                                RECOMMENDED FOR FULL-TEXT PUBLICATION
                                     Pursuant to Sixth Circuit Rule 206
                                             File Name: 05a0386p.06

                        UNITED STATES COURT OF APPEALS
                                         FOR THE SIXTH CIRCUIT
                                           _________________


                                                    X
                              Plaintiff-Appellant, -
 MARY TOUVELL,
                                                     -
                                                     -
                                                     -
                                                         No. 04-4011
          v.
                                                     ,
                                                      >
 OHIO DEPARTMENT OF MENTAL RETARDATION AND           -
                                                     -
                             Defendant-Appellee. -
 DEVELOPMENTAL DISABILITIES,

                                                     -
                                                    N
                     Appeal from the United States District Court
                    for the Southern District of Ohio at Columbus.
                   No. 04-00250—James L. Graham, District Judge.
                                            Argued: July 21, 2005
                                  Decided and Filed: September 9, 2005
 Before: BOGGS, Chief Judge; BATCHELDER, Circuit Judge; and GADOLA, District Judge.*
                                             _________________
                                                   COUNSEL
ARGUED: John S. Marshall, MARSHALL & MORROW, Columbus, Ohio, for Appellant. Diane
Richards Brey, OFFICE OF THE ATTORNEY GENERAL, Columbus, Ohio, for Appellee.
ON BRIEF: John S. Marshall, Louis A. Jacobs, MARSHALL & MORROW, Columbus, Ohio, for
Appellant. Diane Richards Brey, Stephen P. Carney, Douglas R. Cole, OFFICE OF THE
ATTORNEY GENERAL, Columbus, Ohio, for Appellee.
                                             _________________
                                                 OPINION
                                             _________________
        BOGGS, Chief Judge. Mary Touvell appeals the district court’s dismissal for lack of subject
matter jurisdiction of her claim against the Ohio Department of Mental Retardation and
Developmental Disabilities (“the Department”) under the Family and Medical Leave Act (“FMLA”),
29 U.S.C. §§ 2601 et seq. The district court held that the FMLA’s purported abrogation of Ohio’s
Eleventh Amendment immunity was unconstitutional as it related to the “self-care” provision of the
FMLA under which Touvell sought leave, and that Ohio was accordingly immune from suit. For
the reasons that follow, we affirm the judgment of the district court.

        *
          The Honorable Paul V. Gadola, United States District Judge for the Eastern District of Michigan, sitting by
designation.


                                                         1
No. 04-4011           Touvell v. Ohio Dep’t of Mental Development                                Page 2


                                                   I
       Mary Touvell was an unclassified Therapeutic Program Worker employed at the Cambridge
Developmental Center, an institution for the mentally retarded operated by the Department. There
is no dispute that the Department is a state agency for the purpose of Eleventh Amendment
immunity analysis.
        Touvell began work at the Developmental Center on September 9, 2002. One of her duties
was to lift patients. According to her complaint, she began to experience back problems in
November 2002. On or about September 5, 2003, Touvell’s physician excused her from work
because of her back pain. Touvell returned to work on September 16, 2003, but the lifting demands
of her job continued to cause her distress, so her physician excused her from work from September
19 through October 17, 2003. Touvell was terminated on September 29, 2003, for excessive
absenteeism.
        Touvell brought this case under the FMLA, alleging that the Department interfered with her
entitlement to leave under 29 U.S.C. § 2612(a)(l)(D), which requires employers to allow employees
to take unpaid leave to care for their own serious health conditions, and that the Department
retaliated against her for having taken leave, in violation of 29 U.S.C. § 2615(a)(1). For the
purposes of this appeal we must assume that Touvell’s leave was in fact protected by the FMLA.
See R.S.W.W., Inc. v. City of Keego Harbor, 397 F.3d 427, 433 (6th Cir. 2005) (“In reviewing a
motion to dismiss, we must construe the complaint in the light most favorable to the plaintiff . . . .”).
        On July 30, 2004, the district court dismissed the case for lack of subject matter jurisdiction,
on the sole ground that the FMLA’s purported abrogation of Ohio’s Eleventh Amendment immunity
was unconstitutional. The district court acknowledged that the Supreme Court had held in Nevada
Department of Human Resources v. Hibbs, 538 U.S. 721 (2003), that the “family-care” provision
of the Act, § 2612(A)(1)(C), which entitles employees to take leave to care for seriously ill family
members, abrogated state immunity, but held that the reasoning of Hibbs did not apply to the “self-
care” provision under which Touvell claimed to be entitled to leave. Touvell timely appealed.
                                                   II
       We review de novo the district court’s order granting the Department’s motion to dismiss
on Eleventh Amendment grounds. See Timmer v. Mich. Dep’t of Commerce, 104 F.3d 833, 836 (6th
Cir. 1997).
        The Eleventh Amendment to the United States Constitution provides: “The Judicial power
of the United States shall not be construed to extend to any suit in law or equity, commenced or
prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects
of any Foreign State.” U.S. Const. amend. XI. The Eleventh Amendment provides a type of
sovereign immunity, and deprives the federal courts of jurisdiction to entertain a suit brought by an
individual against a nonconsenting State. See Hibbs, 538 U.S. at 726; Hans v. Louisiana, 134 U.S.
1, 15 (1890).
        Congress may, however, abrogate such immunity if it (1) makes its intention to abrogate
unmistakably clear in the language of the statute, and (2) acts pursuant to a valid exercise of its
power under § 5 of the Fourteenth Amendment. See Hibbs, 538 U.S. at 726. Section 5 of the
Fourteenth Amendment grants Congress the power “to enforce” the substantive guarantees of § 1
of the Amendment, among them equal protection of the laws, by enacting “appropriate legislation.”
“Congress may, in the exercise of its § 5 power, do more than simply proscribe conduct that [the
Supreme Court has] held unconstitutional.” Hibbs, 538 U.S. at 728; see also Bd. of Trustees of Univ.
of Ala. v. Garrett, 531 U.S. 356, 363 (2001) (“‘Congress’ power “to enforce” the Amendment
includes the authority both to remedy and to deter violation of rights guaranteed thereunder by
No. 04-4011           Touvell v. Ohio Dep’t of Mental Development                               Page 3


