730
Opinion of the Court
and we sustained this abrogation in Fitzpatrick. But state gender discrimination did not cease. "[I]t can hardly be doubted that . . . women still face pervasive, although at times more subtle, discrimination . . . in the job market." Frontiero v. Richardson, 411 U. S. 677, 686 (1973). According to evidence that was before Congress when it enacted the FMLA, States continue to rely on invalid gender stereotypes in the employment context, specifically in the administration of leave benefits. Reliance on such stereotypes cannot justify the States' gender discrimination in this area. Virginia, supra, at 533. The long and extensive history of sex discrimination prompted us to hold that measures that differentiate on the basis of gender warrant heightened scrutiny; here, as in Fitzpatrick, the persistence of such unconstitutional discrimination by the States justifies Congress' passage of prophylactic § 5 legislation.
As the FMLA's legislative record reflects, a 1990 Bureau of Labor Statistics (BLS) survey stated that 37 percent of surveyed private-sector employees were covered by maternity leave policies, while only 18 percent were covered by paternity leave policies. S. Rep. No. 103-3, pp. 14-15 (1993). The corresponding numbers from a similar BLS survey the previous year were 33 percent and 16 percent, respectively. Ibid. While these data show an increase in the percentage of employees eligible for such leave, they also show a widening of the gender gap during the same period. Thus, stereotype-based beliefs about the allocation of family duties remained firmly rooted, and employers' reliance on them in establishing discriminatory leave policies remained widespread.3
3 While this and other material described leave policies in the private sector, a 50-state survey also before Congress demonstrated that "[t]he proportion and construction of leave policies available to public sector employees differs little from those offered private sector employees." The Parental and Medical Leave Act of 1986: Joint Hearing before the Subcommittee on Labor-Management Relations and the Subcommittee on Labor
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