In the
United States Court of Appeals
For the Seventh Circuit

No. 97-3253

Dr. Iris I. Varner, et al.,

Plaintiffs-Appellees,

and

United States of America,

Intervening Appellee,

v.

Illinois State University, et al.,

Defendants-Appellants.



Appeal from the United States District Court
for the Central District of Illinois, Peoria Division.
No. 95 C 1355--Michael M. Mihm, Judge.

On Remand from the United States Supreme Court
No. 98-1117



Argued May 31, 2000--Decided September 6, 2000



      Before Flaum, Chief Judge, and Bauer and
Harlington Wood, Jr., Circuit Judges.

      Flaum, Chief Judge. The plaintiffs comprise a
class of tenured and tenure-track female faculty
members at Illinois State University (the
"University") who contend that the University
pays female professors less money than their male
counterparts. In 1995, the plaintiffs filed suit
seeking both monetary and injunctive relief
against the University and various of its
officers and agents (collectively the
"defendants"), alleging violations of the Equal
Pay Act, 29 U.S.C. sec. 206(d), and Title VII, 42
U.S.C. sec. 2000e et seq. The University, which
the plaintiffs concede is a state entity, moved
to dismiss the Equal Pay Act claim, as well as
the claim for compensatory relief under Title
VII, arguing that the Eleventh Amendment bars
federal jurisdiction over these claims. The
district court denied the defendants’ Eleventh
Amendment defense, and the defendants appealed
that decision to this Court under the collateral
order doctrine, see Puerto Rico Aqueduct & Sewer
Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 145
(1993) (holding that the collateral order
doctrine allows for immediate appellate review of
the denial of an Eleventh Amendment immunity
claim).

      In our initial consideration of this case, we
affirmed the district court in all respects,
finding that Congress clearly intended to
abrogate the States’ Eleventh Amendment immunity
through its passage of the Equal Pay Act, and
that this abrogation was a valid exercise of
congressional authority under sec. 5 of the
Fourteenth Amendment. See Varner v. Illinois St.
Univ., 150 F.3d 706, 717 (7th Cir. 1998),
vacated, 120 S.Ct. 928 (2000). Although we
further determined that Title VII contained an
explicit abrogation of the States’ Eleventh
Amendment immunity, we did not consider whether
that abrogation was a valid exercise of
congressional authority because we held that the
defendants had waived that issue by failing to
present it sufficiently to the district court.
See id. at 717 n.14. The defendants appealed our
rejection of their Eleventh Amendment defense to
the United States Supreme Court.

      On writ of certiorari to the Supreme Court, our
original opinion affirming the district court was
vacated and remanded, see Illinois St. Univ. v.
Varner, 120 S.Ct. 928 (2000), for further
consideration in light of the Court’s intervening
decision in Kimel v. Florida Bd. of Regents, 120
S.Ct. 631 (2000) (holding that the Age
Discrimination in Employment Act ("ADEA"), 29
U.S.C. sec. 621 et seq., was not a valid
abrogation of the States’ sovereign immunity).
After considering the defendants’ assertion of
Eleventh Amendment immunity against the backdrop
of the Supreme Court’s decision in Kimel, it
remains our conclusion that the district court
properly rejected the defendants’ claim of
sovereign immunity and denied their motion to
dismiss. Consequently, we affirm the decision of
the district court.

I.  Analysis
      The Eleventh Amendment provides that, "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. While the Eleventh Amendment
appears to restrict only the federal courts’
Article III diversity jurisdiction, the Amendment
has long been understood "to stand not so much
for what it says, but for the presupposition of
our constitutional structure which it confirms."
Blatchford v. Native Village of Noatak, 501 U.S.
775, 779 (1991). Under the Eleventh Amendment,
each State in our federal system remains a
sovereign entity and may not be sued by an
individual without its consent, see Seminole
Tribe of Florida v. Florida, 517 U.S. 44, 54
(1996) (citing Hans v. Louisiana, 134 U.S. 1, 13
(1890)).