prohibiting a somewhat broader swath of conduct, including that which is not itself forbidden by the
Amendment’s text.’”) (quoting Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 81 (2000)). “In other
words, Congress may enact so-called prophylactic legislation that proscribes facially constitutional
conduct, in order to prevent and deter unconstitutional conduct.” Hibbs, 538 U.S. at 727-28.
        It remains the province of the courts, however, to determine the Fourteenth Amendment’s
substantive meaning and define the substance of constitutional guarantees. Id. at 728. Furthermore,
§ 5 legislation that reaches beyond the scope of § 1’s specific guarantees must be an appropriate
remedy for identified constitutional violations, not “an attempt to substantively redefine the States’
legal obligations.” Ibid. (citing Kimel, 528 U.S. at 88). Hibbs reaffirmed that we must distinguish
appropriate prophylactic legislation from an impermissible redefinition of substantive rights by
applying the test set forth in City of Boerne v. Flores, 521 U.S. 507 (1997): valid § 5 legislation must
exhibit “congruence and proportionality between the injury to be prevented or remedied and the
means adopted to that end.” Hibbs, 538 U.S. at 728 (quoting City of Boerne, 521 U.S. at 520).
         The clarity of Congress’s intent to abrogate state sovereign immunity with regard to the
provisions of the FMLA is “not fairly debatable.” Ibid. The Act enables employees to seek
damages “against any employer (including a public agency) in any Federal or State court of
competent jurisdiction,” 29 U.S.C. § 2617(a)(2), and Congress defined “public agency” to include
both “the government of a State or political subdivision thereof” and “any agency of . . . a State, or
a political subdivision of a State,” §§ 203(x), 2611(4)(A)(iii). This case therefore turns on whether
Congress acted within its constitutional authority when it sought to abrogate the states’ immunity
for purposes of § 2612(a)(1)(D), the self-care provision of the Act under which Touvell claimed to
be entitled to leave.
                                                  III
        In Sims v. University of Cincinnati, 219 F.3d 559 (6th Cir. 2000), we held that the FMLA
as a whole was not a valid exercise of Congress’s power under §5 of the Fourteenth Amendment
because, while Congress had clearly expressed its intent to abrogate state sovereign immunity, the
legislative history of the FMLA “discloses no pattern of discrimination by the States, let alone a
pattern of constitutional violations.” Id. at 564. Rejecting arguments by the United States, an
intervenor in the case, that the purpose of the FMLA was to remedy and prevent employment
discrimination against women and against individuals with serious health conditions, we stated that
“the most relevant legislative history, the committee reports from the 1993 bill that was finally
enacted into law, reveals that Congress had little concern with gender-related discrimination, and
none at all with discrimination against persons with serious medical conditions.” Rather, we
concluded, the legislative history of the Act “suggest[s] that Congress was crafting a piece of social
legislation rather than a remedy for ongoing state violations of the Equal Protection Clause.” Ibid.
         We acknowledged that “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. But we also noted that Kimel “makes clear that Congress may not enact
broad prophylactic legislation where it has failed to uncover any significant pattern of
unconstitutional discrimination by the States.” Sims, 219 F.3d at 565. And, because Congress had
failed, in our opinion, to uncover such a pattern with regard to the FMLA, we held that the Act was
unconstitutionally overbroad. Ibid.
      We identified two aspects of the FMLA that led to this conclusion. First, we noted that state
employers could, consistently with the Fourteenth Amendment, discriminate with regard to
employee leave on the basis of gender provided that such discrimination “serves important
governmental objectives and the discriminatory means employed are substantially related to the
No. 04-4011           Touvell v. Ohio Dep’t of Mental Development                             Page 4


