in the private sector ... is beside the point. Congress made no such findings with respect to the States.”). . It would be perfectly constitutional, for example, for a State to provide employees with only eight weeks of leave per year to provide family care. . See Sims v. University of Cincinnati, 219 F.3d 559 (6th Cir.2000) (reaching the same result). . See H.R.Rep. No. 99-699, Part 2, at 25 (1986) (“[A] worker who has lost a job due to a serious health condition faces future discrimination in finding a job which has even more devastating consequences for the worker and his or her family.”); Family and Medical Leave Act of 1989: Hearing on S.345 Before the Subcommittee on Children, Family, Drugs, and Alcoholism of the Senate Committee on Labor and human Resources, 101st Cong. 26-27 (1989) (testimony of Ms. Barbara Hoffman, Vice President of the National Coalition for Cancer Survivorship) (stating that the "disparate treatment" of cancer survivors "includes dismissal, demotion, and loss of benefits” and that “[sjuch discrimination against qualified employees costs society millions of dollars in lost wages, lost productivity and needless disability payments”). . See 29 U.S.C. § 2601 (a)(6) ("[Ejmployment 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.”). . Geduldig v. Aiello, 417 U.S. 484 , 94 S.Ct. 2485 , 41 L.Ed.2d 256 (1974). . See The Parental and Medical Leave Act of 1986: Joint Hearing on H.R. 4300 Before the Subcommittee on Labor-Management Relations and the Subcommittee on Labor Standards of the House Committee on Education and Labor, 99th Cong. 36, 42 n. 48 (1986) (excerpt from brief of the American Civil Liberties Union). . See Geduldig v. Aiello, 417 U.S. 484 , 94 S.Ct. 2485 , 41 L.Ed.2d 256 (1974). . We note that pregnancy does fall within the definition of disability that is supplied by the statute, as pregnancy is a serious health condition that may affect the ability of an employee to perform work. . City of Cleburne v. Cleburne Living Center, 473 U.S. 432 , 105 S.Ct. 3249 , 87 L.Ed.2d 313 , (1985). . Id. at 442 , 105 S.Ct. 3249 ("[W]e conclude for several reasons that the Court of Appeals erred in holding mental retardation a quasi-suspect classification calling for a more exacting standard of judicial review than is normally accorded economic and social legislation.”). . 29 U.S.C. §621 et seq. . Kimel, 120 S.Ct. at 647 . . See id. at 645 ("Initially, the substantive requirements the ADEA imposes on state and local governments are disproportionate to any unconstitutional conduct that conceivably could be targeted by the Act.”). . Id. at 649 (“CT]hat Congress found substantial ... discrimination in the private sector ... is beside the point. Congress made no such findings with respect to the States.”). . Id. at 650. . Florida Prepaid, 119 S.Ct. at 2207 (citation and quotations omitted). . 136 F.3d 430 (5th Cir.1998). . 42 U.S.C. §§ 12131-12165 (1994). . See Scott v. University of Mississippi, 148 F.3d 493 (5th Cir.1998), overruled by Kimel, 528 U.S. 62 , 120 S.Ct. 631 , 145 L.Ed.2d 522 (2000). . See Hale v. Mann, 219 F.3d 61 (2d Cir.2000) (reaching the same result). . Dissent at 522-23. . 17 U.S. (4 Wheat.) 316, 421 , 4 L.Ed. 579 (1819). . Although the dissent accuses us of obstructing coherent dialogue by conflating rational means review with rational basis review, the dissent fails to articulate any substantive difference between rational basis review and the standard that it proposes. Rather than fence with the ghost of the dissent’s imagined standard, we have labeled the dissent’s approach "rational basis review” in an attempt to lend it an established framework of substantive content. . We note in passing that the FMLA does not directly prohibit sex discrimination at all. For example, under the FMLA it would be perfectly permissible for an employer to grant 15 weeks of leave per year to female employees while granting only 12 weeks of leave per year to males. . 521 U.S. 507, 516 , 117 S.Ct. 2157 , 138 L.Ed.2d 624 (1997). . See, e.g., McGowan v. Maryland, 366 U.S. 420 , 81 S.Ct. 1101 , 6 L.Ed.2d 393 (1961). . "Rational basis” review is an equal protection standard rooted in Section 1 of the Fourteenth Amendment, whereas the “congruence and proportionality” test defines the outermost limits of Congress's enforcement powers under Section 5 of the Fourteenth Amendment. . See S.Rep. No. 103-3, at 14-15, U.S. Code Cong. &amp; Admin. News at 17 (presenting statistics relating to parental leave for "employees working in private business” and a survey of "253 U.S. corporations”). . See Parental and Medical Leave Act of 1986: Hearings on H.R. 4300 Before the Subcomm. On Labor Management Standards, 99th Cong., 30, 147 (testimony of Meryl Fran, Director of the Yale Bush Center Infant Care Leave Project, deploring the fact that "American women have no statutory right to parental leave”). . See Parental and Medical Leae Act of 1987: Hearings on S.249 Before the Subcomm. On Children, Family, Drugs and Alcoholism, 100th Cong., 338 (testimony of Gerald McEn-tee, International President, American Federation of State, County, and Municipal Employees, that "one conclusion which can be drawn is that a vast number of employees in the State and local government sector already have the right to take unpaid parental leave or maternity leave for periods in excess of 18 weeks. Ninety percent of the employees covered in the sample, or 650,000 people, already had the right to a leave of four months or more. Clearly, parental leave is a fact of life in the public sector- And if government at all levels can live with unpaid parental leave, then so can private industry.”). . See Fl. St. § 110.221 (1991) (providing parental leave "for the father or mother of a child who is born to or adopted by that parent.”). The fact that Florida changed its parental leave policy in 1991 to make leave available to parents of both sexes indicates that other testimony relied on by the dissent, stating that in 1989 13 states granted family leave to women but not to men, was similarly outdated and unreliable by the time that the FMLA was enacted in 1993. . 120 S.Ct. at 644-46 , citing City of Boerne, 521 U.S. at 531 , 117 S.Ct. 2157 . . Dissent at 548-49 (internal quotation marks omitted). . See Dissent at 536-38 (noting that Congress is entitled to substantially less deference in enacting prophylactic legislation that is purportedly designed to prevent discrimination on the basis of classifications that are not constitutionally suspect). . The dissent appears to take the position that we must either uphold or strike down the FMLA in its entirety, despite the fact that only two of its four substantive provisions are at issue here. See Dissent at 544-45. The dissent cites no authority for its position,- even though it would require breaking with both the Second and Eleventh Circuits. See Garrett, 193 F.3d 1214 (11th Cir.1999), Hale, 219 F.3d 61 (2d Cir.2000). Moreover, the dissent's all-or-nothing approach would give Congress virtually unlimited authority to pass clearly unconstitutional provisions merely by tacking them onto statutes that are otherwise constitutional, a result that simply cannot be right. .See, e.g., Parental and Medical Leave Act of 1987: Hearings on S.249 Before the Subcomm. On Children, Family, Drugs and Alcoholism, 100th Cong., 365-70 (testimony of Elaine Gordon, Member of the Florida House of Representatives, stating that "[t]here must be come official commitment to acknowledging motherhood as a societal function and stating that those who combine work and childbearing shall not be penalized,” and noting that to *533 that end she had “introduced a bill relating to maternity leave ... proposing] to extend maternity leave beyond state employees and encompass all employees, public and private''); Parental and Medical Leave Act of 1986: Hearings on H.R. 4300 Before the Subcomm. On Labor Management Standards, 99th Cong., 30, 147 (testimony of Meryl Fran, Director of the Yale Bush Center Infant Care Leave Project, deploring the fact that "American women have no statutory right to parental leave” and making reference to a study she conducted researching the availability of parental leave to women only). . The claims brought against the defendants in their individual capacities must be dismissed for lack of subject matter jurisdiction because it is clear that the State of Louisiana is the real party in interest. See Pennhurst State School &amp; Hospital v. Halderman, 465 U.S. 89, 101 , 104 S.Ct. 900 , 79 L.Ed.2d 67 (1984) ("The Eleventh Amendment bars a suit against state officials when the state is the real, substantial party in interest.... [T]he general rule is that relief sought nominally against an officer is in fact against the sovereign if the decree would operate against the latter.”) (citations omitted). 


[Dissent by Dennis]

