748
Kennedy, J., dissenting
with respect to the parenting leave. See Joint Hearing 31 (statement of Meryl Frank) (the Yale Bush study "evaluate[d] the impact of the changing composition of the work-place on families with infants"); id., at 147 (statement of the Washington Council of Lawyers) ("[F]or the first time, child-care responsibilities of both natural and adoptive mothers and fathers will be legislatively protected"). Even if this isolated testimony could support an inference that private sector's gender-based discrimination in the provision of parenting leave was parallel to the behavior by state actors in 1986, the evidence would not be probative of the States' conduct some seven years later with respect to a statutory provision conferring a different benefit. The Court of Appeals admitted as much: "We recognize that a weakness in this evidence as applied to Hibbs' case is that the BLS and Yale Bush Center studies deal only with parental leave, not with leave to care for a sick family member. They thus do not document a widespread pattern of precisely the kind of discrimination that § 2612(a)(1)(C) is intended to prevent." 273 F. 3d 844, 859 (CA9 2001).
The Court's reliance on evidence suggesting States provided men and women with the parenting leave of different length, ante, at 731, and n. 5, suffers from the same flaw. This evidence concerns the Act's grant of parenting leave, §§ 2612(a)(1)(A), (B), and is too attenuated to justify the family leave provision. The Court of Appeals' conclusion to the contrary was based on an assertion that "if states discriminate along gender lines regarding the one kind of leave, then they are likely to do so regarding the other." 273 F. 3d, at 859. The charge that a State has engaged in a pattern of unconstitutional discrimination against its citizens is a most serious one. It must be supported by more than conjecture.
The Court maintains the evidence pertaining to the parenting leave is relevant because both parenting and family leave provisions respond to "the same gender stereotype: that women's family duties trump those of the workplace."
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