Varner, Iris I. v. IL State University

In the

United States Court of Appeals

For the Seventh Circuit

No. 97-3253

Dr. Iris I. Varner, et al.,

Plaintiffs-Appellees,

and

United States of America,

Intervening Appellee,

v.

Illinois State University, et al.,

Defendants-Appellants.

Appeal from the United States District Court

for the Central District of Illinois, Peoria Division.

No. 95 C 1355--Michael M. Mihm, Judge.

On Remand from the United States Supreme Court

No. 98-1117

Argued May 31, 2000--Decided September 6, 2000

Before Flaum, Chief Judge, and Bauer and

Harlington Wood, Jr., Circuit Judges.

Flaum, Chief Judge. The plaintiffs comprise a

class of tenured and tenure-track female faculty

members at Illinois State University (the

"University") who contend that the University

pays female professors less money than their male

counterparts. In 1995, the plaintiffs filed suit

seeking both monetary and injunctive relief

against the University and various of its

officers and agents (collectively the

"defendants"), alleging violations of the Equal

Pay Act, 29 U.S.C. sec. 206(d), and Title VII, 42

U.S.C. sec. 2000e et seq. The University, which

the plaintiffs concede is a state entity, moved

to dismiss the Equal Pay Act claim, as well as

the claim for compensatory relief under Title

VII, arguing that the Eleventh Amendment bars

federal jurisdiction over these claims. The

district court denied the defendants’ Eleventh

Amendment defense, and the defendants appealed

that decision to this Court under the collateral

order doctrine, see Puerto Rico Aqueduct & Sewer

Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 145

(1993) (holding that the collateral order

doctrine allows for immediate appellate review of

the denial of an Eleventh Amendment immunity

claim).

In our initial consideration of this case, we

affirmed the district court in all respects,

finding that Congress clearly intended to

abrogate the States’ Eleventh Amendment immunity

through its passage of the Equal Pay Act, and

that this abrogation was a valid exercise of

congressional authority under sec. 5 of the

Fourteenth Amendment. See Varner v. Illinois St.

Univ., 150 F.3d 706, 717 (7th Cir. 1998),

vacated, 120 S.Ct. 928 (2000). Although we

further determined that Title VII contained an

explicit abrogation of the States’ Eleventh

Amendment immunity, we did not consider whether

that abrogation was a valid exercise of

congressional authority because we held that the

defendants had waived that issue by failing to

present it sufficiently to the district court.

See id. at 717 n.14. The defendants appealed our

rejection of their Eleventh Amendment defense to

the United States Supreme Court.

On writ of certiorari to the Supreme Court, our

original opinion affirming the district court was

vacated and remanded, see Illinois St. Univ. v.

Varner, 120 S.Ct. 928 (2000), for further

consideration in light of the Court’s intervening

decision in Kimel v. Florida Bd. of Regents, 120

S.Ct. 631 (2000) (holding that the Age

Discrimination in Employment Act ("ADEA"), 29

U.S.C. sec. 621 et seq., was not a valid

abrogation of the States’ sovereign immunity).

After considering the defendants’ assertion of

Eleventh Amendment immunity against the backdrop

of the Supreme Court’s decision in Kimel, it

remains our conclusion that the district court

properly rejected the defendants’ claim of

sovereign immunity and denied their motion to

dismiss. Consequently, we affirm the decision of

the district court.

I. Analysis

The Eleventh Amendment provides that, "The

Judicial power of the United States shall not be

construed to extend to any suit in law or equity,

commenced or prosecuted against one of the United

States by Citizens of another State, or by

Citizens of Subjects of any Foreign State." U.S.

Const. amend. XI. While the Eleventh Amendment

appears to restrict only the federal courts’

Article III diversity jurisdiction, the Amendment

has long been understood "to stand not so much

for what it says, but for the presupposition of

our constitutional structure which it confirms."

Blatchford v. Native Village of Noatak, 501 U.S.

775, 779 (1991). Under the Eleventh Amendment,

each State in our federal system remains a

sovereign entity and may not be sued by an

individual without its consent, see Seminole

Tribe of Florida v. Florida, 517 U.S. 44, 54

(1996) (citing Hans v. Louisiana, 134 U.S. 1, 13

(1890)).