      Although the Eleventh Amendment grants
unconsenting States immunity from suit in federal
court, that immunity is not absolute. See College
Savings Bank v. Florida Prepaid Postsecondary
Educ. Expense Bd., 119 S.Ct. 2219, 2223 (1999);
see also Fitzpatrick v. Bitzer, 427 U.S. 445, 456
(1976) ("[T]he Eleventh Amendment, and the
principles of state sovereignty which it
embodies, . . . are necessarily limited by the
enforcement provisions of sec. 5 of the
Fourteenth Amendment."). Congress may
constitutionally abrogate the States’ Eleventh
Amendment immunity if two criteria are satisfied:
(1) Congress must unequivocally express its
intent to abrogate the States’ sovereign
immunity; and (2) in abrogating that immunity,
Congress must act pursuant to a valid exercise of
power. See Seminole Tribe, 517 U.S. at 55.
Because the defendants no longer contest
Congress’ intent to abrogate the States’ Eleventh
Amendment immunity in this case, we need only
consider the question of whether the abrogations
of sovereign immunity contained in the statutes
at issue are valid exercises of congressional
power under sec. 5 of the Fourteenth
Amendment./1

      In City of Boerne v. Flores, 521 U.S. 507
(1997), the Supreme Court explained that
"[l]egislation 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." Id. at 518; see also
Kimel, 120 S.Ct. at 644 ("Congress’ power ’to
enforce’ the [Fourteenth] 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."). At the same time, the City of Boerne
decision made clear that this affirmative grant
of congressional power is limited to "enforcing"
the Amendment’s restrictions on the States and
does not extend to determining what constitutes
a constitutional violation. City of Boerne, 521
U.S. at 519. Recognizing that Congress must have
latitude in determining where the line lies
between appropriate remedial legislation and a
substantive redefinition of a constitutional
right, the Court held that "[t]here must be a
congruence and proportionality between the injury
to be prevented or remedied and the means adopted
to that end." Id. at 520.

      Because the requirements of congruence and
proportionality mark the boundaries of Congress’
Fourteenth Amendment enforcement power, and
because Congress lacks the power to abrogate the
States’ sovereign immunity under Article I of the
Constitution,/2 see Seminole Tribe, 517 U.S. at
72-73, congressional legislation that creates a
cause of action against the States must satisfy
the congruence and proportionality test. In
Kimel, 120 S.Ct. 631, the Supreme Court used the
congruence and proportionality test to determine
whether the ADEA validly abrogated the States’
sovereign immunity. The ADEA makes it unlawful
for an employer, including a State, "to fail or
refuse to hire or to discharge any individual or
otherwise discriminate against any individual .
. . because of such individual’s age," 29 U.S.C.
sec. 623(a)(1). The Kimel Court held that,
although the ADEA contained a clear statement of
Congress’ intent to abrogate the States’ Eleventh
Amendment immunity, that abrogation exceeded
Congress’ Fourteenth Amendment enforcement power.
Kimel, 120 S.Ct. at 640-50.

      Applying the congruence and proportionality
test, the Kimel Court relied on a number of
factors in concluding that Congress exceeded its
authority in creating an individual cause of
action for money damages against the States under
the ADEA. Because age is not a suspect
classification under the Equal Protection Clause,
States may discriminate on the basis of age
without offending the Fourteenth Amendment if the
challenged age classification is rationally
related to a legitimate state interest. The Court
found that the ADEA, "through its broad
restriction on the use of age as a discriminating
factor, prohibits substantially more state
employment decisions and practices than would
likely be held unconstitutional under the
applicable [constitutional] standard." Id. at
647. Furthermore, the Court found little in the
ADEA’s legislative record to confirm that age
discrimination by the States was a widespread
problem that demanded a strong remedy. See id. at
648-49. "In light of the indiscriminate scope of
the Act’s substantive requirements, and the lack
of evidence of widespread and unconstitutional
age discrimination by the States," the Court held
that the ADEA’s abrogation of the States’
Eleventh Amendment immunity was not a valid
exercise of Congress’ enforcement power under
sec. 5 of the Fourteenth Amendment. Id. at 650.