 DENNIS, Circuit Judge, dissenting. The majority holds, incorrectly in my opinion, that the Family and Medical Leave Act of 1993, 29 U.S.C. § 2601 , et seq., (“FMLA”) is not “appropriate legislation” by which Congress has power to enforce the equal protection of the laws provision of the Fourteenth Amendment and that, therefore, the FMLA does not validly abrogate the Eleventh Amendment immunity barring suits by private citizens against the states in federal courts. My colleagues have been led into error by what I believe to be their misunderstanding of Kimel v. Florida Board of Regents, 528 U.S. 62 , 120 S.Ct. 631 , 145 L.Ed.2d 522 (2000), City of Boerne v. Flores, 521 U.S. 507 , 117 S.Ct. 2157 , 138 L.Ed.2d 624 (1997), the prior Fourteenth Amendment jurisprudence, and the legislative record of the FMLA. For these reasons, I respectfully dissent. I. It is common ground in this litigation that Congress in the FMLA unequivocally expressed its intent to abrogate state immunities. See 29 U.S.C. §§ 2611 (4)(a)(iii); 2617(a). However, the majority holds that Congress did not enact the FMLA pursuant to a valid exercise of power under the Fourteenth Amendment. The majority bases its decision primarily on the Supreme Court’s recent holding in Kimel. Kimel was decided subsequently to oral argument in the present case, and the parties have not been afforded an opportunity to brief us on Kimel’s meaning or effect. In the absence of adversarial input, the majority looks at Boeme and all of the prior jurisprudence through the wrong end of Kimel’s perspective glass. The majority reads Kimel as standing for two propositions that would drastically reduce Congress’ enforcement power under section 5 of the Fourteenth Amendment. 1 First, the majority views the *534 phrase “congruence and proportionality,” used in Kimel and Boeme to describe appropriate § 5 legislation, as placing new, stricter limits on Congress’ exercise of its Fourteenth Amendment enforcement power. Second, the majority reads the “congruent and proportional” phrase as supplanting the “rational means” standard for measuring Congressional power announced by Chief Justice Marshall in McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 421 , 4 L.Ed. 579 (1819), and applied to legislation enacted under section 5 of the Fourteenth Amendment by the Supreme Court in Ex Parte Virginia, 100 U.S. (10 Otto) 339, 25 L.Ed. 676 (1879) and Katzenbach v. Morgan, 384 U.S. 641 , 86 S.Ct. 1717 , 16 L.Ed.2d 828 (1966). Accordingly, the majority would apply its version of the “congruent and proportional” requirement exclusively and across the board, even to § 5 legislation designed to remedy or deter governmental discrimination based on race, gender, or other suspect or quasi-suspect classification. The majority, in my opinion, is mistaken on both points. First, neither Kimel nor Boeme held that Congress must establish an evidentiary predicate for legislation that constitutes a rational means of deterring and preventing governmental discrimination against persons on the bases of race or gender. The Supreme Court has never suggested that Congress cannot rely on the Supreme Court’s recognition of such suspect or quasi-suspect classes in enacting legislation to deter violations of their constitutional rights. Because Congress’ express power to legislatively enforce the Equal Protection Clause of the Fourteenth Amendment is concurrent with the Court’s judicial power to enforce the Amendment, Congress is not required to establish an evidentiary predicate independent of the Court’s decisions identifying suspect classes in order to enact legislation pursuant to § 5 to protect individuals from the denial of the equal protection of the laws based on race, gender or other suspect classifications. Second, the Supreme Court in Kimel and Boeme reaffirmed and did not limit or replace the McCulloch “rational means” standard as adopted by Ex Parte Virginia, Katzenbach v. Morgan, and their progeny. 2 Thus, “congruence and proportionality” includes or is consistent with the meaning of “rational means” or “necessary and proper” as defined by McCulloch, Ex Parte Virginia, Morgan, and their progeny; or signifies the difference between legislation and constitutional interpretation, as suggested by Boeme; or recognizes the correlation between the ranges of judicial and legislative powers to enforce the Equal Protection Clause on behalf of suspect, quasi-suspect and non-suspect classes, as suggested by Kimel ; or all of the above. Assuming arguendo, however, that Kimel or Boeme purports to place any new limits *535 on Congress’ legislative power, the majority errs in applying those limits to the present case because the Court in Kimel made it very clear that its holding does not apply to § 5 legislation designed to remedy or deter governmental discrimination based on race or gender. Undoubtedly, Congress is empowered by section 5 of the Fourteenth Amendment to enact legislation prohibiting constitutional state action if such a law is a rational means of preventing or deterring unconstitutional governmental gender discrimination. In the present case, the State has not attempted to show that any particular governmental gender classification is constitutional because it serves an important government objective. Consequently, the only question in the present case is whether the FMLA, by prohibiting and requiring certain constitutional state employment practices, is a rational means of preventing and deterring unconstitutional governmental gender discrimination and is therefore appropriate section 5 legislation. I believe that it is self-evident that the FMLA is a rational means of deterring gender-based discrimination and that the Constitution does not require that Congress buttress its enactment with any particular kind of legislative record. In the alternative, however, if common knowledge and the statute itself are deemed to provide insufficient illumination, the legislative history and legislative records of the FMLA and other legislative activity from which it stems abundantly demonstrate that it is a rational means to an appropriate Congressional end. II. A. As I read the Supreme Court’s opinions in Kimel and Boeme, they do not drastically alter or restrict Congress’s authority under section 5 of the Fourteenth Amendment to enforce the equal protection of the laws provision of section 1 of the amendment as the majority contends. The majority, in effect, concludes that Kimel imposes a kind of dual probability-of-success and substantial-evidence test for determining whether an act of Congress passes muster as appropriate § 5 legislation. The majority states that: “A two part test [for determining whether legislation is ‘congruent and proportional’] emerges from Kimel [:]” [1]“ At the first step, we ... determin[e] what type of constitutional violation the statute under review is designed to prevent.” [2] “[T]he legislation will not be considered congruent and proportional!,]” and therefore, not appropriate, if: [a] “[the] legislation prohibits substantially more state employment decisions and practices than would likely be held unconstitutional under the applicable equal protection standard,” or [b] “Congress fails to include in the legislative record of a prophylactic statute any evidence of a significant pattern of unconstitutional discrimination by the States!.]” Maj. Op., at 528-25 (internal quotation marks, brackets and footnotes omitted). I do not believe that the majority’s two part probability-of-success and substantial-evidence test “emerges from” or reasonably can be drawn from Kimel . Kimel affirms that “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.” Kimel, 120 S.Ct. at 644 (citing Boerne, 521 U.S. at 518 , 117 S.Ct. 2157 ) (quoting Fitzpatrick v. Bitzer, 427 U.S. 445 , 96 S.Ct. 2666 , 49 L.Ed.2d 614 (1976)); see also Laurence H. Tribe, American Constitutional Law § 5-16, at 949 (3d. Ed.1999). It is true that the Boeme Court stated that Congress does not have “the power to decree the substance of the Fourteenth Amendment’s restrictions on the States” and that“[t]he *536 power to interpret the Constitution in a case or controversy remains in the Judiciary.” Bo erne, 521 U.S. at 519, 524 , 117 S.Ct. 2157 . Nevertheless, the Court also made clear that under section 5 Congress has broad freedom of choice or action in determining the boundary between making a substantive change in the constitution and an act of enforcement legislation, whether remedial or deterrent. Id. at 518-19 , 117 S.Ct. 2157 (citing South Carolina v. Katzenbach, 388 U.S. 301 , 326, 86 S.Ct. 803 , 15 L.Ed.2d 769 (1966)). Militating against the majority’s notion of imposing a kind of probability-of-success/substantial-evidence test upon Congress, Kimel endorses Boeme’s reaffirmation of Congressional autonomy: “As a general matter, it is