Although the Eleventh Amendment grants

unconsenting States immunity from suit in federal

court, that immunity is not absolute. See College

Savings Bank v. Florida Prepaid Postsecondary

Educ. Expense Bd., 119 S.Ct. 2219, 2223 (1999);

see also Fitzpatrick v. Bitzer, 427 U.S. 445, 456

(1976) ("[T]he Eleventh Amendment, and the

principles of state sovereignty which it

embodies, . . . are necessarily limited by the

enforcement provisions of sec. 5 of the

Fourteenth Amendment."). Congress may

constitutionally abrogate the States’ Eleventh

Amendment immunity if two criteria are satisfied:

(1) Congress must unequivocally express its

intent to abrogate the States’ sovereign

immunity; and (2) in abrogating that immunity,

Congress must act pursuant to a valid exercise of

power. See Seminole Tribe, 517 U.S. at 55.

Because the defendants no longer contest

Congress’ intent to abrogate the States’ Eleventh

Amendment immunity in this case, we need only

consider the question of whether the abrogations

of sovereign immunity contained in the statutes

at issue are valid exercises of congressional

power under sec. 5 of the Fourteenth

Amendment./1

In City of Boerne v. Flores, 521 U.S. 507

(1997), the Supreme Court explained that

"[l]egislation which deters or remedies

constitutional violations can fall within the

sweep of Congress’ enforcement power even if in

the process it prohibits conduct which is not

itself unconstitutional." Id. at 518; see also

Kimel, 120 S.Ct. at 644 ("Congress’ power ’to

enforce’ the [Fourteenth] Amendment includes the

authority both to remedy and to deter violation

of rights guaranteed thereunder by prohibiting a

somewhat broader swath of conduct, including that

which is not itself forbidden by the Amendment’s

text."). At the same time, the City of Boerne

decision made clear that this affirmative grant

of congressional power is limited to "enforcing"

the Amendment’s restrictions on the States and

does not extend to determining what constitutes

a constitutional violation. City of Boerne, 521

U.S. at 519. Recognizing that Congress must have

latitude in determining where the line lies

between appropriate remedial legislation and a

substantive redefinition of a constitutional

right, the Court held that "[t]here must be a

congruence and proportionality between the injury

to be prevented or remedied and the means adopted

to that end." Id. at 520.

Because the requirements of congruence and

proportionality mark the boundaries of Congress’

Fourteenth Amendment enforcement power, and

because Congress lacks the power to abrogate the

States’ sovereign immunity under Article I of the

Constitution,/2 see Seminole Tribe, 517 U.S. at

72-73, congressional legislation that creates a

cause of action against the States must satisfy

the congruence and proportionality test. In

Kimel, 120 S.Ct. 631, the Supreme Court used the

congruence and proportionality test to determine

whether the ADEA validly abrogated the States’

sovereign immunity. The ADEA makes it unlawful

for an employer, including a State, "to fail or

refuse to hire or to discharge any individual or

otherwise discriminate against any individual .

. . because of such individual’s age," 29 U.S.C.

sec. 623(a)(1). The Kimel Court held that,

although the ADEA contained a clear statement of

Congress’ intent to abrogate the States’ Eleventh

Amendment immunity, that abrogation exceeded

Congress’ Fourteenth Amendment enforcement power.

Kimel, 120 S.Ct. at 640-50.

Applying the congruence and proportionality

test, the Kimel Court relied on a number of

factors in concluding that Congress exceeded its

authority in creating an individual cause of

action for money damages against the States under

the ADEA. Because age is not a suspect

classification under the Equal Protection Clause,

States may discriminate on the basis of age

without offending the Fourteenth Amendment if the

challenged age classification is rationally

related to a legitimate state interest. The Court

found that the ADEA, "through its broad

restriction on the use of age as a discriminating

factor, prohibits substantially more state

employment decisions and practices than would

likely be held unconstitutional under the

applicable [constitutional] standard." Id. at

647. Furthermore, the Court found little in the

ADEA’s legislative record to confirm that age

discrimination by the States was a widespread

problem that demanded a strong remedy. See id. at

648-49. "In light of the indiscriminate scope of

the Act’s substantive requirements, and the lack

of evidence of widespread and unconstitutional

age discrimination by the States," the Court held

that the ADEA’s abrogation of the States’

Eleventh Amendment immunity was not a valid

exercise of Congress’ enforcement power under

sec. 5 of the Fourteenth Amendment. Id. at 650.

This Court has recently applied the congruence

and proportionality test in the context of

individual suits against the States under the

Americans With Disabilities Act ("ADA"), 42

U.S.C. sec. 12111 et seq. In Erickson v. Board of

Governors of State Colleges and Universities for

Northeastern Ill. Univ., 207 F.3d 945 (7th Cir.