achievement of those objectives.” Ibid. (citing Miss. Univ. for Women v. Hogan, 458 U.S. 718, 724
(1982)). The FMLA, however, mandates leave for all covered employees, and would therefore
prevent forms of discrimination by the states that would not be considered unconstitutional. Ibid.
Second, we found that the affirmative requirements of the FMLA made it hard to characterize as a
remedial measure: “‘The FMLA’s remedy thus is simply not corrective in its character, adapted to
counteract and redress the operation of such prohibited state laws or proceedings of state officers.’”
Ibid. (quoting United States v. Morrison, 529 U.S. 598, 625 (2000)). We concluded that “[i]n light
of the broad scope of its substantive requirements, and the lack of evidence of widespread and
unconstitutional gender discrimination by the States, we hold that the FMLA is not a valid exercise
of Congress’s power under § 5 of the Fourteenth Amendment.” Id. at 566.
         Other circuits courts reached similar conclusions. The Third and Eighth Circuits agreed with
us that the entire Act was unconstitutional. See Townsel v. Missouri, 233 F.3d 1094, 1095 (8th Cir.
2000); Chittister v. Dep’t of Cmty. and Econ. Dev., 226 F.3d 223, 229 (3d Cir. 2000). The Fifth
Circuit held that neither subsection (C) nor subsection (D) of § 2612(a)(1) constitutionally abrogated
state sovereign immunity. See Kazmier v. Widmann, 225 F.3d 519, 526-27, 529 (5th Cir. 2000).
And, most significant for the resolution of this appeal, the First, Second, Fourth, and Eleventh
Circuits found only the Act’s self-care provision, found in §2612(a)(1)(D), unconstitutional. See
Laro v New Hampshire, 259 F 3d 1, 17 (1st Cir. 2001); Lizzi v. Alexander, 255 F.3d 128, 136 (4th
Cir. 2001), cert. denied, 534 U.S. 1081 (2002), reh’g denied, 535 U.S. 952 (2002); Hale v. Mann,
219 F.3d 61, 69 (2d Cir. 2000); Garrett v. Univ. of Ala. Bd. of Trs., 193 F.3d 1214, 1219 (11th Cir.
1999), rev’d on other grounds, 531 U.S. 356 (2001). The Ninth Circuit, however, held that one
provision of the Act, the family-care leave requirement of § 2612(a)(1)(C), did constitute a valid
exercise of Congress’s power to abrogate state sovereign immunity. Hibbs v. HDM Dep’t of Human
Res., 273 F.3d 844, 873 (9th Cir. 2001), aff’d, 538 U.S. 721 (2003). The Ninth Circuit
acknowledged that “[w]e do not mean here to state any view with regard to the personal disability
provision of the FMLA.” Id. at 868.
          Subsequently, the Supreme Court held in Hibbs that an action against a state under
§ 2612(a)(1)(C) was not barred by the Eleventh Amendment. That section of the FMLA provides
for leave to permit the employee to care for a spouse, child, or parent who has a serious health
condition. The Court held that the Act was intended by Congress to protect a right guaranteed by
the Equal Protection Clause, namely the right to be free from gender-based discrimination in the
workplace. Hibbs, 538 U.S. at 728; see also 29 U.S.C. § 2601(a)(5) (“due to the nature of the roles
of men and women in our society, the primary responsibility for family caretaking often falls on
women, and such responsibility affects the working lives of women more than it affects the working
lives of men.”); §§ 2601(b)(4) & (5) (“to accomplish the [Act’s other] purposes . . . in a manner that
. . . minimizes the potential for employment discrimination on the basis of sex by ensuring generally
that leave is available . . . on a gender-neutral basis[,] and to promote the goal of equal employment
opportunity for women and men . . . .”).
        The Supreme Court found that Congress had in fact identified a pattern of gender
discrimination on the part of the states: “[T]he States’ record of unconstitutional participation in,
and fostering of, gender-based discrimination in the administration of leave benefits is weighty
enough to justify the enactment of prophylactic § 5 legislation.” Hibbs, 538 U.S. 721. This finding
was premised on the heightened level of scrutiny triggered by the gender discrimination identified
by Congress. Id. at 736. “Because the standard for demonstrating the constitutionality of a
gender-based classification is more difficult to meet than our rational-basis test – it must ‘serve
important governmental objectives’ and be ‘substantially related to the achievement of those
objectives,’ – it was easier for Congress to show a pattern of state constitutional violations.” Ibid.
(internal citations omitted).
No. 04-4011               Touvell v. Ohio Dep’t of Mental Development                                             Page 5