for Congress to determine the method by which it will reach a decision” as to the risk of Fourteenth Amendment violations and the means by which particular evils should be prevented or remedied. Boerne, 521 U.S. at 531-32 ; see also Kimel, 120 S.Ct. at 644 . The Court did not in either case lay down any probability of success ratio, procedural method, evidentiary rule or burden of proof standard for Congress to follow in performing its separate and independent legislative function. The Court did not presume to treat Congress as an inferior court or administrative tribunal; to the contrary, Boeme and Kimel merely illustrate that when Congress’ purpose is ambiguous, as it is apt to be in section 5 legislation concerned with governmental discrimination against non-suspect classes or with generally applicable state laws imposing merely incidental burdens on religion, the Court will examine the legislative history and record to determine Congress’ objective, just as it does when the meaning of any Congressional act is vague or ambiguous. Thus, Kimel’s commentary on the ADEA legislative record and history is directed toward judicial review of section 5 legislation aimed at non-suspect class discrimination, and is not intended as an improper judicially imposed blanket stricture upon Congress’ legislative process itself: 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 [to a state act of non-suspect discrimination so irrational as to be unconstitutional even under a rational basis review] 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 is by examining the legislative record containing the reasons for Congress’ action. 120 S.Ct. at 648 . Indeed, Kimel reiterates “that lack of support is not determinative of the § 5 inquiry.” Id. (citing Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U.S. 627 , 119 S.Ct. 2199, 2209-2210 , 144 L.Ed.2d 575 (1999)) (“lack of support in the legislative record is not determinative.”); Boerne, 521 U.S. at 531-532 , 117 S.Ct. 2157 (“lack of support in the legislative record ... is not RFRA’s most serious shortcoming. Judicial deference, in most cases, is based not on the state of the legislative record Congress compiles but ‘on due regard for the decision of the body constitutionally appointed' to decide.’ ”) (quoting Oregon v. Mitchell, 400 U.S. 112, 207 , 91 S.Ct. 260 , 27 L.Ed.2d 272 (1970) (Harlan, J.)); Boeme also reiterates that it did not intend “to say, of course, that § 5 legislation requires ... egregious predicates.” Id. at 533, 117 S.Ct. 2157 ; see also Lopez v. Monterey County, 525 U.S. 266 , 119 S.Ct. 693 , 142 L.Ed.2d 728 (1999)(no examination of legislative record by 8-1 majority upholding a deterrent provision of the Voting Rights Act as appropriate legislation under § 2 of the Fifteenth Amendment); *537 id. at 295, 119 S.Ct. 693 (Thomas, J. dissenting). The majority clearly misreads Kimel as mandating that Congress use a judicially prescribed evidence and fact gathering methodology or compile a judicially prescribed evidentiary predicate in enacting any and every measure of section 5 legislation. Rather than limit Congress’ discretion, however, Kimel reaffirms that “ § 5 is an affirmative grant of power to Congress” and that “ ‘[i]t 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.’” Kimel, 120 S.Ct. at 644 . Thus, nothing in Kimel restricts Congress’ freedom to choose whether to take evidence, conduct hearings, seek experts’ opinions, or to rely on history, experience with previous legislation, notice of legislative facts, common knowledge, common sense, or a combination of such factors. The Court has not and cannot legitimately impose any set form of judicially made procedures, standards, or quantum of evidence requirements upon Congress. Congress is a unique institution, separate and independent from the judicial branch and is not required by the constitution to operate like courts or follow the rules governing adversarial litigation. From the text of Kimel itself and from the context and underpinnings of its analysis, it is evident that the majority is mistaken in concluding that Kimel narrowed the scope of Congress’ section 5 legislative enforcement powers or established a new blanket requirement of adequate legislative records for all section 5 enforcement legislation. Rather, in my opinion, Kimel does not attempt to make any new law but instead represents a straightforward application of the well-settled principles established by the Court’s prior jurisprudence. 3 B. Besides misconstruing Kimel and Boeme as placing new limits, stricter than the “rational means” standard, on Congress’ Fourteenth Amendment enforcement powers, the majority overlooks the significant difference noted by these cases between a Congressional act designed to deter governmental equal protection violations against suspect or quasi-suspect classes and other types of preventive legislation purportedly enacted pursuant to the enforcement sections of the Reconstruction Amendments. Kimel explicitly distinguished governmental discrimination on the basis of age from state action based on race, gender, or other suspect 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.” Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 440 , 105 S.Ct. 3249 , 87 L.Ed.2d 313 (1985). Older persons, again, unlike *538 those who suffer discrimination on the basis of race or gender, have not been subjected to a “history of purposeful unequal treatment.” [Massachusetts Bd. of Retirement v.] Murgia, supra, [ 427 U.S. 307 ] at 313 [ 96 S.Ct. 2562 , 49 L.Ed.2d 520 (1976)], (quoting San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 28 , 93 S.Ct. 1278 , 36 L.Ed.2d 16 (1973)). Old age also does not define a discrete and insular minority because all persons, if they live out their normal life spans, will experience it. Accordingly, as we recognized in Murgia, Bradley, and Gregory, age is not a suspect classification under the Equal Protection Clause. See, e.g., Gregory [v. Ashcroft], supra, [ 501 U.S. 452 ] at 470 [ 111 S.Ct. 2395 , 115 L.Ed.2d 410 (1991)]; [Vance v.] Bradley, supra, [ 440 U.S. 93 ] at 97 [ 99 S.Ct. 939 , 59 L.Ed.2d 171 (1979)]; Murgia, supra, at 313-314 , 96 S.Ct. 2562 . States may discriminate on the basis of age without offending the Fourteenth Amendment if the age classification in question is rationally related to a legitimate state interest. The rationality commanded by the Equal Protection Clause does not require States to match age distinctions and the legitimate interests they serve with razorlike precision. As we have explained, when conducting rational basis review “we will not overturn such [government action] unless the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that we can only conclude that the [government’s] actions were irrational.” Bradley, supra, at 97 , 99 S.Ct. 939 . In contrast, when a State discriminates on the basis of race or gender, we require a tighter fit between the discriminatory means and the legitimate ends they serve. See, e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 , 115 S.Ct. 2097 , 132 L.Ed.2d 158 (1995) (“[Racial] classifications are constitutional only if they are narrowly tailored measures that further compelling governmental interests”); Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724 , 102 S.Ct. 3331 , 73 L.Ed.2d 1090 (1982) (holding that gender classifications are constitutional only if they serve “important governmental objectives and ... the discriminatory means employed” are “substantially related to the achievement of those objectives” (citation omitted)). 120 S.Ct. at 645-646 (citations partially omitted). In other words, Kimel can be read to admonish that: Unlike age or other classifications subject to rational basis review, governmental conduct based on race or gender is deemed to reflect prejudice and antipathy because it is so seldom relevant to the achievement of any legitimate state interest. Persons who suffer discrimination on the basis of race or gender have been subjected to a history of purposeful unequal treatment. A suspect class defines a discrete and insular minority. Race and gender are suspect classes under the Equal Protection Clause. See id. Racial classifications are constitutional only if they are narrowly tailored measures that further compelling governmental interests. Gender classifications are constitutional only if they serve important governmental objectives and the discriminatory means are substantially related to the achievement of those objectives. See id. at 646. Moreover, Kimel demonstrates that the history of States’ unequal treatment of persons based on race or gender clearly justifies the strongest exercise of powers by the Court and the Congress to enforce the Fourteenth Amendment equal protection guarantee. Accordingly, there is an important corollary between the Court’s strict scrutiny of state action based on suspect classifications and Congress’ vast power to adopt strong measures to remedy and deter governmental discrimination against persons based on race or gender. In San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 28 , 93 *539 S.Ct. 1278 , 36 L.Ed.2d 16 (1973), a case cited as instructive by Kimel , the Court identified a suspect class as one “saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.” The Court in Kimel indicated that age, unlike race or gender, is not a suspect classification warranting either judicial strict scrutiny or section 5 legislation that presumes governmental action based on every age classification to be unconstitutional. For example, the Court in Kimel stated: “Older persons ... unlike those who suffer discrimination on the basis of race or gender, have not been subjected to a ‘history of purposeful unequal treatment’.” 