2000), we held that Title I of the ADA, 42 U.S.C.

sec.sec. 12111-12117, which prohibits

discrimination in employment based on disability

and requires employers to reasonably accommodate

disabled individuals, was an invalid exercise of

congressional authority under sec. 5 of the

Fourteenth Amendment. See also Stevens v.

Illinois Dep’t of Transp., 210 F.3d 732 (7th Cir.

2000). In reaching this conclusion, we determined

that "the disparate-impact and mandatory-

accommodation rules found in the ADA" far

exceeded the constitutional protections provided

by the Equal Protection Clause. Erickson, 207

F.3d at 951; see also Stevens, 210 F.3d at 738.

Furthermore, we concluded that these provisions

could not be sustained as "reasonable

prophylactic legislation." Erickson, 207 F.3d at

951-52; see also Stevens, 210 F.3d at 740-41.

Underlying this holding was our understanding

that Congress could not subject disability

discrimination, which receives only rational

basis review under the Constitution, see Cleburne

v. Cleburne Living Center, 473 U.S. 432, 442-46

(1985), to more searching scrutiny. See Erickson,

207 F.3d at 951 (holding that the ADA "exceed[s]

the sec. 5 power . . . at least to the extent it

extends beyond remedies for irrational

discrimination"). In light of these principles

drawn from prior precedent, we now review the

defendants’ challenge to the validity of

Congress’ abrogation of the States’ Eleventh

Amendment immunity in the Equal Pay Act de novo,

see EEOC v. AIC Sec. Investigations, Ltd., 55

F.3d 1276, 1279 (7th Cir. 1995) (stating that

pure claims of law are reviewed de novo).

A. The Equal Pay Act

The Equal Pay Act prohibits discrimination in

wages based on gender./3 In order to prevail on

an Equal Pay Act claim, an employee must first

demonstrate unequal pay for "equal work on jobs

the performance of which requires equal skill,

effort, and responsibility, and which are

performed under similar working conditions." 29

U.S.C. sec. 206(d)(1); see Corning Glass Works v.

Brennan, 417 U.S. 188, 195 (1974). Once an

employee has met her burden of showing unequal

pay for equal work, an employer may avoid

liability under the Act by proving that the wage

disparity exists "pursuant to (i) a seniority

system; (ii) a merit system; (iii) a system which

measures earnings by quantity or quality of

production; or (iv) a differential based on any

other factor other than sex." 29 U.S.C. sec. 206

(d)(1); see Corning Glass, 417 U.S. at 196. In

effect, the provisions of the Equal Pay Act

establish a rebuttable presumption of sex

discrimination such that once an employee has

demonstrated that an employer pays members of one

sex more than members of the opposite sex, the

burden shifts to the employer to offer a gender-

neutral justification for that wage differential.

See id. at 196; Fallon v. Illinois, 882 F.2d

1206, 1211 (7th Cir. 1989).

Because a prima facie case under the Equal Pay

Act requires only an initial showing of a wage

differential between the sexes, the Act’s

remedial provisions do not perfectly mirror the

Constitution’s prohibition on gender

discrimination. Under the Equal Pay Act, an

employer is potentially subject to liability

without a showing of discriminatory intent. See

Stopka v. Alliance of Am. Insurers, 141 F.3d 681,

685 (7th Cir. 1998) ("The E[qual] P[ay] A[ct]

does not require proof of discriminatory

intent."); see also Berry v. Board of Supervisors

of LSU, 715 F.2d 971, 975 (5th Cir. 1983)

(holding that the mere allegation that a female

professor was paid less than a male colleague for

equal work stated a claim under the Equal Pay

Act). In contrast, in order to make out a claim

of gender discrimination under the Constitution,

an individual must demonstrate an intent to

discriminate on the part of the employer. See

Personnel Administrator of Mass. v. Feeney, 442

U.S. 256, 274 (1979) (stating that it is

"purposeful [gender] discrimination . . . that

offends the Constitution") (internal quotation

omitted); Washington v. Davis, 426 U.S. 229, 238-

39 (1976). Because the Equal Pay Act allows a

finding of gender discrimination absent a showing

of discriminatory intent, while the Constitution

does not, the effect of the Equal Pay Act’s

burden-shifting remedial scheme is to prohibit at

least some conduct that is constitutional.