        The Court then turned to the constitutionality of Congress’s chosen remedy for this pattern
of discrimination. Whereas we had held in Sims that the absence of evidence of discrimination
limited the permissible scope of the remedial provisions of the Act, the Hibbs Court held that
because Congress was confronting the “difficult and intractable problem” of gender discrimination,
and because previous legislative attempts to tackle this problem – such as Title VII of the Civil
Rights Act and the amendment of Title VII by the Pregnancy Discrimination Act, 42 U.S.C.
§ 2000e(k) – had failed, Congress was justified in employing broader prophylactic measures than
would otherwise be permissible. Hibbs, 538 U.S. at 737. Given this license to fill in the gaps, as
it were, of Title VII, the Court held that “Congress’ chosen remedy, the family-care leave provision
of the FMLA, is ‘congruent and proportional to the targeted violation.’” Ibid. (quoting Garrett, 531
U.S. at 374.
        In so holding, the Court rejected both of the rationales we gave in Sims for finding the Act’s
prophylactic provisions overly broad. First, the Court rejected the argument – advanced by the
Hibbs dissent – that the FMLA is an impermissible “substantive entitlement program” rather than
a remedial statute because it establishes a floor of 12 weeks of leave. Ibid. “Congress ‘is not
confined to the enactment of legislation that merely parrots the precise wording of the Fourteenth
Amendment,’” the Court stated, “but may prohibit ‘a somewhat broader swath of conduct, including
that which is not itself forbidden by the Amendment’s text.’” Ibid. (quoting Kimel, 528 U.S. at 81).
The Court likened the FMLA’s leave requirement to the literacy test ban and preclearance
requirements of the Voting Rights Act, and noted that a statute “that simply mandated gender
equality in the administration of leave benefits, would not have achieved Congress’ remedial object.
Such a law would allow States to provide for no family leave at all.” Id. at 737-38.
         Second, the Court noted that the Act was not overbroad, but was “narrowly targeted at the
fault line between work and family – precisely where sex-based overgeneralization has been and
remains strongest – and affects only one aspect of the employment relationship,” namely the
administration of leave benefits. Id. at 738. Furthermore, the demands the Act places on employers
are limited in various ways,1 which “tend to ensure Congress’ means are proportionate to ends
legitimate under § 5.” Ibid. (quoting Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav.
Bank, 527 U.S. 627, 647 (1999)).
                                                           IV
       The question before us is whether the Supreme Court’s holding in Hibbs that the family-care
provision of the FMLA abrogates state sovereign immunity requires the same holding in this case
with regard to the self-care provision of the Act. In Brockman v. Wyoming Department of Family
Services, 342 F.3d 1159 (10th Cir. 2003), cert. denied, 540 U.S. 1219 (2004), the only federal court
of appeals case to examine this question in any detail,2 the Tenth Circuit held that the self-care


         1
            For example, the FMLA requires only unpaid leave, 29 U.S.C. § 2612(a)(1), and applies only to employees
who have worked for an employer for at least one year and provided 1,250 hours of service within the last 12 months,
§ 2611(2)(A). Employees in high-ranking or sensitive positions are ineligible for FMLA leave; and, “of particular
importance to the States,” Hibbs, 538 U.S. at 739, the FMLA expressly excludes from coverage state elected officials,
their staffs, and appointed policymakers. 29 U.S.C. §§ 2611(2)(B)(i) & (3), 203(e)(2)(C). Employees must give advance
notice of foreseeable leave, § 2612(e), and employers may require certification by a health care provider of the need for
leave, § 2613. “In choosing 12 weeks as the appropriate leave floor, Congress chose a middle ground, a period long
enough to serve the needs of families but not so long that it would upset the legitimate interests of employers.” Hibbs,
538 U.S. at 739 (internal quotations omitted).
         2
            In Montgomery v. Maryland, 72 F. App’x 17 (4th Cir. 2003) (unpublished), the Fourth Circuit affirmed the
dismissal of an FMLA case for failure to state a claim, and stated in dicta that “[i]n [Hibbs], the Supreme Court held that
Congress effectively abrogated the states’ Eleventh Amendment immunity against causes of action based on the FMLA
. . . sovereign immunity does not protect the states in FMLA actions.” Id. at 19 (emphasis in original). A previous
No. 04-4011                Touvell v. Ohio Dep’t of Mental Development                                               Page 6


provision of the FMLA does not constitute a valid abrogation of state sovereign immunity. Id. at
1165. The Tenth Circuit noted that the Hibbs Court had focused exclusively on the gender
discrimination that motivated Congress’s enactment of the FMLA, and had premised its holding that
the family care provision of the Act abrogated state sovereign immunity “squarely on the heightened
level of scrutiny afforded gender discrimination.” Id. at 1164. Unlike the family-care provision,
the Brockman court found, the self-care provision was not motivated by a concern to eliminate
gender discrimination, but rather by a desire to alleviate the economic burdens to employees and
their families of illness-related job-loss, and to prevent discrimination against those with serious
health problems. Ibid. As a result, the Brockman court concluded that “[b]ecause the Supreme
Court’s analysis in Hibbs turned on the gender-based aspects of the FMLA’s § 2612(a)(1)(C), the
self-care provision in subsection (D) is not implicated by that decision.” Ibid. The Tenth Circuit
also agreed with the First Circuit, however, that even if the self-care provision were to be given the
benefit of the heightened standard of review for gender-based discrimination,”we do not find that
the legislative history sufficiently ties the FMLA’s personal medical leave provision to the
prevention of gender-based discrimination.” Ibid. (quoting Laro, 259 F.3d at 11). In fact, the
Brockman court held, “there is no showing . . . that establishes any nexus between gender-neutral
medical leave for one’s own health conditions and the prevention of discrimination on the basis of
gender on the part of states as employers.” Id. at 1165 (quoting Laro, 259 F.3d at 11).
       As explained below, we agree with the Tenth Circuit that the Supreme Court’s holding in
Hibbs does not apply to the self-care provision of the FMLA, and that private suits for damages may
not be brought against states for alleged violations of the Act arising from claimed entitlement to
leave under § 2612(a)(1)(D).




