Cite as: 538 U. S. 721 (2003)
Kennedy, J., dissenting
more caution than the Court shows in holding § 2612(a)(1)(C) is somehow a congruent and proportional remedy to an identified pattern of discrimination.
The Court is unable to show that States have engaged in a pattern of unlawful conduct which warrants the remedy of opening state treasuries to private suits. The inability to adduce evidence of alleged discrimination, coupled with the inescapable fact that the federal scheme is not a remedy but a benefit program, demonstrates the lack of the requisite link between any problem Congress has identified and the program it mandated.
In examining whether Congress was addressing a demonstrated "pattern of unconstitutional employment discrimination by the States," the Court gives superficial treatment to the requirement that we "identify with some precision the scope of the constitutional right at issue." Garrett, supra, at 365, 368. The Court suggests the issue is "the right to be free from gender-based discrimination in the workplace," ante, at 728, and then it embarks on a survey of our precedents speaking to "[t]he history of the many state laws limiting women's employment opportunities," ante, at 729. All would agree that women historically have been subjected to conditions in which their employment opportunities are more limited than those available to men. As the Court acknowledges, however, Congress responded to this problem by abrogating States' sovereign immunity in Title VII of the Civil Rights Act of 1964, 42 U. S. C. § 2000e-2(a). Ante, at 729; see also Fitzpatrick v. Bitzer, 427 U. S. 445 (1976). The provision now before us, 29 U. S. C. § 2612(a)(1)(C), has a different aim than Title VII. It seeks to ensure that eligible employees, irrespective of gender, can take a minimum amount of leave time to care for an ill relative.
The relevant question, as the Court seems to acknowledge, is whether, notwithstanding the passage of Title VII and similar state legislation, the States continued to engage in widespread discrimination on the basis of gender in the pro-
745
Page: Index Previous 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 NextLast modified: October 4, 2007