The plaintiffs concede that the Equal Pay Act

does not preclude the possibility that an

employer will be held liable for conduct that is

not prohibited by the Constitution. However, as

the plaintiffs note, the Supreme Court has made

clear that the mere fact that a statute’s

remedial regime is broader in scope than the

constitutional prohibitions against

discrimination does not mean that the statute is

not a proportional and congruent response to that

problem. See Kimel, 120 S.Ct. at 644 ("Congress’

sec. 5 power is not confined to the enactment of

legislation that merely parrots the precise

wording of the Fourteenth Amendment."); City of

Boerne, 521 U.S. at 518. Section 5 of the

Fourteenth Amendment is a remedial provision, and

Congress has both the power and the discretion to

enforce its guarantees through prohibitions

broader than those contained in the Constitution.

See Kimel, 120 S.Ct. at 644. Furthermore, because

"the line between measures that remedy or prevent

unconstitutional actions and measures that make

a substantive change in the governing law is not

easy to discern, . . . Congress must have wide

latitude in determining where it lies." City of

Boerne, 521 U.S. at 519-20; see also Kimel, 120

S.Ct. at 644 ("[T]he determination whether

purportedly prophylactic legislation constitutes

appropriate remedial legislation, or instead

effects a substantive redefinition of the

Fourteenth Amendment right at issue, is often

difficult."); Katzenbach v. Morgan, 384 U.S. 641,

651 (1966) ("Correctly viewed, sec. 5 is a

positive grant of legislative power authorizing

Congress to exercise its discretion in

determining whether and what legislation is

needed to secure the guarantees of the Fourteenth

Amendment."). The question before us, therefore,

is not whether the remedial provisions of the

Equal Pay Act prohibit some constitutional

conduct. Instead, we must consider whether the

Act can be characterized as a proportional and

congruent response to the problem of

unconstitutional wage discrimination based on

gender.

The defendants contend that the burden-shifting

effect of the Equal Pay Act renders it an invalid

exercise of congressional authority under sec. 5

of the Fourteenth Amendment because, like the

ADEA, it is "so out of proportion to a supposed

remedial or preventive object that it cannot be

understood as responsive to, or designed to

prevent, unconstitutional behavior." City of

Boerne, 521 U.S. at 532. However, unlike the

ADEA, which "impose[d] substantially higher

burdens on state employers" than the

Constitution, Kimel, 120 S.Ct. at 648, the

remedial regime of the Equal Pay Act is less

indiscriminate in scope than the ADEA. In passing

the Equal Pay Act, Congress did not prohibit all

wage practices that result in a disparate impact

upon the sexes, nor did it provide for liability

upon a mere showing of unequal pay. See EEOC v.

Francis W. Parker Sch., 41 F.3d 1073, 1077 (7th

Cir. 1994) (stating that the Equal Pay Act "has

been construed to preclude disparate impact

claims") (citing County of Wash. v. Gunther, 452

U.S. 161, 170-71 (1981)); see also Marshall v.

City of Sheboygan, 577 F.2d 1, 4 (7th Cir. 1978)

(stating that Congress’ purpose in enacting the

Equal Pay Act was not to prohibit all disparities

in pay between men and women, but rather to

"eliminate ’discrimination on account of sex in

the payment of wages.’") (quoting Preamble, Equal

Pay Act, Pub. L. No. 88-38, 77 Stat. 56). Rather,

an examination of the purpose of the Equal Pay

Act, and an evaluation of its remedial scheme,

demonstrate that the Act is targeted at the same

kind of discrimination forbidden by the

Constitution.

In comparing the provisions of the ADEA

disapproved in Kimel, and the remedial scheme of

the Equal Pay Act, perhaps the most significant

difference between the two statutes is in the

exemptions from liability provided to employers

once a prima facie case of discrimination has

been made. In Kimel, the Supreme Court stated

that, despite the narrowly-construed "bona fide

occupational qualification" defense from

liability under the ADEA, "the Act’s substantive

requirements nevertheless remain at a level akin

to our heightened scrutiny cases under the Equal

Protection Clause." Kimel, 120 S.Ct. at 648. In

contrast, by providing a broad exemption from

liability under the Equal Pay Act for any

employer who can provide a neutral explanation

for a disparity in pay, Congress has effectively

targeted employers who intentionally discriminate

against women. See Gunther, 452 U.S. at 170

(stating that "[t]he fourth affirmative defense

of the Equal Pay Act . . . was designed . . . to

confine the application of the Act to wage

differentials attributable to sex

discrimination"); see also Feeney, 442 U.S. at

275 (stating that where an action "could not be

plausibly explained on a neutral ground, impact

itself would signal that the real classification

made . . . was in fact not neutral"). In other

words, the broad exemption from liability in the

Equal Pay Act for wage differentials based on

"any other factor other than sex," 29 U.S.C. sec.

