                                                             [PUBLISH]

           IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT            FILED
                                                 U.S. COURT OF APPEALS
                      ________________________     ELEVENTH CIRCUIT
                                                        10/26/99
                                                     THOMAS K. KAHN
                              No. 98-6069                CLERK
                      ________________________
                    D. C. Docket No. CV-97-AR-92-S

PATRICIA GARRETT,

                                                      Plaintiff-Appellant,

                                versus

THE UNIVERSITY OF ALABAMA
AT BIRMINGHAM BOARD OF TRUSTEES,

                                                     Defendant-Appellee.

THE UNITED STATES OF AMERICA,

                                                              Intervenor.

                      ________________________

                           No. 98-6070
                   ________________________
                D. C. Docket No. CV-97-AR-2179-S

MILTON ASH,
                                                      Plaintiff-Appellant,

                                versus

ALABAMA DEPARTMENT OF YOUTH SERVICES,
                                                                        Defendant-Appellee.

THE UNITED STATES OF AMERICA,
                                                                                   Intervenor.


                              ________________________

                     Appeals from the United States District Court
                        for the Northern District of Alabama
                           _________________________

                                    (October 26, 1999)

Before ANDERSON, Chief Judge, RONEY, Senior Circuit Judge, and COOK*,
      Senior District Judge.

RONEY, Senior Circuit Judge:

       These two consolidated cases appeal the grant of summary judgments to two

defendant Alabama state agencies on the ground of sovereign immunity. They raise

the question that is being litigated in various jurisdictions of whether a state is immune

from suits by state employees asserting rights under certain federal laws. The three

statutes here are: the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101-

12213; Section 504 of the Rehabilitation Act of 1973 (Rehabilitation Act), 29 U.S.C.

§ 794; and the Family Medical Leave Act of 1993 (FMLA), 29 U.S.C. §§ 2601-2654.

Following recent precedent in this Circuit, we hold that the state is not immune from

_____________________
      *
         Honorable Julian Abele Cook, Jr., Senior U. S. District Judge for the Eastern District
         of Michigan, sitting by designation.

                                               2
suit under the ADA and the Rehabilitation Act and reverse the judgments of the

district court against plaintiffs Patricia Garrett and Milton Ash as to those two statutes

and remand the two cases for further proceedings. As to the FMLA, we hold that,

although it might well not be immune from suit under certain other provisions of the

Act, a decision we need not make, the state is immune from suit under the specific

provisions at issue here. We therefore affirm the district court as to the summary

judgment on that cause of action against plaintiff Patricia Garrett, the only plaintiff

to make a claim under the FMLA.

       Although generally called Eleventh Amendment immunity, which amendment

simply bars a federal court from hearing claims against a state by a citizen of another

state,1 it has long been recognized that each state is a sovereign entity in our federal

system and is not amenable to suit by an individual without its consent. See Seminole

Tribe of Florida v. Florida, 517 U.S. 44,54 (1996) and Hans v. Louisiana, 134 U.S.

1 (1890).

       Under certain circumstances, however, the United States Congress can pass

laws which give individual citizens a right of action in federal court against an

unconsenting state.        Those circumstances require first,             that “Congress has

       1
        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 of Subjects of any Foreign State.
U.S. Const. amend. XI.

                                                3
‘unequivocally expresse[d] its intent to abrogate the immunity,’” which “must be

obvious from ‘a clear legislative statement,’” and second, that Congress has acted

“pursuant to a valid exercise of power.” Seminole Tribe of Florida v. Florida, 517

U.S. at 55.

      So far, the Supreme Court has held that Congress can abrogate state immunity

only when it acts pursuant to section 5, the enforcement provision of the Fourteenth

Amendment to the Constitution, which provides that “[t]he Congress shall have power

to enforce, by appropriate legislation, the provisions of this article.” U.S. Const.

amend. XIV, § 5. The Court has held that Congress does not have authority to

abrogate state sovereign immunity when it acted only pursuant to the Commerce

Clause. See Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996).

      This frames the issue in this field of developing law: were these three statutes

passed with the unequivocal and clear intent to give individuals a right of action

against a state, and do these statutes reflect a valid exercise of congressional power

under the Fourteenth Amendment.

      The Supreme Court has laid out a few guidelines in recent cases. In City of

Boerne v. Flores, 521 U.S. 507 (1997), the Court struck down the Religious Freedom

Restoration Act of 1993(RFRA), 42 U.S.C. § 2000bb-1(1994), an act that Congress

purportedly passed pursuant to its Fourteenth Amendment enforcement powers, and


                                          4
in direct response to the Supreme Court’s decision in Employment Div., Dept. of

Human Resources of Oregon v. Smith, 494 U.S. 872(1990). In Smith, the Court had

held that the Free Exercise Clause of the First Amendment does not require states to

justify by a compelling interest generally applicable, neutral laws that coincidentally

burden religious practices. See Smith, 494 U.S. at 885-887. In direct response to

Smith, Congress passed RFRA, which required all laws that burden a group’s religion,

even neutral laws of general applicability, to be narrowly tailored and justified by a

compelling interest. See 42 U.S.C. § 2000bb-1. In striking down RFRA, the Supreme

Court warned that section 5 of the Fourteenth Amendment grants Congress power to

enforce the Fourteenth Amendment, not to define the substance of the amendment, so

that Congress’ power is remedial in nature. See Boerne, 521 U.S. at 519. To qualify

as remedial, “[t]here must be a congruence and proportionality between the injury to

be prevented or remedied and the means adopted to that end.” 521 U.S. at 520.

       In Florida Prepaid Postsecondary Educ. Expense Bd. v. College Savings Bank,

_ U.S. _, 119 S.Ct. 2199(1999), a patentee brought an action against a state agency

alleging infringement of a patented apparatus and method for administering college

investment programs. The Court held that the Patent and Plant Variety Protection

Remedy Clarification Act could not be sustained under the City of Boerne analysis as

legislation enacted to enforce any guarantee of the Fourteenth Amendment. See


                                          5
College Savings Bank,_ U.S. at _, 119 S.Ct. at 2202. In looking at whether the

Patent Remedy Act was remedial or preventive legislation, the Court stated, “we must

first identify the Fourteenth Amendment ‘evil’ or ‘wrong’ that Congress intended to

remedy, guided by the principle that the propriety of § 5 legislation ‘must be judged

with reference to the historical experience . . . it reflects.’” College Savings Bank, _

U.S. at _, 119 S.Ct. at 2207, citing City of Boerne, 521 U.S. at 525. The Court then

looked to the legislative history to see if there was evidence of a pattern of

constitutional violations perpetrated by the states, such as there were in the voting

rights cases, and found none. The Court noted that Congress barely considered the

availability and constitutional adequacy of state law remedies. The Court noted that

while the “lack of support in the legislative record is not determinative . . . identifying

the targeted constitutional wrong or evil is still a critical part of our §5 calculus. . . .

” _ U.S. at _, 119 S.Ct. at 2209. The Court said that the record offered only “scant

support for Congress’ conclusion that states were depriving patent owners of property

without due process of law by pleading sovereign immunity in federal court patent

actions. _ U.S. at _, 119 S.Ct. at 2209.

       With these guidelines in mind, we consider each of the acts at issue in this case.




                                             6
      I. The ADA

      Congress having unequivocally expressed its intent for the ADA to abrogate

sovereign immunity, 42 U.S.C. § 12202 (1994) ("A State shall not be immune under

the eleventh amendment to the Constitution of the United States from an action in

Federal or State court of competent jurisdiction for a violation of [the ADA]."), this

Court in Kimel v. State Bd. of Regents 139 F.3d 1426, 1433 (11th Cir.1998), cert.

granted, _U.S. _, 119 S.Ct. 901(Jan. 25, 1999) has already held that the ADA is a

valid exercise of the Enforcement Clause of the Fourteenth Amendment and that the

states do not have sovereign immunity from claims brought under the ADA. We note

that Kimel reversed a district court decision and was decided by our Court after the

district court had made its determination in this case. We, of course, are bound by

the decision of the Court in Kimel. See United States v. Woodard, 938 F.2d 1255,

1258 (11th Cir.1991), cert. denied, 501 U.S. 1109(1992). We note also that certiorari

has been granted in Kimel and any resulting decision of the Supreme Court will

probably catch up with this case before a final determination of the merits of the

plaintiffs’ claims.

      We, therefore, reverse the summary judgment entered for the University of

Alabama at Birmingham Board of Trustees and against Patricia Garrett on her ADA

claim in Appeal No. 98-6090 (D.C. Docket No CV-97-AR-92-S), and the summary


                                          7
judgment for the Alabama Department of Youth Services and against Milton Ash on

his ADA claim in Appeal No. 98-6070 (D.C.Docket No. CV-97-AR-2179-S), and

remand for further proceedings.