120 S.Ct. at 645 . “The [ADEA], through its broad restriction on the use of age as a discriminating factor, prohibits substantially more state employment decisions than would likely be held unconstitutional under the applicable equal protection, rational basis standard.” Id. at 647. “Measured against the rational basis standard of our equal protection jurisprudence, the ADEA plainly imposes substantially higher burdens on state employers[, imposing] substantive requirements ... at a level akin to our heightened scrutiny cases under the Equal Protection Clause.” Id. at 648. “[Thus,] the ADEA’s protection extends beyond the requirements of the Equal Protection Clause.” Id. “Congress, through the ADEA, has effectively elevated the standard for analyzing age discrimination to heightened scrutiny.” Id. In contrast, governmental action based on race or gender classifications is presumed to be unconstitutional, warrants heightened or strict judicial scrutiny, and places the burden of justification entirely on the state. With respect to sex discrimination, the Supreme Court in United States v. Virginia, 518 U.S. 515, 531 , 116 S.Ct. 2264 , 135 L.Ed.2d 735 (1996)(VMI Case) held: “Parties who seek to defend gender-based government action must demonstrate an ‘exceedingly persuasive justification’ for that action.” (citing J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 136-37, n. 6 , 114 S.Ct. 1419 , 128 L.Ed.2d 89 (1994); Mississippi Univ. for Women, 458 U.S. at 724 , 102 S.Ct. 3331 ). Furthermore, the Court in the YMI case noted that: “Without equating gender classifications, for all purposes, to classifications based on race or national origin, the Court, in post-Reed [v. Reed, 404 U.S. 71 , 92 S.Ct. 251 , 30 L.Ed.2d 225 (1971)] decisions, has carefully inspected official action that closes a door or denies opportunity to women (or to men).” Id. at 532, 116 S.Ct. 2264 (citing J.E.B., 511 U.S. at 152, 114 S.Ct. 1419 (Kennedy, J., concurring) (case law evolving since 1971 “reveal[s] a strong presumption that gender classifications are invalid”)). “To summarize the Court’s current directions for cases of official classification based on gender[,]” the Court in the VMI case stated: “Focusing on the differential treatment or denial of opportunity for which relief is sought, the reviewing court must determine whether the proffered justification is exceedingly persuasive. The burden of justification is demanding and it rests entirely on the State. The State must show at least that the challenged classification serves important governmental objectives.” Id. at 532-533, 116 S.Ct. 2264 (internal quotations, citations and brackets omitted). As Kimel suggests, when the Supreme Court identifies a government classification of persons as suspect or quasi-suspect, it effectively broadens the scope of Congressional power to remedy or deter governmental discrimination based on that classification. See Kimel, 120 S.Ct. at 646 . Congress may rely on the presumption that state action based on the suspect classification is unconstitutional in enacting legislation that outlaws constitutional conduct as a rational means of deterring such presumptively unconstitutional govern *540 mental conduct. 4 Thus, Congress is not required to compile an evidentiary legislative record to prove that a suspect class previously identified by the Supreme Court is still “saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.” Rodriguez, 411 U.S. at 28 , 93 S.Ct. 1278 . That the class in question is marked sufficiently by the traditional indicia that identify a suspect class has already been established by the Supreme Court’s decision. In fact, Kimel’s recognition of the parallel or kinship between the powers and duties of the Court and those of the Congress to enforce the equal protection clause against governmental discrimination on the basis of race or gender with heightened stringency was anticipated by at least three Circuit Courts of Appeals in interpreting Boe rne. See Mills v. Maine, 118 F.3d 37 (1st Cir.1997); Abril v. Commonwealth of Virginia, 145 F.3d 182 (4th Cir.1998); Velasquez v. Frapwell, 160 F.3d 389, 391 (7th Cir.1998) vacated in part 165 F.3d 593 (7th Cir.1999). The Kimel Court recognized that even governmental discrimination based on classifications subject only to rational basis judicial review can present “[djifficult and intractable problems ... requiring] powerful remedies” that allow Congress under § 5 to enact “reasonably prophylactic legislation.” Kimel, 120 S.Ct. at 648 . Further, such legislation will upheld when the Court can determine that the act “is in fact just such an appropriate remedy” by, for example, “examining the legislative record containing the reasons for Congress’ action.” Id. Thus, the Court in Kimel did not impose a blanket evidentiary or proof requirement upon Congress’ section 5 powers; instead, the Court examined the ADEA’s legislative record in Kimel only to determine whether that act, which did not address state discrimination on the basis of a suspect classification, was in fact an appropriate remedy for a state act of discrimination against a non-suspect class that was so irrational as to be a denial of equal protection under the rational basis standard of review. Accordingly, I believe that the majority misreads Kimel as defining a blanket test for all section 5 legislation. The holding in *541 Kimel clearly was not intended to apply to statutes which prohibit constitutional behavior as a rational means to deter unconstitutional discrimination against a suspect or quasi-suspect class. III. To determine whether the FMLA is appropriate section 5 legislation, the majority errs by relying upon a superficial reading of the latest several cases, which as discussed supra did not alter the section 5 analysis in the present case, rather than properly examining the statute within the larger framework of the entire body of jurisprudence regarding constitutional grants of both legislative and judicial powers to enforce the equal protection of laws provisions of the Fourteenth and Fifteenth Amendments against governmental action based on suspect classifications. Section 5 of the Fourteenth Amendment is a congressional enforcement clause virtually identical to those found in the Thirteenth, Fifteenth, Eighteenth, Nineteenth, Twenty-third, Twenty-fourth, and Twenty-sixth Amendments. To determine if Congress is acting pursuant to its enforcement clause powers, we look to whether the act is a rational means to an end that is comprehended by the underlying constitutional amendment. See, e.g., South Carolina v. Katzenbach, 383 U.S. at 324, 326 , 86 S.Ct. 803 (upholding Voting Rights Act of 1965 under the Fifteenth Amendment’s enforcement clause); James Everard’s Breweries v. Day, 265 U.S. 545, 558-59, 563 , 44 S.Ct. 628 , 68 L.Ed. 1174 (1924) (upholding Supplemental Prohibition Act of 1921 under the Eighteenth Amendment’s enforcement clause); Mills, 118 F.3d at 44 ; Velasquez, 160 F.3d at 391 . 5 In Ex Parte Virginia, 100 U.S.(10 Otto) 339, 25 L.Ed. 676 (1879), the Supreme Court interpreted Congress’ power to enact “appropriate legislation” under the Civil War Amendments broadly, in line with McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 421 , 4 L.Ed. 579 (1819), concluding that “[wjhatever legislation 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.” Id. at 345-346 . In Katzenbach v. Morgan, 384 U.S. 641 , 86 S.Ct. 1717 , 16 L.Ed.2d 828 (1966), the Supreme Court held that §. 