Cite as: 538 U. S. 721 (2003)
Kennedy, J., dissenting
U. S., at 368 ("Congress' § 5 authority is appropriately exercised only in response to state transgressions").
The Court seeks to connect the evidence of private discrimination to an alleged pattern of unconstitutional behavior by States through inferences drawn from two sources. The first is testimony by Meryl Frank, Director of the Infant Care Leave Project, Yale Bush Center in Child Development and Social Policy, who surveyed both private and public employers in all 50 States and found little variation between the leave policies in the two sectors. Ante, at 730-731, n. 3 (citing The Parental and Medical Leave Act of 1986: Joint Hearing before the Subcommittee on Labor-Management Relations and the Subcommittee on Labor Standards of the House Committee on Education and Labor, 99th Cong., 2d Sess., 33 (1986) (hereinafter Joint Hearing)). The second is a view expressed by the Washington Council of Lawyers that even " '[w]here child-care leave policies do exist, men, both in the public and private sectors, receive notoriously discriminatory treatment in their requests for such leave.' " Ante, at 731 (quoting Joint Hearing 147) (emphasis added by the Court).
Both statements were made during the hearings on the proposed 1986 national leave legislation, and so preceded the Act by seven years. The 1986 bill, which was not enacted, differed in an important respect from the legislation Congress eventually passed. That proposal sought to provide parenting leave, not leave to care for another ill family member. Compare H. R. 4300, 99th Cong., 2d Sess., §§ 102(3), 103(a) (1986), with 29 U. S. C. § 2612(a)(1)(C). See also L. Gladstone, Congressional Research Service Issue Brief, Family and Medical Leave Legislation, pp. 4-5, 10 (Oct. 26, 1995); Tr. of Oral Arg. 43 (statement of counsel for the United States that "the first time that the family leave was introduced and the first time the section (5) authority was invoked was in H. R. 925," which was proposed in 1987). The testimony on which the Court relies concerned the discrimination
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