      II.    The Rehabilitation Act

      In our judgment, the decision under the Rehabilitation Act is also controlled

by this court’s decision as to the ADA in Kimel. The language of the Rehabilitation

Act as to congressional intent to abrogate a states’ immunity from suit in federal court

is as clear as it was under the ADA. See 42 U.S.C. § 2000d-7(a)(1) (1994) ("A State

shall not be immune under the Eleventh Amendment of the Constitution of the United

States from suit in Federal court for a violation of Section 504 of the Rehabilitation

Act of 1973 ...."). The statutes serve the same purpose and were born of the same

history of discrimination:

             The Supreme Court has previously held that the disabled are
      protected against discrimination by the Equal Protection Clause. See
      City of Cleburne, 473 U.S. at 450, 105 S. Ct. at 3259-60. Here, the
      purpose of both the ADA and section 504 of the Rehabilitation Act is to
      prohibit discrimination against the disabled. See 42 U.S.C. §
      12101(b)(ADA); 29 U.S.C. 701(b)(1)(F)(Rehabilitation Act). In both
      acts, Congress explicitly found that persons with disabilities have
      suffered discrimination. See 42 U.S.C. 12101(a)(ADA);29 U.S.C. § 701
      (a)(5)(Rehabilitation Act). Both the ADA and the Rehabilitation Act
      therefore are within the scope of appropriate legislation under the Equal
      Protection Clause as defined by the Supreme Court.




                                           8
Clark v. State of California, 123 F.3d 1267,1270 (9th Cir. 1997), cert. denied, _U.S.

_, 118 S.Ct. 2340(1998).

      We, therefore, reverse the summary judgment entered for the University of

Alabama at Birmingham Board of Trustees and against Patricia Garrett on her

Rehabilitation Act claim in Appeal No. 98-6090 (D.C. Docket No CV-97-AR-92-S),

and the summary judgment for the Alabama Department of Youth Services and

against Milton Ash on his Rehabilitation Act claim in Appeal No. 98-6070

(D.C.Docket No. CV-97-AR-2179-S), and remand for further proceedings.

      III.   FMLA

      Patricia Garrett is the only plaintiff in this consolidated appeal who asserts a

claim under the FMLA. Although the FMLA may be most commonly known for its

provisions affording employees leave for the birth or adoption of a child or to care for

a child, spouse or parent with a serious health condition, the provision at issue here

deals with leave for the employee due to her own serious health condition. See 29

U.S.C. § 2612(a)(1)(D)(“[A]n eligible employee shall be entitled to a total of 12

workweeks of leave during any 12-month period . . . [b]ecause of a serious health

condition that makes the employee unable to perform the functions of the position of

such employee.”)




                                           9
       Plaintiff Patricia Garrett had worked for the University of Alabama since 1977

and had received several promotions, including one as recently as June 1992, when

she was promoted to Director of OB/GYN/Neonatal Services. In August 1994,

Garrett was diagnosed with breast cancer and underwent a lumpectomy and continued

radiation and chemotherapy treatment through January 1995. Garrett alleges the

University of Alabama repeatedly threatened to transfer her to a less demanding job

due to her condition. In March 1995, after being told that a subordinate was going to

replace her and that she would be sent to a satellite location, Garrett took family

medical leave, upon doctor’s orders. When she returned, the University demoted her

to a position with a significantly lower salary.

      Garrett alleges that the University of Alabama violated the FMLA by failing to

offer her the same or an equivalent position upon her return, and that the university’s

actions constitute retaliation under that statute. She seeks damages and equitable

relief. The merits of that claim are, of course, not before this Court.

      The expression of congressional intent in the FMLA is less clear than in the

ADA and the Rehabilitation Act. Plaintiffs rely upon the fact that the FMLA defines

an employer to include a state or state entity, see 29 U.S.C. § 2611(3), 203(e)(2)(c),

and the statute’s enforcement provision, which provides that “any employer” who

violates the FMLA shall be liable for a variety of penalties including “wages, salary,


                                          10
employment benefits . . . liquidated damages ... and for such equitable relief as may

be appropriate....” 29 U.S.C. § 2617. Judge Edmondson rejected a virtually identical

argument with regard to the ADEA. See Kimel, 139 F.3d at 1431-32.               Accord

Humenansky v. Regents of the Univ. of Minnesota, 152 F.3d 822 (8th Cir.1998),

pet.for cert. filed, 67 U.S.L.W. 3504 (Feb. 1, 1999). But see Cooper v. New York

State Office of Mental Health, 162 F.3d 770 (2d Cir. 1998), pet. for cert. filed, 67

U.S.L.W. 3614(Mar. 23,1999) ; Scott v. Univ. of Mississippi, 148 F.3d 493 (5th Cir.

1998); Coger v. Board of Regents, 154 F.3d 296 (6th Cir. 1998), pet. for cert. filed,

67 U.S.L.W. 3364 (Nov. 16,1998); Goshtasby v. Board of Trustees, 141 F.3d 761 (7th

Cir. 1998); Keeton v. Univ. of Nevada Sys., 150 F.3d 1055 (9th Cir. 1998); Migneault

v. Peck, 158 F.3d 1131 (10th Cir. 1998), pet. for cert. filed, 67 U.S.L.W. 3496

(Jan.20,1999).

       Without deciding this issue, which the Supreme Court will probably resolve

in consideration of its grant of certiorari in Kimel, we hold in this case that Congress

did not have the authority to abrogate the sovereign immunity of the states on claims

arising under the provision at issue here. Thus we affirm the district court under the

second prong of the test set forth in Seminole Tribe of Florida, 517 U.S. at 54 (1996).

      In discussing Congress’ enforcement power, the Supreme Court emphasized

that its power is “remedial.” City of Boerne, 521 U.S. at 519. Congress acts within its


                                          11
authority under the Fourteenth Amendment if the court can perceive a basis upon

which Congress might predicate a judgment that the state action "constituted an

invidious discrimination in violation of the Equal Protection Clause." Katzenbach,

384 U.S. at 656. In other words, “we must first identify the Fourteenth Amendment

‘evil’ or ‘wrong’ that Congress intended to remedy, guided by the principle that the

propriety of any § 5 legislation ‘must be judged with reference to the historical

experience . . . it reflects.’” College Savings Bank, _U.S. at _, 119 S.Ct. at 2207,

citing City of Boerne, 521 U.S. at 525.

      Although the statute invokes the Equal Protection Clause in its purpose section,

it is not in relation to the provision allowing leave to an employee with a serious

health condition.

      The statute states as its first two purposes:

      (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.
29 U.S.C. § 2601(b)(1),(2).

      The statute seeks to accomplish these purposes

      (4) . . . 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

                                          12
      available for eligible medical reasons(including maternity-related
      disability) and for compelling family reasons, on a gender-neutral basis;
      and

      (5) to promote the goal of equal employment opportunity for women
      and men, pursuant to such clause.
29 U.S.C. § 2601(b)(4),(5).

       In reviewing the legislative history, we found only scant references to this

provision. Serious health conditions are not necessarily related to family and gender

discrimination. Plaintiffs pointed us to passages of the Senate Report, which

contained the story of a cancer patient who, despite her good work history was fired

after developing colon cancer; and to the more extensive testimony of the vice

president of the National Coalition for Cancer Survivorship, who testified with regard

to the type and underlying causes of discrimination suffered by cancer survivors. She

also testified that “25 percent of all cancer survivors, over one million Americans,

experience some form of employment discrimination solely because of their cancer

history.” This type of anecdotal legislative history is insufficient to indicate Congress

had identified particular unconstitutional actions by the states involving serious health

conditions irrespective of gender or family situations.

      Plaintiffs contend that one of the FMLA’s principal purposes is to prevent

gender discrimination and to protect women from employment discrimination due to

issues regarding pregnancy, child care, and caretaking of family members. Assuming


                                           13
this is so, plaintiffs have failed to make even a faint connection between this purpose

and the particular section of the statute under review.

      AFFIRMED IN PART, REVERSED IN PART AND REMANDED.




                                          14
COOK, Senior District Judge, concurring in part and dissenting in part:

                                                I.

         I concur with my brethren that the decision below with respect to the Americans

With Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213, and Section 504 of the

Rehabilitation Act of 1973 (Rehabilitation Act), 29 U.S.C. § 794, must be reversed

because this circuit’s prior decision in Kimel v. State of Florida Board of Regents, 139

F.3d 1426 (11th Cir. 1998), is controlling.1



                                               II.