5 of the Fourteenth Amendment “is a positive grant of legislative power authorizing Congress to exercise its discretion in determining whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment.” Id. at 651, 86 S.Ct. 1717 . In particular, the Court determined that a Congressional enactment is “appropriate legislation” under section 5 for Equal Protection purposes if: [1] “under the McCulloch v. Maryland standard, [it] may be regarded as an enactment to enforce the Equal Protection Clause, [2] it is plainly adapted to that end and [3] it is not prohibited by but is consistent with the letter and spirit of the constitution.” Id. at 651 , 86 S.Ct. 1717 (footnote and internal quotations omitted). Consequently, under McCulloch, Ex parte Virginia, Katzenbach v. Morgan and their progeny Congress may, when acting pursuant to § 5 to enforce § 1 of the Fourteenth Amendment, “outlaw practices that are not themselves violations of § 1 in any *542 sense — provided one can show that outlawing those practices is a rational way to deter or to remedy actions that would violate § 1.” See Tribe, supra n. 3. As noted above, rather than being limited, the well settled principle that Congress has the power to prohibit conduct which is not itself unconstitutional as a rational means of preventing or deterring violations of the Fourteenth Amendment was recognized and reaffirmed by both Kimel and Boerne. See also Lopez, 525 U.S. at 282 , 119 S.Ct. 693 (post-Boeme case reaffirming the well established principles that (1) “the Reconstruction Amendments by their nature contemplate some intrusion into areas traditionally reserved to the States” and that (2) “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”). A number of distinguished jurists applying the Katzenbach v. Morgan test, as interpreted by Fitzpatrick , have expressly or implicitly adopted the view that section 5 legislation designed to remedy, deter or prevent denial of equal protection of the laws to a suspect or quasi-suspect class will be deemed appropriate if the Court can see that it is a rational means of furthering that purpose, as the risk that any differentiation on such basis would be unconstitutional is significant. See, e.g., Mills, 118 F.3d at 44 ; Abril, 145 F.3d at 187, n. 11; Velasquez, 160 F.3d at 391 ; Corpus v. Estelle, 605 F.2d 175, 180 (Wisdom, J.). This idea is clearly implied by, or reasonably inferred from, the Court’s opinion in Kimel . The theory is bolstered by the Court’s approval of several important civil rights measures designed to prevent or deter unconstitutional government discrimination based on race or sex by outlawing constitutional' government actions. See,e.g., Fitzpatrick, 427 U.S. at 456, 96 S.Ct. 2666 (affirming that Title VII abrogated the States’ Eleventh Amendment immunity with regards to sex discrimination including disparate effects inequality in employment); South Carolina v. Katzenbach, 383 U.S. at 324 , 86 S.Ct. 803 (upholding under the Fifteenth Amendment, certain enforcement provisions of the Voting Rights Act of 1965 designed to both remedy and deter governmental race discrimination in voting); Katzenbach v. Morgan, 384 U.S. at 652 , 86 S.Ct. 1717 (upholding the Voting Rights Act provision that banned otherwise valid English language requirement for voting as appropriate legislation enforcing the Equal Protection Clause of the Fourteenth Amendment); Lopez, 525 U.S. at 282 , 119 S.Ct. 693 (upholding the Voting Rights Act’s application of pre-clearance requirements against partially covered state governments as appropriate legislation deterring violations of the Fifteenth Amendment by county governments at the direction of the state). Accordingly, unlike the majority, I do not believe that the Constitution or the Supreme Court’s decisions require Congress to cite specific evidence of actual constitutional violations when the evil it seeks to remedy, deter or prevent is governmental discrimination against persons based on race, gender or other characteristics that the Supreme Court has recognized as marking a group as a suspect class. In the judicial enforcement of the Equal Protection Clause, a valid claim of governmental discrimination against a suspect class calls for a shifting of the burden of production and persuasion to the State to prove that the legislation “must serve a compelling government interest, and must be narrowly tailored to further that interest.” See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 235 , 115 S.Ct. 2097 , 132 L.Ed.2d 158 (1995). If the quasi-suspect classification of gender is involved, the “burden of justification is demanding and it rests entirely on the state ... [to] show at least that the challenged classification serves important governmental objec *543 tives.” VMI Case, supra, at 532-533, 116 S.Ct. 2264 . Consequently, when Congress is exercising its concurrent power and duty to enforce the Equal Protection Clause of the Fourteenth Amendment on behalf of a group which has been identified as a suspect or quasi-suspect class by the Supreme Court, Congress is not required to prove past or potential governmental discrimination against that class before proceeding to enact rational means of remedying, preventing or deterring the risk of future violations of the constitutional rights of members of that suspect class. As discussed supra, by definition, a suspect class is one which the Supreme Court has determined to have been subjected to both current and historical discriminatory treatment. See, e.g., Plyler v. Doe, 457 U.S. 202 , 216 n. 14, 102 S.Ct. 2382 , 72 L.Ed.2d 786 (1982); Rodriguez, 411 U.S. at 28 , 93 S.Ct. 1278 ; see also Mark Strasser, Suspect Classes and Suspect Classifications: On Discriminating, Unwittingly or Otherwise, 64 Temp.L.Rev. 937 (1991). Thus, it is possible for a court to determine that Congress was acting pursuant to section 5 of the Fourteenth Amendment to prevent or deter violations of § 1 of the Amendment without Congress having identified any specific evidence of race or gender discrimination by the States, if a court can ascertain that the measure is a rational means adopted to deter or prevent discrimination against suspect classes. While evidence of specific past constitutional violations against members of a suspect class may well help a court to see that deterrent legislative means are rational, it is not always necessary that Congress have developed such evidence. See, e.g., Lopez, 525 U.S. at 282 , 119 S.Ct. 693 ; Kilcullen v. New York State Dept. of Labor, 205 F.3d 77 , 80 n. 6 (2nd Cir.2000) (post-Kimel case holding “that courts may look beyond the information in the legislative record in assessing whether a statute is a valid exercise of Congress’s § 5 powers.”); Hundertmark v. State of Florida Dept. of Transportation, 205 F.3d 1272, 1276 (11th Cir.2000) (post-Kimel case holding that under the Equal Pay Act, “[wjhile it is true that Congress has not made similar findings with respect to wage discrimination in the public sector, such findings are not fatal ... ”). This is consistent with the Supreme Court’s continuous support of Congress’ ability to enact broad prophylactic legislation to prevent race or gender discrimination. See Kimel, 120 S.Ct. at 648 ; see also Mills, 118 F.3d at 47 . 6 For example, the Court and this circuit have held, without requiring specific proof of pervasive constitutional violations, that Congress may, under section 5, deter unconstitutional discrimination against suspect classes by outlawing constitutional, non-intentional discrimination against suspect classes in the workplace, 7 banning *544 constitutional literacy tests, 8 banning constitutional English language requirements for students educated only in Spanish in American schools, 9 imposing a non-constitutionally mandated requirement of pre-clearance for changes in voting standards, 10 and granting non-constitutionally mandated attorney’s fees to parties bringing victorious claims under the Civil Rights Act. 11 Thus, in this respect I agree with Judge Posner, who stated in interpreting this power that Congress can believe those who “constitute a historically disadvantaged (‘suspect’) class ... might be thought in need of special protections— of a glacis in front of the core [constitutional] prohibitions — in order to make those prohibitions fully effective.” Velasquez, 160 F.3d at 391 . Turning to an analysis of the FMLA in light of the foregoing principles, I first emphatically disagree with the majority’s piecemeal, fragmented approach to a determination of whether the statute is a congruent, proportional and rational means to prevent arid deter governmental and private gender based discrimination. The FMLA is a comprehensive, reticulated statute that prohibits and requires a synergism of constitutional employment practices as a rational means of deterring the difficult and intractable evils of governmental and private gender based diserimi-nation in employment. Although a principal goal of the FMLA is to deter sex discrimination against male and female employees in granting leave time, the statute also addresses a complex of inextricably related issues and side effects, such as, gender discrimination based on sexual stereotypes, counterbalancing of perceived inequities and incentives to discriminate, and the ramifications of the legislation