opinion issued in the same case indicates that Montgomery had taken leave under the self-care provision of the Act. See
Montgomery v. Maryland, 266 F.3d 334, 336 (4th Cir. 2001) (“Montgomery took extended leave under the Family
Medical Leave Act (FMLA) to have a scheduled surgical procedure.”). The Fourth Circuit gave no explanation for this
statement, however, and we do not consider it persuasive.
          In Toeller v. Wisconsin Department of Corrections, 296 F. Supp. 2d 946 (E.D. Wis. 2003), the United States
District Court for the Eastern District of Wisconsin held that, in light of Hibbs, the self-care provision of the FMLA was
a valid abrogation of state immunity. See id. at 950. The court reasoned that the self-care provision was intended to
combat discrimination against women because Congress was concerned that single parents, “who in most cases are
women,”might lose their jobs if unable to work due to serious illness. See id. at 949. The court did not point to any
evidence, however, for its apparent assumption that single mothers, or women in general, are more likely to suffer from
serious illness than men, or to lose their jobs if so indisposed. Cf. Brockman, 342 F.3d at 1164 (stating that the
legislative history of the FMLA does not identify any link between gender discrimination and discrimination against
those with serious illness). As discussed infra, it would be “inappropriate and incorrect” in light of Hibbs’s insistence
that Congress was required to – and did – adduce evidence of pervasive gender-discrimination by the states with regard
to family-leave, to justify the self-care provision of the Act solely on the basis of the possibility that such discrimination
might also impact self-care leave, without any concrete evidence of such a link. See Bryant v. Miss. State Univ., 329
F. Supp. 2d 818, 827 (N.D. Miss. 2004). In Bryant, the United States District Court for the Northern District of
Mississippi agreed with the analysis of § 2612(a)(l)(D) in Brockman, and held that “the self-care provision is not a
congruent or proportional remedy for gender discrimination.” See id. at 827.
          Finally, in Lizzi v. Washington Metropolitan Area Transit Authority, 862 A.2d 1017 (Md. 2004), cert. denied,
125 S. Ct. 2919 (2005), the Supreme Court of Maryland “agree[d] with . . . Brockman insofar as it relates to the effect
that the Supreme Court’s decision in Hibbs has on the personal-leave provision of the FMLA, i.e., that it does not have
any effect on that particular provision.”), and declined, on the basis of the res judicata effect of Lizzi v. Alexander, 255
F.3d 128 (4th Cir. 2001), to “select between the conflicting positions of the several federal courts” as to the self-care
provision. See id. at 1024-25.
No. 04-4011                Touvell v. Ohio Dep’t of Mental Development                                               Page 7


                                                             V
       We do not believe that Hibbs undermines the holdings of the First, Second, Fourth, Tenth,
and Eleventh Circuits that the self-care provision of the FMLA is unconstitutional insofar as it
purports to abrogate state sovereign immunity.3
        The holding in Hibbs was premised on two distinct conclusions about the family-care
provision of the FMLA, neither of which is warranted about the self-care provision of the Act. First,
the Court concluded that “the States’ record of unconstitutional participation in, and fostering of,
gender-based discrimination in the administration of leave benefits is weighty enough to justify the
enactment of prophylactic § 5 legislation.” Hibbs, 538 U.S. at 735. All of the evidence of
discrimination cited in Hibbs concerned discrimination based on the belief that women are more
likely than men to take leave to care for other family-members. See id. at 729 n.2 (“Congress found
that, ‘due to the nature of the roles of men and women in our society, the primary responsibility for
family caretaking often falls on women, and such responsibility affects the working lives of women
more than it affects the working lives of men.’”) (internal citation omitted); id. at 730-31 (citing
evidence of overt discrimination in the maternity and paternity leave benefits offered by both private
and public employers); id. at 732 (citing evidence that even facially neutral policies were applied
in a discriminatory way, namely “serious problems with the discretionary nature of family leave”);
id. at 736 (identifying the “impact of the discrimination targeted by the FMLA” as the “denial or
curtailment of women’s employment opportunities [due to] to the pervasive presumption that women
are mothers first, and workers second.”) (internal citation omitted). There is no evidence that the
states engaged in similar gender discrimination with regard to personal medical leave.
         Second, the Court concluded that, given the heightened scrutiny to which gender
discrimination is subject, the family-care leave provision of the FMLA is congruent and proportional
to the targeted violation, i.e. gender discrimination by the states regarding family-care leave. Id. at
737. Accordingly, the Court made clear in Hibbs that the remedy it found congruent and
proportional to that type of discrimination was “the family-care leave provision of the FMLA.”
Ibid.; see also ibid. (“By creating an across-the-board, routine employment benefit for all eligible
employees, Congress sought to ensure that family-care leave would no longer be stigmatized as an
inordinate drain on the workplace caused by female employees, and that employers could not evade
leave obligations simply by hiring men.”). There is no evidence that the self-care provision of the
Act would have any remedial or prophylactic effect on the discrimination identified by Congress.
        As an initial matter, it does not appear that Congress even intended to remedy gender-based
discrimination with the self-care provision of the FMLA. As both the Brockman and Laro courts
found, the legislative history of the FMLA suggests two motivations for the inclusion of the self-care
provision. One purpose of that provision was alleviating the economic burdens on employees and