         However, I respectfully dissent from the holding that the States’ Eleventh

Amendment immunity was not validly abrogated by the provisions of the Family

Medical Leave Act of 1993 (FMLA), 29 U.S.C. §§ 2601-2654, which are at issue in

the case brought by the Appellant, Patricia Garrett, against the Appellee, the Board of

Trustees for the University of Alabama in Birmingham (UAB).



                                               A.




         1
          See also Seaborn v. State of Florida Dep’t Corrections, 143 F.3d 1405, 1407 (11th Cir.
1998).

                                               15
         The outcome of this appeal is governed by the analytical framework that the

Supreme Court has established with regard to the Eleventh Amendment grant of

immunity to the states from federal court litigation, and the abrogation thereof

pursuant to Section Five of the Fourteenth Amendment. The Eleventh Amendment

reads:

         [t]he Judicial power of the United States shall not be construed to extend
         to any suit in law or equity, commenced or prosecuted against one of the
         United States by Citizens of another State, or by Citizens or Subjects of
         any Foreign State.

“While the Amendment by its terms does not bar suits against a State by its own

citizens, this Court has consistently held that an unconsenting State is immune from

suits brought in federal courts by her own citizens as well as by citizens of another

State.” Edelman v. Jordan, 415 U.S. 651, 662-63 (1974). The Eleventh Amendment

also immunizes state agents and state instrumentalities. Regents of Univ. of Cal. v.

Doe, 519 U.S. 425, 429 (1997). However, the Eleventh Amendment does not prohibit

federal courts from entertaining private actions against state officers for injunctive

relief. See Ex Parte Young, 209 U.S. 123 (1908).

         The Supreme Court considered the scope of the states’ Eleventh Amendment

immunity in Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996). In the course

of that decision, the Court validated a two-part test to determine “whether Congress

has abrogated the States’ sovereign immunity . . . first, whether Congress has

                                            16
‘unequivocally expresse[d] its intent to abrogate the immunity,’ and second, whether

Congress has acted ‘pursuant to a valid exercise of power.’ “ Id. at 55 (citation

omitted) (quoting Green v. Mansour, 474 U.S. 64, 68 (1985)). Although the Court

overruled Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989), by holding that the

Interstate Commerce Clause, U.S. Const. Art. I, § 8, cl. 3, did not empower Congress

to unilaterally abrogate the Eleventh Amendment’s grant of state immunity, it

recognized that Section Five of the Fourteenth Amendment was a valid means of

doing so. Seminole Tribe, 517 U.S. at 59-66. Section Five of the Fourteenth

Amendment provides that “[t]he Congress shall have power to enforce, by appropriate

legislation, the provisions of this article,” U.S. Const. amend. XIV, § 5, which

includes the guarantee that “[n]o State shall make or enforce any law which shall . .

. deny to any person within its jurisdiction the equal protection of the laws,” U.S.

Const. amend. XIV, § 1.

      The Supreme Court has provided guidance concerning the circumstances in

which Congress may validly invoke the Fourteenth Amendment’s Equal Protection

Clause to abrogate the immunity granted to states by the Eleventh Amendment. The

test is whether the statute (1) may be regarded as an enactment to enforce the Equal

Protection Clause, (2) is plainly adapted to that end, and (3) is not prohibited by, but




                                          17
is consistent with, the letter and spirit of the Constitution. Katzenbach v. Morgan, 384

U.S. 641, 651 (1966).

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

added constraints to this test by emphasizing that the power granted to Congress by

Section Five of the Fourteenth Amendment was (1) an enforcement or remedial

authority, as opposed to a license to substantively define the Fourteenth Amendment’s

protections, and (2) limited by a requirement of congruence or proportionality

between the relevant legislation and the injury sought to be remedied or prevented.

Although the Supreme Court did not so specify, it appears that these considerations

apply to the second and third Morgan factors.

      Flores presented the issue of whether the Religious Freedom Restoration Act

of 1993 (RFRA) was validly promulgated under Congress’ Fourteenth Amendment

power to enforce the Free Exercise Clause. Through the RFRA, Congress had

invoked its power under Section Five of the Fourteenth Amendment in an effort to

counteract the Supreme Court’s decision in Employment Division, Department of

Human Resources of Oregon v. Smith, 494 U.S. 872 (1990), which held that neutral,

generally applicable laws may be applied to inhibit religious practices even when not

supported by a compelling governmental interest. Flores, 521 U.S. at 512-14.

Reviewing Fourteenth Amendment jurisprudence, the Supreme Court emphasized that


                                          18
Congress is granted an enforcement, or remedial, power under the Fourteenth

Amendment, but that:

      [t]he design of the Amendment and the text of § 5 are inconsistent with
      the suggestion that Congress has the power to decree the substance of the
      Fourteenth Amendment’s restrictions on the States. Legislation which
      alters the meaning of the Free Exercise Clause cannot be said to be
      enforcing the Clause. Congress does not enforce a constitutional right
      by changing what the right is. It has been given the power “to enforce,”
      not the power to determine what constitutes a constitutional violation.

Flores, 521 U.S. at 519. The Court found that (1) “[t]he remedial and preventive

nature of Congress’ enforcement power, and the limitation inherent in the power, were

confirmed in our earliest cases on the Fourteenth Amendment,” and further (2) “[a]ny

suggestion that Congress has a substantive, non-remedial power under the Fourteenth

Amendment is not supported by our case law.” Id. at 524, 527. The limits to

Congress’ Fourteenth Amendment powers are necessary because:

      [i]f Congress could define its own powers by altering the Fourteenth
      Amendment’s meaning, no longer would the Constitution be “superior
      paramount law, unchangeable by ordinary means.” It would be “on a
      level with ordinary legislative acts, and, like other acts, . . . alterable
      when the legislature shall please to alter it.” Under this approach, it is
      difficult to conceive of a principle that would limit congressional power.
      Shifting legislative majorities could change the Constitution and
      effectively circumvent the difficult and detailed amendment process
      contained in Article V.

Id. at 529 (citation omitted) (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177

(1803)).


                                          19
      The Supreme Court recognized that, as with many constitutional doctrines,

application of these abstract principles to specific facts can be difficult.

      While the line between measures that remedy or prevent unconstitutional
      actions and measures that make a substantive change in the governing
      law is not easy to discern, and Congress must have wide latitude in
      determining where it lies, the distinction exists and must be observed.

Flores, 521 U.S. at 519-20. The Flores majority emphasized the necessity, when

making these distinctions, of assuring a “congruence and proportionality between the

injury to be prevented or remedied and the means adopted to that end” because

“[l]acking such a connection, legislation may become [impermissibly] substantive in

operation and effect.” Id. at 520. This theme of proportionality between the statutory

means and the ends to be achieved was repeated throughout the opinion, see id. at 530,

533, and was indeed the determinative factor in the Court’s analysis of the RFRA, see

id. at 532. Thus, the Court held that Congress exceeded its enforcement or remedial

powers under the Fourteenth Amendment when it enacted the RFRA because

      RFRA cannot be considered remedial, preventive legislation, if those
      terms are to have any meaning. RFRA is so out of proportion to a
      supposed remedial or preventive object that it cannot be understood as
      responsive to, or designed to prevent, unconstitutional behavior. It
      appears, instead, to attempt a substantive change in constitutional
      protections. . . .
            . . . Sweeping coverage ensures its intrusion at every level of
      government, displacing laws and prohibiting official actions of almost
      every description and regardless of subject matter. RFRA’s restrictions
      apply to every agency and official of the Federal, State, and local
      Governments. RFRA applies to all federal and state law, statutory or

                                           20
      otherwise, whether adopted before or after its enactment. RFRA has no
      termination date or termination mechanism. Any law is subject to
      challenge at any time by any individual who alleges a substantial burden
      on his or her free exercise of religion.
                                          ....
             The substantial costs RFRA exacts, both in practical terms of
      imposing a heavy litigation burden on the States and in terms of
      curtailing their traditional general regulatory power, far exceed any
      pattern or practice of unconstitutional conduct under the Free Exercise
      Clause . . . . Simply put, RFRA is not designed to identify and counteract
      state laws likely to be unconstitutional because of their treatment of
      religion.

Id. at 532, 534. In sum, because of the necessity for proportionality between the

injury and the statutory remedy, the Supreme Court concluded that there had been an

insufficient showing that religious bias was a pervasive enough problem to warrant

the sweeping applicability of the RFRA. See id. at 530-32.



                                         B.

      The FMLA sets national minimum standards for family and medical leave in

employment. In specified situations, such as when oneself or a family member

requires care due to a serious health problem or pregnancy-related issue, the FMLA

requires covered employers to provide twelve weeks of unpaid leave per year. See 29

U.S.C. § 2612(a). Employers must place an employee returning from such leave into

the position that had been held when the leave commenced, or to an equivalent

position. 29 U.S.C. § 2614(a). Inhibiting covered employees from exercising their

                                         21
FMLA rights, or retaliating against them for doing so, is prohibited. See 29 U.S.C.

§ 2615(a).