for children and families. As the majority concedes, it has no authority to support its atomistic interpretative methodology by which it parses the statute into subsections, examines each in isolation, and requires that each be based on its own separate evidentiary predicate. Proceeding as the proverbial blind men examining an elephant’s parts my colleagues fail to discover the true nature of the creature as a whole. As discussed infra, the remedies implemented by the FMLA are not distinct, but rather were found interdependently necessary as a whole to effectuate Congress’ stated purpose to deter and prevent unconstitutional discrimination. The FMLA undoubtedly was enacted to deter or prevent unconstitutional gender discrimination against employees by both governmental and private employers. Section 2601 of the FMLA lists the findings and purposes of the FMLA related to *545 gender discrimination by public and private employers: (a) Congress finds that: (5) due to the nature of the roles of men and women in our society, the primary responsibility for family care-taking often falls on women, and such responsibility affects the working Uves 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. (b) It is the purposes of this Act (1) to balance the demands of the workplace with the needs of families, to promote the stability and economic security of families, and to promote national interests in preserving family integrity; (2) to entitle employees to take reasonable leave for medical reasons, for the birth or adoption of a child, and for the care of a child, spouse, or parent who has a serious health condition; (4) to accomplish the purposes described in paragraphs (1) and (2) in a manner that, consistent with the Equal Protection Clause of the Fourteenth Amendment, minimizes the potential for employment discrimination on the basis of sex by ensuring generally that leave is available for eligible medical reasons (including maternity-related disability) and for compelling family reasons, on a gender-neutral basis. (5) to promote the goal of equal employment opportunity for women and men, pursuant to such clause. 29 U.S.C. § 2601 (a)(5)-(6), (b)(l)-(2), (b)(4)-(5); see also S.Rep. No. 103-3 at 16 (1993), U.S. Code Cong. &amp; Admin. News at 3, 18 (“A law providing special protection to women or any defined group ... runs the risk of causing discriminatory treatment. S.5, by addressing the needs of all workers, avoids such a risk.”) and H.R.Rep. No. 103-8(1), at 29 (1993). It is thus clear that one principal purpose of the FMLA was to act as legislation under section 5 of the Fourteenth Amendment to prevent or deter sex discrimination in the granting of family leave by both private and public employers. Because a gender classification, as a basis for state action, is quasi-suspect under the Equal Protection Clause and calls for heightened scrutiny, 12 the sole inquiry under the Supreme Court’s cases, including Kimel and Boeme, is whether the FMLA’s prohibition of certain constitutional state conduct is a rational means to deter gender discrimination by government employers. By imposing a fixed amount of leave time for both men and women, Congress has insured that no employer, private or public, will be able to discriminate in granting leave time based on historical, irrational gender-based stereotypes by either refusing to hire women because of their perceived role as the primary caregiver and nurturer of families or by refusing to allow leave time to men based on the assumption that women are better suited for such roles. Thus, it clearly cannot be denied that the FMLA is a rational means of deterring governmental gender discrimination against employees. That Congress has not chosen a less intrusive *546 means to achieve this end or that this court would have adopted a narrower means is entirely irrelevant to the sole issue at hand — whether such a means is a rational way to deter governmental sex discrimination. 13 As it is impossible to say, in view of our common political, social and historical knowledge, that the legislation is not a rational means of deterrence of unconstitutional gender discrimination, I believe the FMLA was properly enacted under Congress’ section 5 enforcement powers and thus properly abrogates the States’ Eleventh Amendment immunity. rv. Even if it were required that Congress compile a legislative record to demonstrate the existence of past and current gender discrimination by government employers as a predicate for the enactment of the FMLA pursuant to section 5 (although I believe there is no such constitutional requisite), the procedural and legislative history of the FMLA clearly provides more than a sufficient predicate of evidence, findings and facts. The FMLA is the end result of a lengthy process intended, through the imposition of employment standards, to deter sex discrimination against both men and women in the granting of leave time. The legislative history and record bear out that, unlike the majority’s reading, Congress enacted the FMLA as a single, comprehensive response to prevent sex discrimination in governmental and private workplaces that Congress had unsuccessfully attempted to address through more narrowly tailored legislation for over three decades. Initially, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., was intended to remedy discrimination in the workplace based on, inter alia, sex. In 1972, perceiving widespread discrimination on the basis of sex in educational institutions, Congress amended Title VII to extend its coverage to such institutions. See H.R. Rep. 92-238 at n. 6, U.S. Code Cong. &amp; Admin. News at 2137, 2155 (“Discrimination against minorities and women in the field of education is as pervasive as discrimination in any other area of employment. ... When they have been hired into educational institutions ... women have been relegated to positions of lesser standing than their male counterparts.”). In 1976, however, the Supreme Court held that Title VII did not protect discrimination based on pregnancy under the theory that such discrimination is not discrimination based on sex, but rather is discrimination among women based on a medical condition. See General Electric Co. v. Gilbert, 429 U.S. 125 , 97 S.Ct. 401 , 50 L.Ed.2d 343 (1976) (citing Geduldig v. Aiello, 417 U.S. 484 , 94 S.Ct. 2485 , 41 L.Ed.2d 256 (1974)). In response, Congress amended section 701 of Title VII by enacting the Pregnancy Discrimination Act (“PDA”), effectively overruling Gilbert by amending the definition of discrimination on the basis of sex to include discrimination on the basis of pregnancy. Although not directly addressing Geduldig , the Court did implicitly recognize that the PDA was proper prophylactic legislation to prevent sex discrimination under Title VII and thus reversed Gilbert in full. See Newport News Shipbuilding and Dry Dock Co. v. E.E.O.C., 462 U.S. 669, 676 , 103 S.Ct. 2622 , 77 L.Ed.2d 89 (1983) (recognizing that the PDA “not only overturned the specific holding in [Gilbert] but also rejected the test of discrimination employed by the Court in that case”). The PDA, although amending the definition of discrimination to include discrimination based on pregnancy, failed to affirmatively grant pregnant workers leave time or the right to return to their job; rather, an employer only needed to provide such benefits if he provided them to other temporarily disabled workers. In *547 response, the State of California enacted legislation mandating these rights for pregnant workers. ' The California statute was soon challenged in federal court on the grounds that it required employers to discriminate against non-pregnant employees in violation of Title VII as amended by the PDA. Although eventually reversed by the Ninth Circuit and the Supreme Court, the Central District of California held that the California statute did so conflict with Title VII. See California Federal Savings and Loan Assoc. v. Guerra, 479 U.S. 272 , 107 S.Ct. 683 , 93 L.Ed.2d 613 (1987). Perceiving that enacting the PDA had not achieved the intended result of preventing discrimination against either women or men in the granting of leave time in that the States felt it necessary to affirmatively grant pregnancy leave to women and not men, in 1985 Congress began considering the issue of family and medical leave. See generally Sabra Craig, Note, The Family and Medical Leave Act of 1993: A Survey of the Act’s History, Purposes, Provisions and Social Ramifications, 44 Drake L.Rev. 51 (1995). In 1985, Representative Pat Schroeder introduced the Parental and Disability Leave Act of 1985 (“PDLA”) in the House of Representatives. The PDLA provided for eighteen weeks of unpaid leave for both mothers and fathers of newborn or adopted children and twenty-six weeks of unpaid leave for employees’ non-work related