      This Court has recently applied the congruence
and proportionality test in the context of
individual suits against the States under the
Americans With Disabilities Act ("ADA"), 42
U.S.C. sec. 12111 et seq. In Erickson v. Board of
Governors of State Colleges and Universities for
Northeastern Ill. Univ., 207 F.3d 945 (7th Cir.
2000), we held that Title I of the ADA, 42 U.S.C.
sec.sec. 12111-12117, which prohibits
discrimination in employment based on disability
and requires employers to reasonably accommodate
disabled individuals, was an invalid exercise of
congressional authority under sec. 5 of the
Fourteenth Amendment. See also Stevens v.
Illinois Dep’t of Transp., 210 F.3d 732 (7th Cir.
2000). In reaching this conclusion, we determined
that "the disparate-impact and mandatory-
accommodation rules found in the ADA" far
exceeded the constitutional protections provided
by the Equal Protection Clause. Erickson, 207
F.3d at 951; see also Stevens, 210 F.3d at 738.
Furthermore, we concluded that these provisions
could not be sustained as "reasonable
prophylactic legislation." Erickson, 207 F.3d at
951-52; see also Stevens, 210 F.3d at 740-41.
Underlying this holding was our understanding
that Congress could not subject disability
discrimination, which receives only rational
basis review under the Constitution, see Cleburne
v. Cleburne Living Center, 473 U.S. 432, 442-46
(1985), to more searching scrutiny. See Erickson,
207 F.3d at 951 (holding that the ADA "exceed[s]
the sec. 5 power . . . at least to the extent it
extends beyond remedies for irrational
discrimination"). In light of these principles
drawn from prior precedent, we now review the
defendants’ challenge to the validity of
Congress’ abrogation of the States’ Eleventh
Amendment immunity in the Equal Pay Act de novo,
see EEOC v. AIC Sec. Investigations, Ltd., 55
F.3d 1276, 1279 (7th Cir. 1995) (stating that
pure claims of law are reviewed de novo).

A.   The Equal Pay Act

      The Equal Pay Act prohibits discrimination in
wages based on gender./3 In order to prevail on
an Equal Pay Act claim, an employee must first
demonstrate unequal pay for "equal work on jobs
the performance of which requires equal skill,
effort, and responsibility, and which are
performed under similar working conditions." 29
U.S.C. sec. 206(d)(1); see Corning Glass Works v.
Brennan, 417 U.S. 188, 195 (1974). Once an
employee has met her burden of showing unequal
pay for equal work, an employer may avoid
liability under the Act by proving that the wage
disparity exists "pursuant to (i) a seniority
system; (ii) a merit system; (iii) a system which
measures earnings by quantity or quality of
production; or (iv) a differential based on any
other factor other than sex." 29 U.S.C. sec. 206
(d)(1); see Corning Glass, 417 U.S. at 196. In
effect, the provisions of the Equal Pay Act
establish a rebuttable presumption of sex
discrimination such that once an employee has
demonstrated that an employer pays members of one
sex more than members of the opposite sex, the
burden shifts to the employer to offer a gender-
neutral justification for that wage differential.
See id. at 196; Fallon v. Illinois, 882 F.2d
1206, 1211 (7th Cir. 1989).