       In the present appeal, the District Court ruled that Congress lacked authority

under the Fourteenth Amendment to make the States subject to a private damages suit

in federal court for asserted FMLA violations.2 Garrett, 989 F. Supp. at 1412.

Although it acknowledged that the FMLA had an explicit goal of assuring equal

protection, the court below simply considered those statutory declarations “self-

serving” and “insufficient to accomplish [the FMLA’s] purpose.” Garrett, 989 F.

Supp. at 1412. In my opinion this holding was erroneous because Congress validly

abrogated the States’ Eleventh Amendment immunity when it passed the FMLA.



                                              (1)

       I would answer the first Seminole Tribe inquiry, which asks whether Congress

unequivocally expressed its intent to abrogate the immunity granted to the states by

the Eleventh Amendment, Seminole Tribe, 517 U.S. at 55, in the affirmative. This

intent “must be obvious from ‘a clear legislative statement,’ “ id. (quoting Blatchford

v. Native Village of Noatak, 501 U.S. 775, 786 (1991)), and “ ‘unmistakably clear in

       2
        Three other district courts that have considered the issue have reached the same result.
Driesse v. Florida Bd. of Regents, 26 F. Supp. 2d 1328 (M.D. Fla. 1998); McGregor v. Goord, 18
F. Supp. 2d 204 (N.D.N.Y. 1998); Thomson v. Ohio State Univ. Hosp., 5 F. Supp. 2d 574 (S.D.
Ohio 1998).

                                              22
the language of the statute,’ “ Dellmuth v. Muth, 491 U.S. 223, 227-28 (1989)

(quoting Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242 (1985)). “[E]vidence

of congressional intent must be both unequivocal and textual.” Dellmuth, 491 U.S.

at 230. The FMLA satisfies this test.

      The FMLA defines an “employer” to “include[] any ‘public agency,’ as defined

in section 203(x) of this title.” 29 U.S.C. § 2611(4)(A)(iii). Section 203(x), which is

actually part of the Fair Labor Standards Act (FLSA), defines “public agency” as

including “the government of a State or political subdivision thereof; . . . a State, or

a political subdivision of a State” 29 U.S.C. § 203(x). Similarly, the word

“employee” is defined to encompass “any individual employed by an employer,” and

the FMLA further specifies that “[i]n the case of an individual employed by a public

agency,” the term refers, with certain exceptions not relevant here, to “any individual

employed by a State, [or] political subdivision of a State.” 29 U.S.C. §§ 2611(3),

203(e)(1), 203(e)(2)(C). These FMLA provisions unmistakably intend to subject state

employers to the Act’s protections.

      Any doubt as to whether Congress intended to authorize damages to be claimed

against the states pursuant to a private FMLA suit in federal court, which would

necessarily require the abrogation of the Eleventh Amendment’s immunity, is erased

by the FMLA’s enforcement provisions. One of those provides that any covered


                                          23
employer violating the Act will be subject to a suit for damages by any covered

employee. 29 U.S.C. § 2617(a)(1)(A). Importantly, another states that:

      [a]n action to recover the damages or equitable relief prescribed in
      paragraph (1) may be maintained against any employer (including a
      public agency) in any Federal or State court of competent jurisdiction by
      any one or more employees.

29 U.S.C. § 2617(a)(2).

      UAB argues that these textual provisions do not sufficiently demonstrate a

congressional intention to abrogate the Eleventh Amendment. According to UAB, the

statutory cross-referencing that is necessary to discern that a “public agency” includes

state governmental employers is fatal to such a finding. However, this does not

provide a principled basis for disposing of the issue.         For example, as UAB

recognizes, in Seminole Tribe the Supreme Court found a clear legislative intent to

abrogate the Eleventh Amendment based on repeated references to the state and the

remedies made available against it in numerous subsections of a particular federal

statute. Seminole Tribe, 517 U.S. at 56-57 (reviewing subsections (A)(I), (B)(ii)(II),

(B)(iii), (B)(iv), (B)(v), (B)(vi), and (B)(vii) of 25 U.S.C. § 2710(d)(7)); see also

Fitzpatrick v. Bitzer, 427 U.S. 445, 448-49 & n.2 (1976). The reason why numerous

subsections of one statute, when read together, could be deemed sufficient to indicate

an intent to abrogate, but cross-references to various statutes could not, is a mystery.

Such an approach would violate the familiar command that statutes are to be read as

                                          24
a whole. “We believe it fundamental that a section of a statute should not be read in

isolation from the context of the whole Act, and that in fulfilling our responsibility in

interpreting legislation, we must not be guided by a single sentence or member of a

sentence, but (should) look to the provisions of the whole law, and to its object and

policy. “ Richards v. United States, 369 U.S. 1, 11 (1962) (footnotes and internal

quotations omitted). An exception to this general principle is not warranted out of

deference for the Eleventh Amendment and the important role that sovereignty plays

in the federal system. As UAB acknowledges, Congress is not required to use the

“magic words” in order to effectively overcome the Eleventh Amendment. Varner v.

Illinois State Univ., 150 F.3d 706, 711 (7th Cir. 1998); Ussery v. Louisiana, 150 F.3d

431, 435 (5th Cir. 1998); see also EEOC v. Wyoming, 460 U.S. 226, 243 n.18 (1983).

      UAB asserts that the FMLA’s explicit grant of federal court jurisdiction to

enforcement suits by the Secretary of Labor for either damages or injunctive relief, 29

U.S.C. §§ 2617(b)(2), (d), supports its position that § 2617(a)(2) only created a cause

of action for damages in federal court against public agencies that are not shielded

from such actions by the Eleventh Amendment because otherwise the latter would

have equally explicit language as the former. Essentially, UAB argues that an

abrogation of the Eleventh Amendment may occur only when an act of Congress

contains an explicit and separate statutory grant of jurisdiction in federal court for


                                           25
private damages suits against the states. That contention is but a repackaging of the

already discredited “magic words” argument. The plain language of § 2617(a)(2) is

perfectly clear: “[a]n action to recover . . . damages . . may be maintained against any

employer (including a public agency) in any Federal . . . court of competent

jurisdiction by any one or more employees.” The fact that § 2617(a)(2) also grants

state courts jurisdiction over FMLA suits, as well as federal court jurisdiction over

suits seeking equitable relief, does not provide a basis for ignoring its language that

an employee may bring a private cause of action for damages in federal court. UAB’s

argument that Blatchford supports its reasoning must be rejected. In Blatchford, the

Supreme Court ruled that the Eleventh Amendment was not abrogated based on a

general grant of federal jurisdiction over “all civil actions.” 501 U.S. at 786. By

contrast, § 2617(a)(2) clearly does more than merely provide a general grant of

jurisdiction in federal court.

       Two cases that UAB heavily relies upon do not support the conclusion that

Congress failed to unequivocally demonstrate its intent to abrogate the Eleventh

Amendment through the FMLA. The first is Dellmuth.3 That decision implied that

       3
        In Dellmuth, the Supreme Court concluded that three provisions of the Education of the
Handicapped Act (EHA) did not suffice to indicate a clear intent to abrogate the Eleventh
Amendment: (1) the preamble, which provided that it was in the national interest for the federal
government to assist the states in the subject area in question, (2) a statute, which allowed an
aggrieved party to bring a civil action in federal court under the EHA, and (3) a 1987 amendment,
which clarified that a provision reducing attorney’s fees would not apply if a state agency

                                               26
a clear provision concerning the parties which are subject to suit under the Education

of the Handicapped Act might suffice as an expression of intent to abrogate the

Eleventh Amendment. Dellmuth, 491 U.S. at 231. As set forth above, the FMLA

unquestionably contains such a provision, which clearly includes state employers

within its coverage. 29 U.S.C. §§ 2617(a)(1)(A), (a)(2).

       The second case that UAB emphasizes is Kimel. According to UAB, Kimel,

where this circuit held that the Age Discrimination in Employment Act (ADEA) did

not abrogate the Eleventh Amendment, has effectively answered the same issue with

respect to the FMLA because the two Acts contain similar relevant statutory language.

But UAB overstates the holding in Kimel, where only one member of the panel, Judge

Edmondson, held that Congress had failed to sufficiently indicate its intent to abrogate

the Eleventh Amendment with the ADEA. Kimel, 139 F.3d at 1430-33. Another

member of the panel, Judge Cox, although agreeing with the conclusion that the

states’ Eleventh Amendment immunity was not abrogated by the ADEA, expressly

declined to rule on whether a sufficient intent to abrogate was evident in that Act.

