746
Kennedy, J., dissenting
vision of family leave benefits. Ante, at 730. If such a pattern were shown, the Eleventh Amendment would not bar Congress from devising a congruent and proportional remedy. The evidence to substantiate this charge must be far more specific, however, than a simple recitation of a general history of employment discrimination against women. When the federal statute seeks to abrogate state sovereign immunity, the Court should be more careful to insist on adherence to the analytic requirements set forth in its own precedents. Persisting overall effects of gender-based discrimination at the workplace must not be ignored; but simply noting the problem is not a substitute for evidence which identifies some real discrimination the family leave rules are designed to prevent.
Respondents fail to make the requisite showing. The Act's findings of purpose are devoid of any discussion of the relevant evidence. See Lizzi v. Alexander, 255 F. 3d 128, 135 (CA4 2001) ("In making [its] finding of purpose, Congress did not identify, as it is required to do, any pattern of gender discrimination by the states with respect to the granting of employment leave for the purpose of providing family or medical care"); see also Chittister v. Department of Community and Econ. Dev., 226 F. 3d 223, 228-229 (CA3 2000) ("Notably absent is any finding concerning the existence, much less the prevalence, in public employment of personal sick leave practices that amounted to intentional gender discrimination in violation of the Equal Protection Clause").
As the Court seems to recognize, the evidence considered by Congress concerned discriminatory practices of the private sector, not those of state employers. Ante, at 730-731, n. 3. The statistical information compiled by the Bureau of Labor Statistics (BLS), which are the only factual findings the Court cites, surveyed only private employers. Ante, at 730. While the evidence of discrimination by private entities may be relevant, it does not, by itself, justify the abrogation of States' sovereign immunity. Garrett, 531
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