      Because a prima facie case under the Equal Pay
Act requires only an initial showing of a wage
differential between the sexes, the Act’s
remedial provisions do not perfectly mirror the
Constitution’s prohibition on gender
discrimination. Under the Equal Pay Act, an
employer is potentially subject to liability
without a showing of discriminatory intent. See
Stopka v. Alliance of Am. Insurers, 141 F.3d 681,
685 (7th Cir. 1998) ("The E[qual] P[ay] A[ct]
does not require proof of discriminatory
intent."); see also Berry v. Board of Supervisors
of LSU, 715 F.2d 971, 975 (5th Cir. 1983)
(holding that the mere allegation that a female
professor was paid less than a male colleague for
equal work stated a claim under the Equal Pay
Act). In contrast, in order to make out a claim
of gender discrimination under the Constitution,
an individual must demonstrate an intent to
discriminate on the part of the employer. See
Personnel Administrator of Mass. v. Feeney, 442
U.S. 256, 274 (1979) (stating that it is
"purposeful [gender] discrimination . . . that
offends the Constitution") (internal quotation
omitted); Washington v. Davis, 426 U.S. 229, 238-
39 (1976). Because the Equal Pay Act allows a
finding of gender discrimination absent a showing
of discriminatory intent, while the Constitution
does not, the effect of the Equal Pay Act’s
burden-shifting remedial scheme is to prohibit at
least some conduct that is constitutional.

      The plaintiffs concede that the Equal Pay Act
does not preclude the possibility that an
employer will be held liable for conduct that is
not prohibited by the Constitution. However, as
the plaintiffs note, the Supreme Court has made
clear that the mere fact that a statute’s
remedial regime is broader in scope than the
constitutional prohibitions against
discrimination does not mean that the statute is
not a proportional and congruent response to that
problem. See Kimel, 120 S.Ct. at 644 ("Congress’
sec. 5 power is not confined to the enactment of
legislation that merely parrots the precise
wording of the Fourteenth Amendment."); City of
Boerne, 521 U.S. at 518. Section 5 of the
Fourteenth Amendment is a remedial provision, and
Congress has both the power and the discretion to
enforce its guarantees through prohibitions
broader than those contained in the Constitution.
See Kimel, 120 S.Ct. at 644. Furthermore, because
"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, . . . Congress must have wide
latitude in determining where it lies." City of
Boerne, 521 U.S. at 519-20; see also Kimel, 120
S.Ct. at 644 ("[T]he determination whether
purportedly prophylactic legislation constitutes
appropriate remedial legislation, or instead
effects a substantive redefinition of the
Fourteenth Amendment right at issue, is often
difficult."); Katzenbach v. Morgan, 384 U.S. 641,
651 (1966) ("Correctly viewed, sec. 5 is a
positive grant of legislative power authorizing
Congress to exercise its discretion in
determining whether and what legislation is
needed to secure the guarantees of the Fourteenth
Amendment."). The question before us, therefore,
is not whether the remedial provisions of the
Equal Pay Act prohibit some constitutional
conduct. Instead, we must consider whether the
Act can be characterized as a proportional and
congruent response to the problem of
unconstitutional wage discrimination based on
gender.

      The defendants contend that the burden-shifting
effect of the Equal Pay Act renders it an invalid
exercise of congressional authority under sec. 5
of the Fourteenth Amendment because, like the
ADEA, it 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." City of
Boerne, 521 U.S. at 532. However, unlike the
ADEA, which "impose[d] substantially higher
burdens on state employers" than the
Constitution, Kimel, 120 S.Ct. at 648, the
remedial regime of the Equal Pay Act is less
indiscriminate in scope than the ADEA. In passing
the Equal Pay Act, Congress did not prohibit all
wage practices that result in a disparate impact
upon the sexes, nor did it provide for liability
upon a mere showing of unequal pay. See EEOC v.
Francis W. Parker Sch., 41 F.3d 1073, 1077 (7th
Cir. 1994) (stating that the Equal Pay Act "has
been construed to preclude disparate impact
claims") (citing County of Wash. v. Gunther, 452
U.S. 161, 170-71 (1981)); see also Marshall v.
City of Sheboygan, 577 F.2d 1, 4 (7th Cir. 1978)
(stating that Congress’ purpose in enacting the
Equal Pay Act was not to prohibit all disparities
in pay between men and women, but rather to
"eliminate ’discrimination on account of sex in
the payment of wages.’") (quoting Preamble, Equal
Pay Act, Pub. L. No. 88-38, 77 Stat. 56). Rather,
an examination of the purpose of the Equal Pay
Act, and an evaluation of its remedial scheme,
demonstrate that the Act is targeted at the same
kind of discrimination forbidden by the
Constitution.