Kimel, 139 F.3d at 1444-45. The third panel member, Chief Judge Hatchett, dissented

on this issue, concluding that “Congress effectively abrogated the states’ sovereign




unreasonably protracted the final resolution of the litigation or a violation of the EHA had occurred.
Dellmuth, 491 U.S. at 228, 231-32.

                                                 27
immunity under the Eleventh Amendment.” Kimel, 139 F.3d at 1434-35. Thus,

Kimel does not control on the issue of intent to abrogate.

      Moreover, Judge Edmondson’s position in Kimel is unpersuasive because it

accepts that a sufficient intent to abrogate cannot be discerned from reading in concert

separate statutory provisions in an Act of Congress.

      This statutory structure does not provide the clarity needed to abrogate
      States’ constitutional right to sovereign immunity. For abrogation to be
      unmistakably clear, it should not first be necessary to fit together various
      sections of the statute to create an expression from which one might infer
      an intent to abrogate. Although we make no definite rule about it, the
      need to construe one section with another, by its very nature, hints that
      no unmistakable or unequivocal declaration is present.

Kimel, 139 F.3d at 1431; accord Driesse v. Florida Bd. of Regents, 26 F. Supp. 2d

1328, 1331-32 (M.D. Fla. 1998). As explained above, such an approach unjustifiably

creates an Eleventh Amendment exception to the axiom that federal Acts are to be

read as a whole. Judge Edmondson also appears to have applied a more stringent

textual requirement than is generally understood to apply to this first Seminole Tribe

factor.

      No unequivocal expression of an intent to abrogate immunity is
      unmistakably clear in the ADEA. No reference to the Eleventh
      Amendment or to States’ sovereign immunity is included. Nor is there,
      in one place, a plain, declaratory statement that States can be sued by
      individuals in federal court. To me, an intent on the part of Congress to
      abrogate the States’ constitutional right to immunity [in the ADEA] is
      not sufficiently clear to be effective under Eleventh Amendment
      jurisprudence.

                                          28
Kimel, 139 F.3d at 1430-31. No less of a strict textualist than Justice Scalia has

expressly disavowed such an approach. “I join the opinion of [four other Justices of]

the Court, with the understanding that [their] reasoning does not preclude

congressional elimination of sovereign immunity in statutory text that clearly subjects

States to suit for monetary damages, though without explicit reference to state

sovereign immunity or the Eleventh Amendment.” Dellmuth, 491 U.S. at 233 (Scalia,

J., concurring). For all these reasons, Kimel does not control on the issue of whether

Congress sufficiently indicated an intent to abrogate the Eleventh Amendment when

it passed the FMLA.

       Importantly, Thomas v. Louisiana, 534 F.2d 613, 614 & n.4 (5th Cir. 1976),4

lends support to the Garrett’s position that Congress intended to abrogate Eleventh

Amendment immunity through passage of the FMLA. As the Fifth Circuit recognized

in Thomas, Congress amended the Fair Labor Standards Act (FLSA) by adding the

following language for the express purpose of superseding a Supreme Court holding

that the FLSA lacked a clear intent to abrogate:5




       4
        Fifth Circuit Court of Appeals (Fifth Circuit) decisions issued before October 1, 1981 are
binding precedent in the Eleventh Circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1209-11 (11th
Cir. 1981) (en banc).
       5
       The Supreme Court had so ruled in Employees of the Department of Public Health &
Welfare v. Department of Public Health & Welfare, 411 U.S. 279 (1973).

                                                29
       [a]ction to recover such liability may be maintained against any
       employer (including a public agency) in any Federal or State court of
       competent jurisdiction by any one or more employees for and in behalf
       of himself or themselves and other employees similarly situated.

Thomas, 534 F.2d at 614 & n.4 (quoting 29 U.S.C. § 216(b) (1970)). This language

is almost identical to that used by Congress in 29 U.S.C. § 2617(a)(2) of the FMLA.

Moreover, when reviewing the current language from § 216(b) of the FLSA,6 which

remains substantially identical after further amendment, the Second Circuit Court of

Appeals held that it “evince[d] a clear intent to abrogate the States’ sovereign

immunity by allowing suit in federal courts.” Close v. State of New York, 125 F.3d

31, 36 (2d Cir. 1997). Therefore, when taken in conjunction with the FMLA’s

statutory provisions that identify state employees as potential plaintiffs and their state

employers as potential defendants, I believe that the best result is to conclude that the

FMLA contains an unmistakably clear intent to abrogate the states’ Eleventh

Amendment immunity.



                                               (2)




       6
        “An action to recover the liability prescribed in either of the preceding sentences may be
maintained against any employer (including a public agency) in any Federal or State court of
competent jurisdiction by any one or more employees for and in behalf of himself or themselves and
other employees similarly situated.”

                                               30
       In my opinion, the second Seminole Tribe factor, which asks whether Congress

was acting pursuant to a valid exercise of power when it promulgated the FMLA,

Seminole Tribe, 517 U.S. at 55, is also satisfied. Congress stated that the FMLA was

being passed:

       (4)     to accomplish the purposes described [herein] in a manner that,
               consistent with the Equal Protection Clause of the Fourteenth
               Amendment, minimizes the potential for employment
               discrimination on the basis of sex by ensuring generally that leave
               is available for eligible medical reasons (including
               maternity-related disability) and for compelling family reasons, on
               a gender-neutral basis; and
       (5)     to promote the goal of equal employment opportunity for women
               and men, pursuant to such clause.

29 U.S.C. § 2601(b). This explicit invocation of the Fourteenth Amendment’s Equal

Protection clause is sufficient to establish that Congress was acting pursuant to

Section Five of the Fourteenth Amendment when it passed the FMLA.7 See Morgan,



       7
         Additionally, the implementing regulations are as explicit that Congress acted pursuant to
the authority granted it by the Fourteenth Amendment.
               . . . It was intended that the Act accomplish [its] purposes . . . in a manner
        consistent with the Equal Protection Clause of the Fourteenth Amendment in
        minimizing the potential for employment discrimination on the basis of sex, while
        promoting equal employment opportunity for men and women.
29 C.F.R. § 825.101(a). The legislative history also indicates that Congress was acting under the
Fourteenth Amendment’s Equal Protection Clause. S. Rep. No. 103-3, at 16 (1993), reprinted in
1993 U.S.C.C.A.N. 3, 18.
        Further, the legislative history of the FMLA indicates that Congress was drawing on its
Commerce Clause powers as well, in addition to the Fourteenth Amendment’s Due Process Clause.
Id. However, since the Commerce Clause does not authorize Congress to abrogate the Eleventh
Amendment’s grant of immunity, Seminole Tribe, 517 U.S. at 59-66, it is irrelevant to Garrett’s
appeal save for providing an independent basis for validating the FMLA’s substantive provisions.

                                                31
384 U.S. at 652. As the Supreme Court made clear in Seminole Tribe, 517 U.S. at 59-

60, Section Five authorizes Congress to validly abrogate the Eleventh Amendment.

       Therefore, the analysis proceeds to whether the FMLA was a valid exercise of

Congress’ Fourteenth Amendment power, and applies the three-part test from Morgan.

Given that Congress has explicitly invoked the goal of equal protection when passing

the FMLA, and supported that with extensive legislative findings regarding how the

FMLA is designed to guard against gender and disability discrimination,8 which are

unquestionably goals of the Fourteenth Amendment, see United States v. Virginia,

518 U.S. 515, 533 (1996); Weinberger v. Wiesenfeld, 420 U.S. 636, 652 (1975), City

of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 446-47 (1985), it meets the

first Morgan factor because it may be regarded as an enactment to enforce the Equal

Protection Clause. See Wilson-Jones v. Caviness, 99 F.3d 203, 210 (6th Cir. 1996)

(the simplest way to meet first Morgan test is “for Congress to declare explicitly that

the legislation is passed to enforce Fourteenth Amendment rights”).

       The more difficult question is whether the FMLA satisfies the second and third

Morgan factors, which require that the legislation be (1) plainly adapted to enforce the

Equal Protection Clause of the Fourteenth Amendment, and (2) consistent with, and



       8
        29 U.S.C. §§ 2601(a), (b)(4) & (5); 29 C.F.R. § 825.101(a); S. Rep. No. 103-3, at 5-12
(1993), reprinted in 1993 U.S.S.C.A.N. 3, 7-14; H.R. Rep. No. 103-8 (1993).

                                             32
not prohibited by, the letter and spirit of the Constitution. These considerations are

constrained by the Flores principles that the legislation must (1) be enforcing or

remedial in nature, rather than an attempt to make a substantive change to the

protections the Fourteenth Amendment affords, and (2) have a congruence and

proportionality between the injury to be prevented and the means adopted to that end.