         3
           Touvell argues that the FMLA should be treated as a whole, because by considering the self-care provision
separately, we would be engaged in “linedrawing of a quintessentially legislative character,” which would require that
we “either assume Congress acted from distinct motivations in each FMLA provision or disregard Congress’ overall
motivation in the absence of particularized findings for each provision,” an assumption that she describes as
“unrealistic,” and “an affront to the separation-of-powers doctrine.” As such, Touvell claims, the Supreme Court’s
holding in Hibbs that the family-care provision of the Act abrogates state immunity entails the same conclusion about
the self-care provision, and obviates the need for any further inquiry on our part into the constitutionality of the self-care
provision.
          The Supreme Court has made clear, however, that this type of line-drawing is a valid and necessary function
of the courts. See Tennessee v Lane, 541 U.S. 509, 520 (2004) (“the distinction [between valid and invalid legislation
under § 5] exists and must be observed . . . .”). In Lane, the Court held that the Eleventh Amendment bar to suit against
the states was successfully removed by Title II of the Americans with Disabilities Act (“ADA”). See id. at 533-34. In
Garrett, conversely, the Court had held that Title I of the ADA did not constitute a valid abrogation of the states’
Eleventh Amendment rights. See 531 U.S. at 374.
No. 04-4011           Touvell v. Ohio Dep’t of Mental Development                               Page 8


their families of illness-related job loss. See S. Rep. No. 103-3, at 11 (1993) (“The fundamental
rationale for [a personal medical leave] policy is that it is unfair for an employee to be terminated
when he or she is struck with a serious illness and is not capable of working. Job loss because of
illness has a particularly devastating effect on workers who support themselves and on families
where two incomes are necessary to make ends meet or where a single parent heads the
household.”); see also H.R. Rep. No. 101-28(I), at 23 (1989) (“The temporary medical leave
requirement is intended to provide basic, humane protection to the family unit when it is most in
need of help. It will also help reduce the societal cost born [sic] by government and private
charity.”). As noted in Laro, “[t]his concern clearly goes to Congress’s power under the Commerce
Clause and not Section 5.” 259 F.3d at 12.
         The other purpose of the self-care provision was to prevent employment discrimination
against those with serious health problems. See S. Rep. No. 103-3, at 12 (citing testimony that a
quarter of all cancer survivors face “some form of employment discrimination” and that “such
discrimination against qualified employees costs society millions of dollars in lost wages, lost
productivity and needless disabilities payments”); H.R. Rep. 101-28(I), at 23 (“[A] worker who has
lost a job due to a serious health condition often faces future discrimination in finding a job which
has even more devastating consequences for the worker and his or her family.”). While
discrimination against the disabled and seriously ill may indeed be devastating to those affected, the
Supreme Court made clear in Garrett that such discrimination does not provide sufficient basis for
a congressional abrogation of the states’ Eleventh Amendment immunity. See Garrett, 531 U.S. at
368-74. Congress identified no link between the desire to provide a safety net for the seriously ill,
or the desire to prevent discrimination against the seriously ill, and any pattern of discriminatory
stereotyping on the part of the states as employers.
        Whatever the actual intent of the self-care provision of the Act, Congress adduced no
evidence of a pattern of discrimination on the part of the states regarding leave for personal medical
reasons sufficient to permit the abrogation of state sovereign immunity. Such evidence of
discrimination must be “linked through some nexus not just to such gender-based problems in
society at large, but specifically to unconstitutional gender discrimination by states in their capacity
as employers.” Laro, 259 F.3d at 12; see also Garrett, 531 U.S. at 369, 371 (noting that although
Congress had identified substantial evidence of societal discrimination against the disabled, “the
great majority of these incidents do not deal with the activities of States,” and rejecting the argument
of the dissent that the Court could “infer from Congress’ general conclusions regarding societal
discrimination against the disabled that the States had likewise participated in such action”).
        Although Congress did cite sufficient evidence that the states had engaged in gender
discrimination on the basis of unwarranted stereotypes about the role of women as caregivers, that
evidence is not sufficient to justify the self-care provision of the Act, because there is virtually no
evidence that those stereotypes also concern the behavior of men and women regarding personal
medical leave. Indeed, the evidence suggests just the contrary. See H.R. Rep. No. 101-28(I), at 15
(“Recent studies . . . indicate that men and women are out on medical leave approximately equally.
Men workers experience an average of 4.9 days of work loss due to illness or injury per year, while
women workers experience 5.1 days per year. The evidence also suggests that the incidence of
serious medical conditions that would be covered by medical leave under the bill is virtually the
same for men and women. Employers will find that women and men will take medical leave with
equal frequency.”); see also Laro, 259 F.3d at 11-12 (“The argument that [the self-care] provision
validly abrogates New Hampshire’s Eleventh Amendment immunity founders on this lack of
congruence between the personal medical leave provision at issue here and the prevention of
gender-based discrimination by states as employers, because Congress has not found the states to
have engaged in the specific gender-based discriminatory practices this provision was designed to
prevent.”); Bryant v. Miss. State Univ., 329 F. Supp. 2d 818, 827 (N.D. Miss. 2004) (“There is no
indication that women require more actual personal medical leave than men. Nor is there any
No. 04-4011           Touvell v. Ohio Dep’t of Mental Development                              Page 9