      In comparing the provisions of the ADEA
disapproved in Kimel, and the remedial scheme of
the Equal Pay Act, perhaps the most significant
difference between the two statutes is in the
exemptions from liability provided to employers
once a prima facie case of discrimination has
been made. In Kimel, the Supreme Court stated
that, despite the narrowly-construed "bona fide
occupational qualification" defense from
liability under the ADEA, "the Act’s substantive
requirements nevertheless remain at a level akin
to our heightened scrutiny cases under the Equal
Protection Clause." Kimel, 120 S.Ct. at 648. In
contrast, by providing a broad exemption from
liability under the Equal Pay Act for any
employer who can provide a neutral explanation
for a disparity in pay, Congress has effectively
targeted employers who intentionally discriminate
against women. See Gunther, 452 U.S. at 170
(stating that "[t]he fourth affirmative defense
of the Equal Pay Act . . . was designed . . . to
confine the application of the Act to wage
differentials attributable to sex
discrimination"); see also Feeney, 442 U.S. at
275 (stating that where an action "could not be
plausibly explained on a neutral ground, impact
itself would signal that the real classification
made . . . was in fact not neutral"). In other
words, the broad exemption from liability in the
Equal Pay Act for wage differentials based on
"any other factor other than sex," 29 U.S.C. sec.
206(d)(iv), indicates that the Act is intended to
address the same kind of "purposeful [gender]
discrimination," Feeney, 442 U.S. at 274,
prohibited by the Constitution.

      That the Equal Pay Act is primarily a response
to the problem of unconstitutional wage
discrimination against women is made clear by a
comparison of the Act’s remedial provisions with
those of several recently invalidated statutes.
As we noted in Erickson, one of the central
problems with the ADEA identified in Kimel is
that "[m]ost age discrimination is rational, and
therefore constitutional, yet the Act forbids
it." Erickson, 207 F.3d at 948. Having identified
this as one of the "principal propositions"of
Kimel, id., we then went on to reject individual
suits against the States under Title I of the
ADA, in part because the disparate impact and
mandatory accommodation rules in the statute were
too far "outside the boundaries of constitutional
discourse." Id. at 951. Prior to Kimel, the
Supreme Court used similar reasoning in holding
that the Patent and Plant Variety Protection
Remedy Clarification Act ("Patent Remedy Act"),
Pub. L. No. 102-560, 106 Stat. 4230 (1992), which
authorized damage claims against States for
patent infringement, was not a valid exercise of
congressional authority under sec. 5. See Florida
Prepaid, 119 S.Ct. at 2210-11. According to the
Supreme Court, because the Due Process Clause
only forbids patent infringement by States when
it is intentional and when state tort law does
not provide a remedy, the application of the
Patent Remedy Act to "[a]n unlimited range of
state conduct" was beyond the scope of Congress’
powers under sec. 5 of the Fourteenth Amendment.
Id. at 2210.

      In contrast to the statutes at issue in Kimel,
Florida Prepaid, and Erickson, the Equal Pay Act
is not aimed at a kind of discrimination (like
age or disability) that receives rational basis
review. Under the Constitution, gender-based
classifications are afforded heightened scrutiny.
See J.E.B. v. Alabama, 511 U.S. 127, 136 (1994).
Once an individual is able to establish the
existence of a gender-based distinction,
"[p]arties who seek to defend gender-based
government action must demonstrate an
’exceedingly persuasive justification’ for that
action." United States v. Virginia, 518 U.S. 515,
531 (1996) (citation omitted); see also
Mississippi Univ. for Women v. Hogan, 458 U.S.
718, 724 (1982) (holding that a gender
classification must serve "important governmental
objectives" and that "the discriminatory means
employed [must be] substantially related to the
achievement of those objectives") (internal
quotations omitted). In many ways, the
requirement that parties show an "exceedingly
persuasive justification" for gender-based
classifications is more demanding than the Equal
Pay Act’s provision allowing a party to avoid
liability under the statute if they can
demonstrate that the established wage disparity
is based on something other than sex. Because the
Constitution demands an "exceedingly persuasive
justification" for gender discrimination, while
the Equal Pay Act only requires an employer to
offer some legitimate reason for a wage disparity
other than sex, in the great majority of cases
the Equal Pay Act does not subject employers to
liability in situations where the Constitution
does not.