disabilities or sick children. The PDLA was not considered by the House of Representatives, but was resubmitted in 1986 by Representative William Clay and renamed the Parental and Medical Leave Act of 1986 (“PMLA”). The Subcommittee on Compensation and Employee Benefits and the Committee on Post Office and Civil Service conducted joint hearings on the PMLA, as did the Subcommittee on Labor Management Standards, to determine the extent of discrimination against men and in favor of women in the workplace with regard to taking leave to care for sick family members. The full House of Representatives once again failed to consider the bill. In 1989, Representative Clay re-introduced the Family and Medical Leave Act in the House of Representatives. The 1989 version, which was substantially similar to the 1987 version, was passed by both the House of Representatives and the Senate but was vetoed by President Bush in June 1990. In January 1991 Senator Christopher Dodd introduced the Family and Medical Leave Act of 1991 to the Senate, which was identical to the bill vetoed by the President in 1991. Congress then amended the bill, changing solely the amount of mandatory leave per year from between eighteen to twenty-six weeks to twelve weeks. The Act was eventually passed by both the House of Representatives and the Senate, only to be vetoed once again in September .1992 by President Bush. See generally H.R.Rep. No. 103-8(11). In January 1993, Representative William Ford once again introduced the Family and Medical Leave Act (“FMLA”) to the House of Representatives. The leave provisions of the 1993 FMLA were substantially similar to those of the amended 1991 FMLA. H.R.Rep. No. 103-8(11) (1993). In considering enactment of the 1993 FMLA, the House of Representatives considered both new evidence of discrimination based on sex with regard to leave and reviewed the 'testimony given at hearings with respect to the prior “substantially similar” bills considered in prior years. H.R.Rep. No. 103-8(1). The 1993 FMLA was passed by both the House of Representatives and the Senate, and was signed into law in February 1993 by President Clinton. As the House Report indicates, the genesis of the FMLA has its roots in the 1985 proposed legislation and is substantially similar to that legislation. Further, the House Report indicates that not only did Congress know of the previous efforts to enact the FMLA, but it based each subsequent version on prior versions. The House of Representatives makes. multiple *548 references to the committee hearings held for the 1986 PMLA and utilizes some of the findings as a basis for enacting the FMLA. H.R.Rep. No. 108-8(1). As a result of these references it is not only permissible, but necessary, to look to the legislative history and intended purposes of these earlier bills as well as the one finally enacted into law in 1993 to determine Congressional intent. 14 It appears clear from the legislative history that Congress perceived sex discrimination in the granting of family and medical leave, notably in favor of granting such leave to women, and was acting accordingly in enacting the FMLA. See, e.g., S.Rep. No. 103-3, at 14 — 15 (1993) (discussing studies by the Bureau of Labor Statistics highlighting the discrepancy between the availability of maternity and paternity leave). Testimony in hearings throughout the legislative process demonstrated that such discrepancies occurred in both the private and public sectors. See, e.g., Parental and Medical Leave Act of 1986: Hearings on H.R. 1.800 Before the Sub-comm. on Labor Management Standards, 99th Cong., 30, 147 (testimony of Meryl Frank, Director of the Yale Bush Center Infant Care Leave Project, that “[w]e found that public sector leaves don’t vary very much from private sector leaves.”); id. at 147 (statement of the Washington Council for Lawyers that “men, both in the public and private sectors, receive notoriously discriminatory treatment in their request for such leave.”); Parental and Medical Leave Act of 1987: Hearings, on S.249 Before the Subcomm. on Children, Family, Drugs and Alcoholism, 100th Cong., 364-74 (testimony of Elaine Gordon, Member of the Florida House of Representatives, that leave is only granted to female [public] employees in Florida and that Florida rejected extending such leave to men); id. at 385 (testimony of Gerald McEntee, International President, American Federation of State, County and Municipal Employees that “the vast majority of our [public employment] contracts, even though we look upon them with great pride, really cover essentially maternity leave, and not paternity leave. And this is so key to the bill that it opens up the eyes of employers and opens up the eyes of America.”); Family and Medical Leave Act of 1989: Hearings on H.R. 770 Before the Subcomm. on Labor-Management Relations, 101st Cong. 271 (statement of the Concerned Alliance of Responsible Employers that 13 states grant family leave to women and not men). 15 The House Report on the 1993 FMLA indicates that Congress was aware of such testimony and at least partially relied on this testimony in enacting provisions of the current FMLA. See, e.g., H.R.Rep. No. 103-8(1) (1993) (“Meryl Frank, director of the Infant Care Leave Project of the Yale Bush Center in Child Development and Social Policy, reported to the committee on the 1986 conclusions and recommendations of the Project’s Advisory Committee on Infant Care Leave.”). Further, the Senate Report specifically mentioned that the FMLA was passed in response to “govern *549 ment policies that have failed to adequately respond to recent economic and social changes that have intensified the tensions between work and family.” S.Rep. No. 103-3 at 4 (1993), U.S. Code Cong. &amp; Admin. News at 6. It thus seems clear that Congress intended to enact the FMLA at least in part to directly remedy actual incidents of sex discrimination in the granting of family leave time that existed in both the public and private sectors. See generally Garrett v. University of Alabama at Birmingham Board of Trustees, 193 F.3d 1214, 1228-30 (11th Cir.1999) (Cook, J., dissenting) (providing a comprehensive discussion of the background of the FMLA). Thus, in this respect I cannot agree with the majority that “Congress identified no pattern of discrimination by the States with respect to the granting of employment leave for the purpose of providing family care,” nor can I agree that “the legislative record for this provision is devoid of evidence of public sector discrimination” against the temporarily disabled, as this was precisely what the PDA and then the FMLA were enacted in response to. Maj. Op. at 525-26, 526-27. Thus, even under the majority’s reasoning, I believe there is more than a sufficient evidentiary and factual predicate in the legislative record to support Congress’s determination that the FMLA was a rational means of deterring and preventing sex discrimination by governmental employers and thus was enacted pursuant to its section 5 powers. As all parties agree that Congress provided the necessary clear statement of its intent to abrogate, the FMLA as appropriate section 5 legislation properly abrogates the States’ Eleventh Amendment immunity under this rationale as well. . As I understand the majority opinion, it views Kimel and City of Boeme as a departure of revolutionary proportions from the Court's *534 precedents and doctrine of stare decisis: Congress can no longer enact any legislation to deter equal protection violations of any kind without a legislative record evincing a significant pattern of unconstitutional state discrimination, and preventive legislation designed to deter state discrimination against suspect or quasi-suspect classes is not appropriate if that legislation prohibits substantially more constitutional than unconstitutional state employment decisions or actions. . The majority's conflation of the "rational means” standard for appropriate Congressional legislation under § 5 of the Fourteenth Amendment with the "rational basis” equal protection scrutiny level is unfortunate and tends to obstruct coherent dialogue. See Maj. Op., at 529-31. The majority confuses the similar-sounding terms, “rational means” and "rational basis,” — terms which in fact denote strategically different constitutional analyses. “Rational means” has been used to describe Congressional legislation under § 5 of the Fourteenth Amendment that appropriately remedies or deters states' violations of § 1 of the Amendment. See Katzenbach v. Morgan, 384 U.S. 641, 650-651 , 86 S.Ct. 1717 , 16 L.Ed.2d 828 (1966)("[T]he McCulloch v. Maryland standard is the measure of what constitutes 'appropriate legislation’ under § 5 of the Fourteenth Amendment.”) The rational basis test is used to determine whether state discrimination against a non-suspect class is