evidence that women have suffered disparate treatment due to a false perception that they require
more personal medical leave than men. . . . [T]here is simply no evidence to this Court’s knowledge
that women and men have been subjected to different standards for personal medical leave. “). But
see 1987 Senate Labor Hearings, pt. 2, at 170 (testimony of Peggy Montes, Mayor’s Commission
on Women’s Affairs, City of Chicago) (“the lack of uniform parental and medical leave policies in
the work place has created an environment where discrimination is rampant.”) (emphasis added).
Touvell even concedes this very point. See Appellant’s Br. at 29 (“Statistics on the incidence of loss
of work due to medical reasons, including pregnancy-related medical reasons, show that men and
women are out on medical leave approximately equally[.]”) (citing National Center for Health
Statistics, Disability Days, United States, 1980 (Series 10, No. 143, DHH8 Pub. No. (PHS) 83-1571)
(1983)).
         Touvell contends that personal medical leave is impacted by gender-based discrimination
because of the gender-specific incidence of pregnancy-related illness and disability. She points to
references to pregnancy-related conditions in the FMLA’s legislative history, see S. Rep. No. 103-3,
at 29 (including as examples of serious medical conditions such as ongoing pregnancy, miscarriages,
complications or illness related to pregnancy, including severe morning sickness, the need for
prenatal care, and recovery from childbirth), as well as in the text of the Act, see 29 U.S.C.
§ 260l(b)(4) (among the purposes of the FMLA is “minimiz[ing] 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.”).
        The fact that the health conditions for which leave would be available under the Act include
pregnancy-related illness does not mean, however, that pregnancy-related conditions were a more
significant focus of the Act than any other conditions that would cause men and women to take
leave. The legislative history of the Act suggests that Congress had many such conditions in mind.
For example, the same Senate Report that lists various pregnancy-related conditions as examples
of medical conditions that would be covered under the self-care provision also lists thirteen other
types of condition, including heart conditions, strokes, “most cancers,” and accidents on or off the
job. See S. Rep. No. 103-3, at 29; see also, e.g., id. at 12-13 (citing testimony that a quarter of all
cancer survivors face “some form of employment discrimination”). Nor does it mean that Congress
had evidence that the states in particular were discriminating against women in allocating personal
leave. Absent such evidence, Congress may not abrogate state immunity from suit. See Hibbs, 538
U.S. at 729; see also Laro, 259 F.3d at 13 (considering argument that the self-care provision
combats discrimination on the basis of pregnancy, and stating that “there is no indication that
Congress found such a problem on the part of states as employers”); id. at 15-16 (the Eleventh
Amendment requires greater information from Congress as to whether [the risk of states
discriminating as employers on the basis of pregnancy-related-conditions] is real.”).
       In the absence of any evidence of discrimination relating to personal medical leave, the self-
care provision of the FMLA cannot be justified as a remedy for that type of discrimination. The
only way it could be justified, then, is if the self-care provision were a prophylactic measure
necessary to effectuate the broader anti-discriminatory purposes of the FMLA as a whole. The best
argument along those lines is that § 2612(a)(1)(D) meets a perceived need not addressed by Title
VII and the Pregnancy Discrimination Act (“PDA”).
        Under the PDA, women may no longer be treated differently in employment because of
pregnancy, childbirth, or related medical conditions (or stereotypes about the same). Laro, 259 F.3d
at 14. Furthermore, if an employer chooses to offer benefit programs, then those programs must
cover pregnancy, childbirth, and related medical conditions. Medical insurance and leave policies,
if offered to employees, have to cover pregnancy. Ibid. In other words, the PDA mandates
equivalent treatment of all temporarily disabled workers, including those disabled because of
No. 04-4011           Touvell v. Ohio Dep’t of Mental Development                            Page 10