      The fact that the Equal Pay Act prohibits
little constitutional conduct is significant, but
the defendants contend that we must also consider
the adequacy of the legislative findings
supporting the application of the Act to the
States. According to the defendants, the
legislative findings underlying the Equal Pay Act
address only the problem of discrimination in
private industry, and therefore do not justify
the application of the Equal Pay Act to public
employees. Although we recognize that a review of
the legislative record can be an instructive
means of distinguishing appropriate remedial
action from an impermissible substantive change
in legal rights, see id., we want to emphasize
that a "lack of support [in the legislative
record] is not determinative of the sec. 5
inquiry." Kimel, 120 S.Ct. at 649; see also
Florida Prepaid, 119 S.Ct. at 2210; City of
Boerne, 521 U.S. at 531-32. This observation is
particularly relevant in the context of the Equal
Pay Act, where the value of congressional
findings is greatly diminished by the fact that
the Act prohibits very little constitutional
conduct, see City of Boerne, 521 U.S. at 533
(stating that the kind of limitations reflected
in the legislative findings inquiry "tend to
ensure Congress’ means are proportionate to ends
legitimate under sec. 5" in circumstances where
"a congressional enactment pervasively prohibits
constitutional state action") (emphasis added),
and where the historical record clearly
demonstrates that gender discrimination is a
problem that is national in scope.

      In considering the validity of congressional
action under sec. 5 of the Fourteenth Amendment,
"[t]he ultimate question [is] not whether
Congress created a sufficient legislative record,
but rather whether, given all of the information
before the Court, it appears that the statute in
question can appropriately be characterized as
legitimate remedial legislation." Kilcullen v.
New York Dep’t of Labor, 205 F.3d 77, 81 (2d Cir.
2000). While it is true that the legislative
record of the Equal Pay Act itself is devoid of
any explicit findings as to the problem of gender
discrimination by the States, see Hundertmark v.
State of Fl. Dep’t of Transp., 205 F.3d 1272,
1276 (11th Cir. 2000), the defendants do not
contest the adequacy of the legislative record
regarding wage discrimination outside the public
sector. Moreover, by the time the Equal Pay Act
was extended to the States, Congress had
developed a clear understanding of the problem of
gender discrimination on the part of States
through its passage of legislation such as the
Education Amendments of 1972, Pub. L. No. 92-318,
tit. IX, 86 Stat. 373 (1972), and its extension
of Title VII to state and local employers in the
Equal Employment Opportunity Act of 1972, Pub. L.
No. 92-261, sec. 2, 86 Stat. 103 (1972). See
Fullilove v. Klutznick, 448 U.S. 448, 503 (1980)
(Powell, J., concurring) ("After Congress has
legislated repeatedly in an area of national
concern, its Members gain experience that may
reduce the need for fresh hearings or prolonged
debate when Congress again considers action in
that area."). We believe that this evidence is
sufficient to support the limited action taken by
Congress in its passage of the Equal Pay Act,
particularly given the well-documented history of
gender discrimination in this Nation, a history
that is embodied in the Supreme Court’s own
jurisprudence. See Virginia, 518 U.S. at 531
(stating that "skeptical scrutiny of official
action denying rights or opportunities based on
sex responds to volumes of history"); J.E.B., 511
U.S. at 136 (stating that "’our Nation has had a
long and unfortunate history of sex
discrimination.’") (quoting Frontiero v.
Richardson, 411 U.S. 677, 684 (1973)); see also
Crawford v. Davis, 109 F.3d 1281, 1283 (8th Cir.
1997) (arguing that it would be difficult "to
understand how a statute enacted specifically to
combat [gender] discrimination could fall outside
the authority granted to Congress by sec. 5").

