Cite as: 538 U. S. 721 (2003)
Kennedy, J., dissenting
Ante, at 732, n. 5. This sets the contours of the inquiry at too high a level of abstraction. The question is not whether the family leave provision is a congruent and proportional response to general gender-based stereotypes in employment which "ha[ve] historically produced discrimination in the hiring and promotion of women," ibid.; the question is whether it is a proper remedy to an alleged pattern of unconstitutional discrimination by States in the grant of family leave. The evidence of gender-based stereotypes is too remote to support the required showing.
The Court next argues that "even where state laws and policies were not facially discriminatory, they were applied in discriminatory ways." Ante, at 732. This charge is based on an allegation that many States did not guarantee the right to family leave by statute, instead leaving the decision up to individual employers, who could subject employees to " 'discretionary and possibly unequal treatment.' " Ibid. (quoting H. R. Rep. No. 103-8, pt. 2, pp. 10-11 (1993)). The study from which the Court derives this conclusion examined "the parental leave policies of Federal executive branch agencies," H. R. Rep. No. 103-8, at 10, not those of the States. The study explicitly stated that its conclusions concerned federal employees: " '[I]n the absence of a national minimum standard for granting leave for parental purposes, the authority to grant leave and to arrange the length of that leave rests with individual supervisors, leaving Federal employees open to discretionary and possibly unequal treatment.' " Id., at 10-11. A history of discrimination on the part of the Federal Government may, in some situations, support an inference of similar conduct by the States, but the Court does not explain why the inference is justified here.
Even if there were evidence that individual state employers, in the absence of clear statutory guidelines, discriminated in the administration of leave benefits, this circumstance alone would not support a finding of a state-sponsored pattern of discrimination. The evidence could perhaps sup-
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