The District Court summarily concluded that the FMLA failed these tests, without

discussing the Morgan factors, and referred to the Flores guidelines that illuminate

them only in passing.

      The tertiary reliance by [Garrett] on the FMLA implicates the same
      Congressional reasoning and authority that Congress employed in
      enacting the ADA and the Rehab Act, with the same result. Although
      the FMLA does not refer to Section 5 of the Fourteenth Amendment, it
      does speak of accomplishing its purpose of promoting family integrity
      “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” and that it will “promote the goal of
      equal employment opportunity for women and men.” 29 U.S.C.
      § 2601(b)(4) and (5). These statutory expressions are no more than
      self-serving declarations of the kind criticized in Flores. Although they
      do, perhaps, give the FMLA a better chance at asserting control over the
      FMLA-proscribed employment practices by states than does similarly
      self-serving language found in the ADA and the Rehab Act, this court
      finds this statutory language in the FMLA insufficient to accomplish its
      purpose.

Garrett, 989 F. Supp. at 1412.

      Contrary to the district court’s holding, the FMLA is a valid exercise of

Congress’ Fourteenth Amendment powers because it is a justified enforcement

                                         33
measure to address sex and disability discrimination. Congress passed the FMLA in

response to employers’ sex discrimination in the offering of employee leave time

based upon presuppositions about the roles of men and women in families and as

caretakers, and of the presupposed need of women and the disabled to time off due to

pregnancies and health problems, respectively. There can be no question that it is

unconstitutional under the Fourteenth Amendment for a state to discriminate on the

basis of sex stereotypes, see Virginia, 518 U.S. 533; Weinberger, 420 U.S. at 643, or

that the Fourteenth Amendment’s protections extend to the disabled, see City of

Cleburne, 473 U.S. at 446-47.

       Nevertheless, during its legislative inquiry Congress found that, due to societal

perceptions regarding family roles, employers who offered leave time to women

discriminated against men with regard to that employment benefit, either by not

offering it, granting a shorter amount than was made available to women, or

discouraging men from taking it.9                     Such discrimination against men is

       9
        The House of Representatives found that “[d]espite the apparent conflict with Title VII of
the Civil Rights Act, only 37 percent of the[] companies extend[ed] parental leave to fathers and
often on a different (and less extended) basis than to mothers.” H.R. Rep. No. 100-511, pt. 2, at 24
(1988); see also S. Rep. No. 103-3, at 14-15 (1993), reprinted in 1993 U.S.C.C.A.N. 3, 17 (noting
37% availability of “maternity” leave at businesses with more than 100 workers, compared to only
18% availability of “paternity” leave); 138 Cong. Rec. S12,095, S12,096 (daily ed. August 11, 1992)
(remarks of Sen. Kennedy) (noting 1990 Bureau of Labor Statistics study which found that “only
18 percent of fathers at medium and large firms are covered by an unpaid paternity leave policy, and
only 6 percent of fathers at small firms had the right to take leave”); The Parental and Medical Leave
Act of 1987: Hearings Before the Subcomm. on Children, Families, Drugs and Alcoholism of the
Senate Comm. on Labor and Human Resources, Part 2, 100th Cong. 536 (1987) [hereinafter

                                                 34
unconstitutional. “[A] father, no less than a mother, has a constitutionally protected

right to the companionship, care, custody, and management of the children he has

sired and raised.” Weinberger, 420 U.S. at 652 (internal quotation and citation

omitted).

       By the same token, Congress also found that women experienced discrimination

related to leave time, in that employers’ perceptions that women served as caretakers

and therefore were more likely to ask for leave time contributed to a decreased




Hearings: Leave Act of 1987, Part 2] (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.”);
The Parental and Medical Leave Act of 1986: Joint Hearing Before the Subcomm. on Labor
Management Standards of the House Comm. on Education & Labor, 99th Cong. 146, 147 (1986)
[hereinafter Hearings: Leave Act of 1986] (statement of Washington Council of Lawyers) (“Parental
leave for fathers . . . is rare. . . . Where child-care leave policies do exist, men . . . receive
notoriously discriminatory treatment in their request for such leave.”); id. at 99, 101 n.2 (statement
of Women’s Legal Defense Fund, citing Catalyst, Report on a National Study of Parental Leaves,
30, 37 (1986)) (“[B]ecause of sex discrimination against men, some working fathers may find it
more difficult than their female counterparts to be permitted to accommodate family responsibilities
without suffering adverse employment consequences. In a recent study by Catalyst, an independent
research firm, 51.8% of companies surveyed reported that they give parental leave to mothers, but
only 37.0% reported that they provide such leave to fathers – even though such a sex-base
differential clearly violates existing law.”); id. at 21 (statement of Thomas Donahue for AFL-CIO)
(drawing on national experience with union contracts and corroborating lack of policies permitting
working fathers to take time off for family responsibilities). See generally Schafer v. Board of
Public Education, 903 F.2d 243 (3d Cir. 1990) (male public school teacher challenged school
board’s policy of granting one year of child-rearing leave to female employees only); Knussman v.
State of Maryland, 16 F. Supp. 2d 601 (D. Md. 1998) (male police officer challenged state’s
presumption that the mother is the “primary care giver” entitled to additional leave); Chavkin v.
Santaella, 439 N.Y.S.2d 654 (App. Div. 1981) (male probation officer challenged city probation
department’s practice of allowing only female employees to use accrued sick leave to extend infant
care leave).

                                                 35
willingness to hire women in the first instance or promote them.10 In addition, women

were rendered more vulnerable to this form of discrimination based on employer

concerns that they would need leave time for pregnancies,11 while the disabled

suffered from it as well due to employer fears that the health problem would require

time off or preclude a return to work after a medical absence.12 Particularly relevant

in this Eleventh Amendment context is that Congress found that public sector

employees were suffering comparable sex discrimination problems with regard to



       10
          138 Cong. Rec. H8226, H8227 (daily ed. September 10, 1992) (remarks of Rep. Hayes)
(“Too often women experience the nightmare of going in to their employer with the news that they
are pregnant. Although they are valued employees, up to the moment they became pregnant,
suddenly they find themselves unwanted. . . . They are offered an unacceptable choice: Keep a job
or raise a family.”); Hearings: Leave Act of 1987, Part 2, supra note 9, at 173-74 (statement of
Peggy Montes, Mayor’s Commission on Women’s Affairs, City of Chicago) (“Job opportunities for
[women with children] are limited, and they often miss pay increases and promotions. The lack of
uniform parental and medical leave policies in the work place has created an environment where
discrimination is rampant. Very often we are contacted by women workers who are at risk of losing
their jobs or have lost them because they are pregnant, [or] gave birth to a child . . . .”); Hearings:
Leave Act of 1986, supra note 9, at 100 (statement of Women’s Legal Defense Fund).
       11
          Hearings: Leave Act of 1986, supra note 9, at 100 (statement of Women’s Legal Defense
Fund) (“Historically, denial or curtailment of women’s employment opportunities has been traceable
directly to the pervasive presumption that women are mothers first, and workers second. This
prevailing ideology about women’s roles has in turn justified discrimination against women when
they are mothers or mothers-to-be.”); id. at 36, 42 n.48 (statement of National Women’s Political
Caucus, pointing to amicus brief filed with the Supreme Court by the ACLU in California Federal
Savings & Loan Ass’n v. Guerra, 479 U.S. 272, 275 (1987)) (stating provision of special legal
protections “put women, not on a pedestal, but in a cage”; “[t]he assumption that women will
become pregnant and leave the labor market is at the core of the sex stereotyping resulting in
unfavorable disparate treatment of women in the workplace.”) (internal quotation and citation
omitted).
       12
         S. Rep. No. 103-3, at 12 (1993) (testimony regarding employment discrimination against
cancer survivors).

                                                  36
leave time as employees in the private sector.13 Thus, through the FMLA Congress

unquestionably sought to protect Fourteenth Amendment Equal Protection interests

in response to a demonstrably pervasive discrimination problem.14 Consequently, the

concern in Flores, 521 U.S. at 530-32, that the RFRA was not implemented in

response to a serious or demonstrated need to protect against religious bigotry is

inapplicable to the FMLA.