      After examining the remedial scheme of the
Equal Pay Act and the legislative history
surrounding its enactment, we conclude that
Congress validly exercised its authority under
sec. 5 of the Fourteenth Amendment when it
extended the Equal Pay Act to cover wage
discrimination on the part of state employers.
Our conclusion in this regard is bolstered both
by the Supreme Court’s own distinction in Kimel
between age and gender, see Kimel, 120 S.Ct. at
645 ("Age classifications, unlike governmental
conduct based on race or gender, cannot be
characterized as ’so seldom relevant to the
achievement of any legitimate state interest that
laws grounded in such considerations are deemed
to reflect prejudice and antipathy.’") (quoting
Cleburne, 473 U.S. at 440), and by our
understanding of the purposes of the Equal Pay
Act. Congress enacted the Equal Pay Act in an
attempt "to remedy . . . the fact that the wage
structure of many segments of American industry
has been based on an ancient but outmoded belief
that a man, because of his role in society,
should be paid more than a woman even though his
duties are the same." Corning Glass, 417 U.S. at
195 (citation and internal quotation omitted).
Significantly, it is precisely these kinds of
classifications--those based on outdated and
inappropriate assumptions about a woman’s place
in society--at which the protections of the
Fourteenth Amendment are also aimed. Because we
conclude that the Equal Pay Act is a piece of
"remedial or preventive legislation aimed at
securing the protections of the Fourteenth
Amendment," Florida Prepaid, 119 S.Ct. at 2207,
we hold that the defendants cannot assert the
Eleventh Amendment as a defense to the
plaintiffs’ Equal Pay Act claim./4

B.
      The defendants also contend that the district
court erred in determining that Congress validly
abrogated the States’ Eleventh Amendment immunity
under sec. 5 of the Fourteenth Amendment when it
extended the application of Title VII to the
States. In our original consideration of this
claim on direct appeal, we noted that this Court
has already held the extension of Title VII to
state employers to be a valid exercise of
Congress’ sec. 5 authority. See Liberles v.
County of Cook, 709 F.2d 1122, 1135 (7th Cir.
1983); United States v. City of Chicago, 573 F.2d
416, 423 (7th Cir. 1978) (holding that Congress’
extension of Title VII’s protections to public
employees was "clearly rationally related to and
consistent with ’the letter and spirit’ of the
Fourteenth Amendment"). We then held that the
defendants had waived this argument, and
consequently any challenge to our existing
precedent, by failing to adequately develop it
before the district court. See Varner, 150 F.3d
at 717 n.14 (quoting United States v. Berkowitz,
927 F.2d 1376, 1384 (7th Cir. 1991)) ("We
repeatedly have made clear that perfunctory and
undeveloped arguments . . . are waived (even
where those arguments raise constitutional
issues)."). Because we do not believe that
anything in the Supreme Court’s remand order
necessitates a new analysis of this question, we
again hold that the defendants failed to raise
their Title VII claim sufficiently before the
district court, and have therefore waived that
argument for purposes of appeal.

III.   Conclusion

      Having found that the extension of the Equal
Pay Act to the States was a valid exercise of
congressional authority under sec. 5 of the
Fourteenth Amendment, and having determined that
the defendants waived their sec. 5 challenge to
the plaintiffs’ Title VII claims, we AFFIRM the
decision of the district court.