constitutionally infirm. See Kimel, 120 S.Ct. 631, 646 (2000). . Accordingly, I disagree with the majority's suggestion that Kimel calls into question this circuit’s recognition of the abrogation of Eleventh Amendment immunity by the ADA under section 5 of the Fourteenth Amendment in Coolbaugh v. State of Louisiana, 136 F.3d 430 (5th Cir.1998). Compared to the FMLA, the ADA presented a more debatable abrogation question, as it is designed to remedy and deter discrimination on the basis of disability or handicap, rather than race or gender. However, Coolbaugh is binding on the present panel, regardless of the majority’s predilections. See Neinast v. Texas, 217 F.3d 275 (5th Cir.2000) (post-Kimel case recognizing Cool-baugh as binding). Moreover, reasonable jurists in other circuits do not read Kimel as auguring Coolbaugh's demise. See Kilcullen v. New York State Dept. of Labor, 205 F.3d 77 (2nd Cir.2000) (post-Kimel case finding the ADA properly enacted under section 5); Erickson v. Board of Governors of State Colleges and Universities for Northeastern Illinois University, 207 F.3d 945, 953 (7th Cir.2000) (Wood, J., dissenting). Consequently, it would be more appropriate for the majority to consider how Coolbaugh might be reconciled with Kimel , rather than abandon Coolbaugh prematurely. . Governmental gender classifications are presumptively invalid. E.g., United States v. Virginia, 518 U.S. at 532 , 116 S.Ct. 2264 (citing J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 152 , 114 S.Ct. 1419 , 128 L.Ed.2d 89 (Kennedy, J. concurring)). Section 5 legislation outlawing constitutional conduct to prevent or deter violations of suspect or quasi-suspect classes’ rights has consistently been upheld. See, e.g., Fitzpatrick v. Bitzer, 427 U.S. 445, 453, n. 9 , 96 S.Ct. 2666 , 49 L.Ed.2d 614 (1976)(federal court action under Title VII by present and retired male employees of Connecticut against the state, based on governmental gender discrimination in state retirement plan, was not precluded by the Eleventh Amendment. It was undisputed that Congress enacted Title VII, which grants remedial and deterrent protection to suspect and quasi-suspect classes, and its 1972 Amendments extending coverage to the States as employers, pursuant to its power under § 5 of the Fourteenth Amendment.); Katzenbach v. Morgan, 384 U.S. 641, 652 , 86 S.Ct. 1717 , 16 L.Ed.2d 828 (1966)(upholding § 4(e) of the Voting Rights Act of 1965 as appropriate legislation under § 5 of the Fourteenth Amendment "to secure for the Puerto Rican community residing in New York nondiscriminatory treatment by government-both in the imposition of voting qualifications and the provision or administration of governmental services, such as public schools, public housing and law enforcement.”); Lopez v. Monterey County, 525 U.S. 266 , 119 S.Ct. 693 , 142 L.Ed.2d 728 (1999)(Hispanic voters successfully challenged unprecleared ordinance changing methods for electing county judges enacted by Monterey County, which was designated a jurisdiction covered by the preclearance requirement, § 5 of Voting Rights Act of 1965, although the election change was required by state law, California itself was not a covered jurisdiction, and, according to Justice Thomas’ dissent, id. at 295-296, 119 S.Ct. 693 , there had "been no legislative finding that the State of California has ever intentionally discriminated on the basis of race, color, or ethnicity with respect to voting.”) . See also Laurence H. Tribe, American Constitutional Law, § 5-17, at 959-960 (3rd ed.1999) [hereinafter Tribe]: "Katzenbach v. Morgan and all its progeny spanning nearly 34 years by the turn of the century, have now settled beyond question that, in order to enforce § 1 of the Fourteenth Amendment, Congress may, acting pursuant to § 5, outlaw practices that are not themselves violations of § 1 in any sense — provided one can show that outlawing those practices is a rational way to deter or to remedy actions that would violate § 1.” (Footnote and emphasis omitted). . This is also consistent with the fact that the Supreme Court has never held that a statute intended to remedy race or sex discrimination was not enacted pursuant to section 5 of the Fourteenth Amendment. Compare Kimel, 120 S.Ct. at 649 ; Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U.S. 627 , 119 S.Ct. 2199 , 144 L.Ed.2d 575 (1999) (holding the Patent Remedy Act not enacted pursuant to section 5); Boerne, 521 U.S. at 531 , 117 S.Ct. 2157 (holding the Religious Freedom Restoration Act not enacted pursuant to section 5) with Fitzpatrick v. Bitzer, 427 U.S. 445 , 96 S.Ct. 2666 , 49 L.Ed.2d 614 (1976) (holding Title VII of the Civil Rights Act was enacted pursuant to section 5). . See Fitzpatrick, 427 U.S. at 456 , 96 S.Ct. 2666 . Although the Constitution does not prohibit non-intentional acts that disparately impact suspect classes, Washington v. Davis, 426 U.S. 229 , 96 S.Ct. 2040 , 48 L.Ed.2d 597 (1976), Title VII does. Thus, the Supreme Court has already once found that Congress is acting pursuant to section 5 when outlawing broad swaths of conduct that are not unconstitutional as a means to deter unconstitutional discrimination on the basis of race or sex. See Cole, 1997 Sup.Ct.Rev. at 45. This circuit has recently reaffirmed this holding. See Ussery v. Louisiana, 150 F.3d 431, 434 (5th Cir.1998). . See Oregon v. Mitchell, 400 U.S. 112 , 91 S.Ct. 260 , 27 L.Ed.2d 272 (1970); South Carolina v. Katzenbach, 383 U.S. at 336 , 86 S.Ct. 803 . The Court in Boeme specifically cited passages from South Carolina v. Katzenbach that support Congress’ ability to enact legislation based on Congress’ rational belief that such legislation would deter discrimination without specific proof that such discrimination had occurred. Boerne, 521 U.S. at 526 , 117 S.Ct. 2157 ("Congress could have determined that racial prejudice is prevalent throughout the Nation, and that literacy tests unduly lend themselves to discriminatory application, either conscious or unconscious”) (opinion of Harlan, J.); ("[Tjhere is no question but that Congress could legitimately have concluded that the use of literacy tests anywhere within the United States has the inevitable effect of denying the vote to members of racial minorities whose inability to pass such tests is the direct consequence of previous governmental discrimination in education”) (opinion of Brennan, J.); ("[Njationwide [suspension of literacy tests] may be reasonably thought appropriate when Congress acts against an evil such as racial discrimination which in varying degrees manifests, itself in every part of the country”) (opinion of Stewart, J.) (internal citations omitted). . Katzenbach v. Morgan, 384 U.S. at 651 , 86 S.Ct. 1717 . . See Lopez, 525 U.S. at 282 , 119 S.Ct. 693 ; id. at 295 , 119 S.Ct. 693 (Thomas, J., dissenting) (noting that the Court did so without requiring specific proof in the legislative record); City of Rome v. United States, 446 U.S. 156 , 100 S.Ct. 1548 , 64 L.Ed.2d 119 (1980). . See Corpus, 605 F.2d at 180 . . See, e.g., United States v. Virginia, 518 U.S. at 533 , 116 S.Ct. 2264 (affirming the heightened constitutional scrutiny for sex discrimination); Orr v. Orr, 440 U.S. 268 , 99 S.Ct. 1102 , 59 L.Ed.2d 306 (1979) (holding state alimony laws may not discriminate against men); Califano v. Goldfarb, 430 U.S. 199 , 208 n. 8, 97 S.Ct. 1021 , 51 L.Ed.2d 270 (1977) (holding discrimination against men must meet heightened constitutional scrutiny). . Further, as discussed, infra, Congress in fact did attempt to deter gender discrimination through narrower means by enacting the Pregnancy Discrimination Act, and found such means ineffective. . Despite their protestations, it appears that the majority agrees in that the only legislative history cited in the majority opinion is from these earlier bills, including the 1987 act. See Maj.Op. at 525-26. . The majority relies heavily on the statement in Kimel that the Court would not impute evidence of age discrimination by private employers to the States. See Kimel, 120 S.Ct. at 649 . This statement must be taken in the context of Kimel , i.e., that evidence of private discrimination based on age has no probative value with respect to unconstitutional discrimination based on age by the States because it is so unlikely that discrimination engaged in by private employers would be considered unconstitutional if engaged in by States. With respect to race and gender, however, because of the significant likelihood that any discrimination by States on those bases would be unconstitutional, evidence that such discrimination is widespread throughout the private sector may be sufficient in itself to justify Congressional enactment of prophylactic legislation to prevent such widespread discrimination from being performed by the States. Cf. Florida Prepaid, 119 S.Ct. at 2207 .