       Further, the FMLA’s remedial measures are plainly adapted to enforce the

interest in combatting sex and disability discrimination in employment and are

consistent with, and not prohibited by, the letter and spirit of the constitution, within

the Flores constraints of enforcement and proportionality. By setting a minimum

standard for family leave for all eligible employees – male and female – the FMLA


       13
         Hearings: Leave Act of 1986, supra note 9, at 30 (statement of Meryl Frank, Yale Bush
Center) (“[P]ublic sector leaves don’t vary very much from private sector leaves”); id. at 147 (1986)
(statement of Washington Council of Lawyers) (“Parental leave for fathers . . . is rare. . . . Where
child-care leave policies do exist, men, both in the public and private sectors, receive notoriously
discriminatory treatment in their request for such leave.”).
       14
          Relevant here are two arguments UAB raises which may be quickly disposed of. First,
UAB asserts that the FMLA is invalid because it does not protect the constitutional rights of
members of a “suspect” or “discrete” class. Second, UAB contends that the FMLA is not an effort
to remedy discrimination against a class of persons protected by the Fourteenth Amendment because
it reaches all employees, regardless of whether they have been subjected to discrimination. As an
initial matter, these arguments misunderstand the applicable jurisprudence. The guarantee of equal
protection is not enjoyed only by those having a status that results in a higher standard of review.
See Cleburne, 473 U.S. at 446-47 (disabled individuals enjoy equal protection guarantees despite
that disability not a quasi-suspect class). Apart from that, UAB’s arguments are incorrect since the
FMLA protects against discrimination on the basis of sex and disability, which are protected classes
under the Equal Protection clause.

                                                 37
extends to male workers the types of leave benefits more often available to working

women. Just as importantly, by providing male workers with the opportunity for

parental leave, the FMLA “help[s] to eliminate the stereotype – no longer valid in

today’s working world – that women are exclusively responsible for childcare.”15 In

addition, by authorizing leave for all serious health conditions rather than only for

pregnancy related disabilities, the FMLA discourages discrimination against women

of childbearing age.16

       UAB, by emphasizing the affirmative obligations that the FMLA places on

employers and suggesting that this represents a substantive change in the protections

the Fourteenth Amendment assures, argues that the FMLA is not merely remedial.17

However, Congress determined that a mere negative imperative upon employers, in

the form of a law prohibiting them from discriminating in the granting of employee

leave time on the basis of sex, was insufficient because it had already proven

inadequate under Title VII, which already mandated that employers who granted

       15
       Hearings: Leave Act of 1986, supra note 9, at 147 (statement of Washington Council of
Lawyers).
       16
         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.”).
       17
         This argument was accepted in Driesse, 26 F. Supp. 2d at 1333, McGregor, 18 F. Supp. 2d
at 208, and Thomson, 5 F. Supp. 2d at 579-80, and apparently by the court below, Garrett, 989 F.
Supp. at 1412.

                                                38
parental leave had to do so equally between the sexes, see 42 U.S.C. § 2000e-2(a), and

persisted despite protections such as the Pregnancy Discrimination Act, 42 U.S.C.

§ 2000e(k), and 42 U.S.C. § 1983.18 Moreover, the Title VII experience also taught

Congress that a mere prohibition was impracticable because it placed too great of an

enforcement burden upon employees: the costs of legal challenges to asserted

violations were prohibitive, and for those who did not have this problem the time

spent litigating negated any eventual positive result.19

       This experience justifies Congress’ choice to impose affirmative obligations

upon employers through the FMLA and, contrary to UAB’s position, distinguishes the

FMLA from the concerns the Supreme Court in Flores used to invalidate the RFRA.

For example, as even Flores recognized, broad and aggressive legislation in the voting

rights context to enforce the constitutional guarantees against voting discrimination,

       18
         See H.R. Rep. No. 103-8, pt. 1, at 28 (1993); H.R. Rep. No. 100-511, pt. 2, at 22, 24
(1988); Family and Medical Leave Act of 1987: Joint Hearing Before the Subcomm. on Civil
Service and the Subcomm. on Compensation and Employee Benefits of the House Comm’n on Post
Office and Civil Service, 100th Cong. 31, 32 (1987) (statement of Professor Eleanor Holmes Norton,
Georgetown Univ. Law Center) (lack of consistency in employer leave policies based on sex
“constitutes a prima facie case of violation of Title VII of the 1964 Civil Rights Act”).
        Several district courts have reasoned that since Congress had already established protections
against this form of sex discrimination in employment, for example through Title VII actions or
causes against state employers under 42 U.S.C. § 1983, the addition of the FMLA’s remedies
rendered that legislation incongruent. See Driesse, 26 F. Supp. 2d at 1333-34; Thomson, 5 F. Supp.
2d at 580. However, since Congress determined that these prior efforts to protect against sex
discrimination in the offering of employee leave time had proved unsuccessful, the existence of
those preexisting protections cannot serve as a basis to conclude that the FMLA lacks congruence.
       19
         139 Cong. Rec. H387 (daily ed. February 3, 1993) (remarks of Rep. Ackerman concerning
his lawsuit to obtain parental leave).

                                                 39
including an affirmative duty to submit changes in electoral practices to the

Department of Justice for clearance,20 were within Congress’ Fourteenth Amendment

powers because they were (1) aimed at actions “with a long history” as “ ‘notorious

means to deny and abridge voting rights on racial grounds,’ “ and (2) “necessary given

the ineffectiveness of the existing voting rights laws and the slow costly character of

case-by-case litigation.” Flores, 521 U.S. at 526, 533 (emphasis added and citations

omitted) (quoting South Carolina v. Katzenbach, 383 U.S. 301, 355 (1966) (Black, J.,

concurring and dissenting)). Congress found that an analogous situation existed with

respect to sex discrimination in the offering of employee leave time. Given the

ineffectiveness of prior attempts to assure compliance in this realm with the

Fourteenth Amendment’s guarantee of equal protection, Congress was within its

powers to take more aggressive remedial measures.

      Congress, unlike any State or political subdivision, has a specific
      constitutional mandate to enforce the dictates of the Fourteenth
      Amendment. The power to “enforce” may at times also include the
      power to define situations which Congress determines threaten principles
      of equality and to adopt prophylactic rules to deal with those situations.

City of Richmond v. J.A. Croson Co., 488 U.S. 469, 490 (1989).

      The Supreme Court in Flores warned that congressional invocations of the

Fourteenth Amendment could lack the congruence necessary to their validity


      20
           See City of Rome v. United States, 446 U.S. 156 (1980).

                                                40
depending on the degree, and justification therefor, of their “intrusion into the States’

traditional prerogatives and general authority to regulate for the health and welfare of

their citizens.” Flores, 521 U.S. at 534. The Thomson court appears to have invoked

that principle by concluding that the FMLA represents “an inappropriate interference

into a traditional area of state sovereignty which runs afoul of the spirit of the

Constitution and the concepts of federalism which it contains.” Thomson, 5 F. Supp.

2d at 581; see also Driesse, 26 F. Supp. 2d at 1334. However, Thomson and Driesse

erred by failing to recognize that, although the regulation of employee leave time

might be an area traditionally reserved to the states, Congress’ belief that its prior

efforts to prohibit unconstitutional sex discrimination in employee leave time, such

as through Title VII and its later amendment by the Pregnancy Discrimination Act, 42

U.S.C. §§ 1983, 2000e(k), had been unsuccessful justified its conclusion that a

blanket, fixed guarantee of leave time was necessary to “minimize[] the potential for

employment discrimination on the basis of sex by ensuring generally that leave is

available for eligible medical reasons (including maternity-related disability) and for

compelling family reasons, on a gender-neutral basis.” 29 U.S.C. § 2601(b)(4); see

also 29 U.S.C. § 2601(a)(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”); S. Rep. No. 103-3, at 16


                                           41
(1993), reprinted in 1993 U.S.C.C.A.N. 3, 18 (“A law providing special protection to

women or any defined group, in addition to being inequitable, runs the risk of causing

discriminatory treatment. S. 5, by addressing the needs of all workers, avoids such a

risk”); H.R. Rep. No. 100-511, pt. 2, at 26 (1988)21.

       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.”

Flores, 521 U.S. at 518 (quoting Fitzpatrick, 427 U.S. at 455).

       Given Congress’ legislative findings as to the pervasive problem of sex

discrimination in the offering of employee leave time, and lack of success with prior

efforts to effectuate anti-discriminatory legislation on that issue, the FMLA’s limited

measures assure its congruence with the problem that it seeks to remedy and deter.

The FMLA (1) applies only to firms employing fifty or more employees (which

comprise approximately five per cent of businesses)22 for at least twenty weeks during




       21
         “Another significant benefit of the temporary medical leave provided by this legislation is
the form of protection it offers women workers who bear children. Since all employees who are
temporarily unable to work due to serious health conditions are treated the same under the bill, it
does not create the risk of discrimination against pregnant women which is posed by legislation
which provides job protection only for pregnant women. Legislation for pregnant women only give
employers an economic incentive to discriminate against women in hiring policies; legislation
helping all workers equally does not have this effect.”
       22
            See 138 Cong. Rec. S12,095-96 (daily ed. Aug. 11, 1992) (remarks of Sen. Kennedy).