/1 The defendants no longer dispute that Congress
unequivocally expressed its intent to abrogate
the States’ Eleventh Amendment immunity in the
Equal Pay Act. Furthermore, the Supreme Court
addressed this issue in Kimel when it stated that
the enforcement provisions set forth in 29 U.S.C.
sec. 216(b), which authorizes private suits to
enforce both the ADEA and the Equal Pay Act,
"clearly demonstrate Congress’ intent to subject
the States to suit for money damages at the hands
of individual employees." Kimel, 120 S.Ct. at
640. We therefore do not address the defendants’
original claim that the Equal Pay Act does not
contain an unmistakable expression of Congress’
intent to abrogate States’ Eleventh Amendment
rights.

/2 Although the defendants do not renew their
argument that the Fair Labor Standards Act
("FLSA"), 29 U.S.C. sec. 201 et seq., which
contains the Equal Pay Act, was an invalid
attempt to abrogate the States’ sovereign
immunity under the Commerce Clause, we want to
reaffirm our original holding rejecting that
claim. Although Congress explicitly stated that
the FLSA constituted an exercise of congressional
power under the Commerce Clause, see 29 U.S.C.
sec. 202(b), we do not believe that Congress
expressly relied on its Commerce Clause power
when it extended the FLSA, and consequently the
Equal Pay Act, to the States, see Timmer v.
Michigan Dep’t of Commerce, 104 F.3d 833, 838-39
n.7 (6th Cir. 1996) ("We believe that th[e]
legislative history [of the Equal Pay Act] falls
far short of constituting an ’express statement’
of congressional intent."), or that any reliance
on its commerce power was intended to be
exclusive, see Mills v. Maine, 118 F.3d 37, 44
(1st Cir. 1997) ("[O]ne cannot read Congress’
statement regarding the [Equal Pay] Act’s
validity under the Commerce Clause to indicate
that Congress intended to exclude other
applicable constitutional bases for the Act.")
(quotations and alteration omitted).

      Because we remain unconvinced that Congress
clearly expressed an intention to proceed under
its commerce power when it applied the Equal Pay
Act to the States, the key "inquiry is whether
the objectives of the legislation are within
Congress’ power under [sec. of the Fourteenth
Amendment]." EEOC v. Elrod, 674 F.2d 601, 608
(7th Cir. 1982). Under this standard, it is not
difficult to conclude that the objectives of the
Equal Pay Act are within Congress’ powers under
the Fourteenth Amendment. The purpose of the
Equal Pay Act is to prevent arbitrary gender-
based wage disparities, while prohibiting
"arbitrary, discriminatory government conduct .
. . is the very essence of the guarantee of
’equal protection of the laws’ of the Fourteenth
Amendment." Id. at 604. We thus conclude that the
Equal Pay Act’s prohibition on discrimination
fits within the objectives of sec. 5 of the
Fourteenth Amendment, and that the Act is an
exercise of congressional power under sec. 5.
This does not mean, however, that Congress’
action in subjecting state employers to the Equal
Pay Act was a valid exercise of its authority
under sec. 5, a subject which is addressed infra.

/3 Although the Equal Pay Act constitutes a separate
act of Congress, it was originally enacted in
1963 as an amendment to the FLSA. In 1974, the
Equal Pay Act was applied to the States by virtue
of an amendment extending the protections of the
FLSA to state employees.

/4 In so holding, we join the other Circuits who
have considered this issue in the context of the
Equal Pay Act. See Kovacevich v. Kent St. Univ.,
No. 98-3678, 2000 WL 1205859 (6th Cir. Aug. 25,
2000); Hundertmark v. Florida Dep’t of Transp.,
205 F.3d 1272 (11th Cir. 2000); O’Sullivan v.
Minnesota, 191 F.3d 965 (8th Cir. 1999); Ussery
v. Louisiana, 150 F.3d 431 (5th Cir. 1998), cert.
dismissed, 526 U.S. 1013 (1999); Timmer v.
Michigan Dep’t of Commerce, 104 F.3d 833 (6th
Cir. 1997); Usery v. Charleston County Sch.
Dist., 558 F.2d 1169 (4th Cir. 1977); Usery v.
Allegheny County Inst. Dist., 544 F.2d 148 (3d
Cir. 1976), cert. denied, 430 U.S. 946 (1977).
