750
Kennedy, J., dissenting
port the charge of disparate impact, but not a charge that States have engaged in a pattern of intentional discrimination prohibited by the Fourteenth Amendment. Garrett, 531 U. S., at 372-373 (citing Washington v. Davis, 426 U. S. 229, 239 (1976)).
The federal-state equivalence upon which the Court places such emphasis is a deficient rationale at an even more fundamental level, however; for the States appear to have been ahead of Congress in providing gender-neutral family leave benefits. Thirty States, the District of Columbia, and Puerto Rico had adopted some form of family-care leave in the years preceding the Act's adoption. The reports in both Houses of Congress noted this fact. H. R. Rep. No. 103-8, at 32-33; S. Rep. No. 103-3, pp. 20-21 (1993); see also Brief for State of Alabama et al. as Amici Curiae 18-22. Congressional hearings noted that the provision of family leave was "an issue which has picked up tremendous momentum in the States, with some 21 of them having some form of family or medical leave on the books." The Family and Medical Leave Act of 1991: Hearing on H. R. 2 before the Subcommittee on Labor-Management Relations of the House Committee on Education and Labor, 102d Cong., 1st Sess., p. 4 (1991) (statement of Rep. Marge Roukema). Congress relied on the experience of the States in designing the national leave policy to be cost effective and gender neutral. S. Rep. No. 103-3, at 12-14; The Parental and Medical Leave Act of 1987: Hearings on S. 249 before the Subcommittee on Children, Family, Drugs and Alcoholism of the Senate Committee on Labor and Human Resources, 100th Cong., 1st Sess., pt. 2, pp. 194-195, 533-534 (1987). Congress also acknowledged that many States had implemented leave policies more generous than those envisioned by the Act. H. R. Rep. No. 103-8, pt. 1, at 50; S. Rep. No. 103-3, at 38. At the very least, the history of the Act suggests States were in the process of solving any existing gender-based discrimination in the provision of family leave.
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