pregnancy-related conditions. However, as the First Circuit noted in Laro, the PDA did not meet
one arguable social need, because it did not require the provision of pregnancy-related leave by
employers who offer no benefit provisions for leave at all. See 259 F.3d at 14-15. As such, the
argument goes, the self-care provision of the FMLA was needed to ensure that all employers provide
leave for medical conditions related to pregnancy. Congress could have simply required leave for
pregnancy-related conditions only, but, the argument continues, that would create a disincentive to
hire women, or to place them in positions of responsibility, because only women would take
advantage of such leave, thereby feeding into the stereotype that “[u]ntil a woman passes the child-
bearing age, she is viewed by employers as potentially pregnant.” H.R. Rep. No. 95-948, at 6-7
(1978). Therefore, the only way to ensure that women are able to take leave for pregnancy-related
conditions without fear of discrimination is to require employers to allow all employees to take leave
for health reasons. See S. Rep. No. 102-68, at 35 (1991) (“Because the bill treats all employees who
are temporarily unable to work due to serious health conditions in the same fashion, it does not
create the risk of discrimination against pregnant women posed by legislation which provides job
protection only for pregnancy related disability.”).
        There are several problems with this argument. The first problem is that, as noted above,
there is no evidence that Congress was any more concerned when enacting the FMLA with
providing leave benefits to pregnant women than with providing benefits for other seriously ill men
and women. The second problem is that even if it was true that the self-care provision of the Act
was necessary in order to ensure that women can take time off for pregnancy-related conditions
without creating an incentive to hire and promote men, there is no evidence that such a goal,
however worthy it may be, is designed to combat a pattern of discrimination by state employers.
See Laro, 259 F.3d at 14-15, 16 (notwithstanding general statement in testimony asserting that
public sector leave policies do not vary much from private sector policies, “the only direct evidence
regarding the actual leave policies of public sector employees in the legislative record suggests that
state employers did not fall into the ‘gap’ left by the PDA.”); id. at 13-14 (“There is no showing,
however, that establishes any nexus between gender-neutral medical leave for one’s own health
conditions and the prevention of discrimination on the basis of gender on the part of states as
employers.”). Although Hibbs discusses at length state policies regarding leave taken after the birth
of a child, the point of that discussion was not that providing maternity leave for new mothers was
a valid goal on the part of Congress in enacting the FMLA, but that equalizing such provisions for
men and women was a legitimate goal.
         The third problem is that even if the provision of leave for pregnancy-related conditions was
designed to remedy or prevent discrimination by public employers, there is no reason to believe that
the self-care provision of the FMLA would in fact remove any disincentive to hire women that might
otherwise result from a pregnancy-specific provision. In Hibbs, the Supreme Court explained that
there was concrete evidence that Title VII was not having the desired effect with regard to ending
discrimination in the allocation of family-care leave, and that the reason for this failure was the
pervasiveness of stereotypes about the role of women as caregivers. See Hibbs, 538 U.S. at 737.
The Court also explained exactly how the family-care provision of the Act would solve this problem.
By enabling fathers to take leave to care for a newborn or other family-member, the Act would
decrease the gap between the incidence of such leave taken by men and women, and thereby reduce
the incentive to hire men over women for fear that women would take more time off to care for
family-members. See ibid. (“By setting a minimum standard of family leave for all eligible
employees, irrespective of gender, the FMLA attacks the formerly state-sanctioned stereotype that
only women are responsible for family caregiving, thereby reducing employers’ incentives to engage
in discrimination by basing hiring and promotion decisions on stereotypes.”).
        With regard to self-care leave, however, there is no evidence that women – either in fact or
in stereotype – took more such leave prior to the enactment of the FMLA. Thus, there is no
evidence that personal medical leave had ever created a disincentive to hire women. What is more,
No. 04-4011           Touvell v. Ohio Dep’t of Mental Development                           Page 11


if such beliefs and the consequent disincentives had existed pre-FMLA, the self-care provision of
the Act would only make things worse. If employers believe that women were more likely to take
personal leave than men, a law mandating the provision of such leave to all employees would create
precisely the type of incentives to hire and promote men that the family-care provision of the Act
was designed to prevent.
        In conclusion, while Hibbs found that Congress had adduced sufficient concrete evidence
of discrimination by the states regarding the availability and consequences of family-care leave,
there is no equivalent evidence that the self-care provision of the FMLA was intended to, or did,
target similar discrimination. On the contrary, the self-care provision appears to have been social
legislation designed to protect the seriously ill and their families regardless of gender. While this
may be an admirable goal, it is not one that permits Congress to abrogate the Eleventh Amendment
immunity of the states from private suit for damages.
                                                 VI
       For the reasons discussed above, we AFFIRM the judgment of the district court.
