Cite as: 538 U. S. 721 (2003)
Opinion of the Court
ment pervasively prohibits constitutional state action in an effort to remedy or to prevent unconstitutional state action, limitations of this kind tend to ensure Congress' means are proportionate to ends legitimate under § 5' " (quoting City of Boerne, supra, at 532-533)). The FMLA requires only unpaid leave, 29 U. S. C. § 2612(a)(1), and applies only to employees who have worked for the employer for at least one year and provided 1,250 hours of service within the last 12 months, § 2611(2)(A). Employees in high-ranking or sensitive positions are simply ineligible for FMLA leave; of particular importance to the States, the FMLA expressly excludes from coverage state elected officials, their staffs, and appointed policymakers. §§ 2611(2)(B)(i) and (3), 203(e) (2)(C). Employees must give advance notice of foreseeable leave, § 2612(e), and employers may require certification by a health care provider of the need for leave, § 2613. In choosing 12 weeks as the appropriate leave floor, Congress chose "a middle ground, a period long enough to serve 'the needs of families' but not so long that it would upset 'the legitimate interests of employers.' " Ragsdale, supra, at 94 (quoting 29 U. S. C. § 2601(b)).12 Moreover, the cause
12 Congress established 12 weeks as a floor, thus leaving States free to provide their employees with more family-leave time if they so choose. See 29 U. S. C. § 2651(b) ("Nothing in this Act or any amendment made by this Act shall be construed to supersede any provision of any State or local law that provides greater family or medical leave rights than the rights established under this Act or any amendment made by this Act"). The dissent faults Congress for giving States this choice, arguing that the FMLA's terms do not bar States from granting more family-leave time to women than to men. Post, at 756. But Justice Kennedy effectively counters his own argument in his very next breath, recognizing that such gender-based discrimination would "run afoul of the Equal Protection Clause or Title VII." Ibid. In crafting new legislation to remedy unconstitutional state conduct, Congress may certainly rely on and take account of existing laws. Indeed, Congress expressly did so here. See 29 U. S. C. § 2651(a) ("Nothing in this Act or any amendment made by this Act shall be construed to modify or affect any Federal or State law prohibiting discrimination on the basis of . . . sex . . .").
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