                                                42
a calendar year,23 (2) protects only employees who have worked for a covered

employer for at least one year, during which they must have worked at least 1,250

hours,24 (3) guarantees only unpaid leave,25 (4) requires covered employees to give

thirty days advance notice of foreseeable leave requests, and in that instance mandates

a reasonable effort not to unduly disrupt the employer’s operations,26 and (5) allows

employers to require the certification of serious medical conditions.27 Thus, the

FMLA certainly can be said to comply with its stated goal of assuring employee

protections “in a manner that accommodates the legitimate interests of employers.”

29 U.S.C. § 2601(b)(2). Also significant for purposes of the Eleventh Amendment is

that Congress found that compliance with the FMLA would be no more burdensome

for state, as opposed to private, employers.28 Nevertheless, it demonstrated a


       23
            29 U.S.C. § 2611(4)(A)(i).
       24
            29 U.S.C. § 2611(2)(A).
       25
            29 U.S.C. § 2612(c).
       26
            29 U.S.C. § 2612(e).
       27
          29 U.S.C. § 2613.
         The extensive series of provisions limiting the scope and burden of the FMLA were noted
in the legislative record. 138 Cong. Rec. S12,095-96 (daily ed. August 11, 1992) (remarks of Sen.
Kennedy).
       28
         Hearing on H.R. 770, the Family and Medical Leave Act of 1989: Hearing Before the
Subcomm. on Labor-Management Relations of the House Comm. on Education and Labor, 101st
Cong. 45, 53 (1989) (statement of Gerald McEntee, AFSCME) (based on its experience, AFSCME
believed that “the FMLA will not levy significant additional costs on state and local governments
and if government at all levels can adopt unpaid leave policies, then so can private industry”);

                                               43
concerted effort to minimize the burden that the FMLA did impose on state employers

by excluding from its coverage state employees who hold certain high-ranking or

sensitive positions. 29 U.S.C. §§ 2611(3), 203(e)(2)(C). The FMLA is therefore

substantively distinguishable from the RFRA, which applied without restriction to all

governmental acts, whether federal, state, or local, Flores, 521 U.S. at 532-34.

       Further, although the district courts in Thomson, 5 F. Supp. 2d at 580,

McGregor, 18 F. Supp. 2d at 209, and Driesse, 26 F. Supp. 2d at 1334, found fault

with the FMLA on the basis that it imposes a significant financial burden on state

employers, this assertion was based on mere speculation and is contrary to Congress’

finding that family and medical leave is cost-effective because it results in decreased

costs related to hiring, training, turnover, and absenteeism.29 “When Congress makes

findings on essentially factual issues . . . those findings are of course entitled to a great

Hearings: Leave Act of 1987, Part 2, supra note 9, at 305 (statement of Roberta Lynch, AFSCME)
(belief that FMLA will not impose significant costs on government “is one of the major reasons why
the National Conference of State Legislatures, which represents state legislatures in all 50 states, has
endorsed this legislation”; noting “this leave policy has presented very little problems for an
employer like the State of Illinois”).
       29
          S. Rep. No. 103-3, at 12-14, 16-18 (1993), reprinted in 1993 U.S.C.C.A.N. 3, 14-16, 18-21
(noting testimony of small business owners, governmental employers, and chief executive officers,
as well as numerous workplace studies by governmental bodies and private institutes; for example,
Aetna Life and Casualty Company reportedly saved $2 million in 1991 by reducing employee
turnover through implementation of family leave policy, and a study by the Small Business
Administration concluded that providing family and medical leave cost employers a minimal $6.70
annually per covered employee); The Family and Medical Leave Act of 1991: Hearing on S. 5
Before the Subcomm. on Children, Family, Drugs and Alcoholism of the Senate Comm. on Labor
and Human Resources, 102d Cong. 12, 13, 23, 35, 91 (1991) (noting studies indicating that cost of
providing leave would be as inexpensive as $5.30 per employee, on an annual basis).

                                                  44
deal of deference, inasmuch as Congress is an institution better equipped to amass and

evaluate the vast amounts of data bearing on such an issue.” Walters v. National

Ass’n of Radiation Survivors, 473 U.S. 305, 330 n.12 (1985).

       Importantly, the FMLA contains a mechanism for reviewing its effectiveness

and the burden that it imposes on employers by creating a Commission on Leave to

study actual costs and benefits of the Act and report to Congress two years after

enactment. 29 U.S.C. § 2632. This represents another distinguishing feature from the

RFRA, which the Supreme Court criticized for having no time or enforcement

limitations.30 Flores, 521 U.S. at 532-33. Contrary to the speculation concerning

costs in which the Thomson, McGregor, and Driesse courts indulged, the Commission

has found that the vast majority of work sites (between 89.2% and 98.5%) reported

little or no cost from FMLA compliance in four broad survey areas.31

       Contrary to the position taken in McGregor, 18 F. Supp. 2d at 209-10, the

FMLA’s failure to require a specific finding of discriminatory intent on the part of the

employer is not necessarily sufficient to invalidate it. Legislation passed by Congress

to combat discrimination through enforcement of the Equal Protection Clause does not


       30
          The Supreme Court was careful to clarify that “[t]his is not to say, of course, that § 5
legislation requires termination dates, geographic restrictions or egregious predicates.” Flores, 521
U.S. at 533.
       31
        Commission on Leave, United States Dep’t of Labor, A Workable Balance: Report to
Congress on Family and Medical Leave Policies 125-26 (1996).

                                                 45
always require a showing of discriminatory animus. See Alexander v. Choate, 469

U.S. 287, 295-97 (1985). Congress, pursuant to the Fourteenth Amendment, may

“prohibit laws with discriminatory effects in order to prevent . . . discrimination in

violation of the Equal Protection Clause.” Flores, 521 U.S. at 529. This is because,

as it is generally understood, the Fourteenth Amendment empowers Congress to enact

appropriate legislation establishing more exacting requirements than those minimum

safeguards provided in the amendment. See Fullilove v. Klutznick, 448 U.S. 448,

477, (1980) (plurality opinion); City of Rome, 446 U.S. at 177; Morgan, 384 U.S. at

648-51.

      A construction of § 5 that would require a judicial determination that the
      enforcement of the state law precluded by Congress violated the
      Amendment, as a condition of sustaining the congressional enactment,
      would depreciate both congressional resourcefulness and congressional
      responsibility for implementing the Amendment. It would confine the
      legislative power in this context to the insignificant role of abrogating
      only those state laws that the judicial branch was prepared to adjudge
      unconstitutional, or of merely informing the judgment of the judiciary by
      particularizing the “majestic generalities” of § 1 of the Amendment.

Morgan, 384 U.S. at 648-49 (footnote omitted).

      Given Congress’ findings about the continuing pervasive problem of sex

discrimination in the offering of employee leave time despite its previous legislative

attempts to combat that problem through less burdensome legal prohibitions, the

FMLA cannot be considered “so out of proportion to a supposed remedial or


                                         46
preventive object that it cannot be understood as responsive to, or designed to prevent,

unconstitutional behavior.” Flores, 521 U.S. at 532. The widespread nature of the

problem that Congress hoped to address through the FMLA, and prior unsuccessful

legislative efforts to provide effective protections, justify Congress’ imposition of an

affirmative duty upon covered employers, particularly because § 5 legislation does not

require “egregious predicates.” Flores, 521 U.S. at 533. Rather, the FMLA is at the

least broadly appropriate “in light of the evil presented,” based on the “ ‘historical

experience . . . it reflects,’ “ Flores, 521 U.S. at 525, 530 (quoting South Carolina v.

Katzenbach, 383 U.S. 301, 308 (1966)), particularly since it contains the types of

measured limitations on coverage and enforcement that “tend to ensure Congress’

means are proportionate to ends legitimate under § 5,” Flores, 521 U.S. at 533.

Consequently, given that the FMLA is not subject to the concerns the Supreme Court

espoused in Flores, this tribunal should defer to Congress’ judgment that the Act is an

appropriate measure to protect the citizenry from unconstitutional sex discrimination

in employment. “It is for Congress in the first instance to ‘determin[e] whether and

what legislation is needed to secure the guarantees of the Fourteenth Amendment,’

and its conclusions are entitled to much deference.” Flores, 521 U.S. at 536 (quoting

Morgan, 384 U.S. at 651).




                                          47
                                         III.

      Accordingly, for the reasons that I have explained above, I concur to the extent

that the decision below, as it respects the ADA and Section 504 of the Rehabilitation

Act, must be reversed due to this circuit’s intervening decision in Kimel v. State of

Florida Board of Regents, 139 F.3d 1426 (11th Cir. 1998).

      However, I would hold that Congress validly abrogated the States’ Eleventh

Amendment immunity through passage of the FMLA, and thus respectfully dissent

on that issue.




                                         48