206(d)(iv), indicates that the Act is intended to

address the same kind of "purposeful [gender]

discrimination," Feeney, 442 U.S. at 274,

prohibited by the Constitution.

That the Equal Pay Act is primarily a response

to the problem of unconstitutional wage

discrimination against women is made clear by a

comparison of the Act’s remedial provisions with

those of several recently invalidated statutes.

As we noted in Erickson, one of the central

problems with the ADEA identified in Kimel is

that "[m]ost age discrimination is rational, and

therefore constitutional, yet the Act forbids

it." Erickson, 207 F.3d at 948. Having identified

this as one of the "principal propositions"of

Kimel, id., we then went on to reject individual

suits against the States under Title I of the

ADA, in part because the disparate impact and

mandatory accommodation rules in the statute were

too far "outside the boundaries of constitutional

discourse." Id. at 951. Prior to Kimel, the

Supreme Court used similar reasoning in holding

that the Patent and Plant Variety Protection

Remedy Clarification Act ("Patent Remedy Act"),

Pub. L. No. 102-560, 106 Stat. 4230 (1992), which

authorized damage claims against States for

patent infringement, was not a valid exercise of

congressional authority under sec. 5. See Florida

Prepaid, 119 S.Ct. at 2210-11. According to the

Supreme Court, because the Due Process Clause

only forbids patent infringement by States when

it is intentional and when state tort law does

not provide a remedy, the application of the

Patent Remedy Act to "[a]n unlimited range of

state conduct" was beyond the scope of Congress’

powers under sec. 5 of the Fourteenth Amendment.

Id. at 2210.

In contrast to the statutes at issue in Kimel,

Florida Prepaid, and Erickson, the Equal Pay Act

is not aimed at a kind of discrimination (like

age or disability) that receives rational basis

review. Under the Constitution, gender-based

classifications are afforded heightened scrutiny.

See J.E.B. v. Alabama, 511 U.S. 127, 136 (1994).

Once an individual is able to establish the

existence of a gender-based distinction,

"[p]arties who seek to defend gender-based

government action must demonstrate an

’exceedingly persuasive justification’ for that

action." United States v. Virginia, 518 U.S. 515,

531 (1996) (citation omitted); see also

Mississippi Univ. for Women v. Hogan, 458 U.S.

718, 724 (1982) (holding that a gender

classification must serve "important governmental

objectives" and that "the discriminatory means

employed [must be] substantially related to the

achievement of those objectives") (internal

quotations omitted). In many ways, the

requirement that parties show an "exceedingly

persuasive justification" for gender-based

classifications is more demanding than the Equal

Pay Act’s provision allowing a party to avoid

liability under the statute if they can

demonstrate that the established wage disparity

is based on something other than sex. Because the

Constitution demands an "exceedingly persuasive

justification" for gender discrimination, while

the Equal Pay Act only requires an employer to

offer some legitimate reason for a wage disparity

other than sex, in the great majority of cases

the Equal Pay Act does not subject employers to

liability in situations where the Constitution

does not.

The fact that the Equal Pay Act prohibits

little constitutional conduct is significant, but

the defendants contend that we must also consider

the adequacy of the legislative findings

supporting the application of the Act to the

States. According to the defendants, the

legislative findings underlying the Equal Pay Act

address only the problem of discrimination in

private industry, and therefore do not justify

the application of the Equal Pay Act to public

employees. Although we recognize that a review of

the legislative record can be an instructive

means of distinguishing appropriate remedial

action from an impermissible substantive change

in legal rights, see id., we want to emphasize

that a "lack of support [in the legislative

record] is not determinative of the sec. 5

inquiry." Kimel, 120 S.Ct. at 649; see also

Florida Prepaid, 119 S.Ct. at 2210; City of

Boerne, 521 U.S. at 531-32. This observation is

particularly relevant in the context of the Equal

Pay Act, where the value of congressional

findings is greatly diminished by the fact that

the Act prohibits very little constitutional

conduct, see City of Boerne, 521 U.S. at 533

(stating that the kind of limitations reflected

in the legislative findings inquiry "tend to

ensure Congress’ means are proportionate to ends

legitimate under sec. 5" in circumstances where

"a congressional enactment pervasively prohibits

constitutional state action") (emphasis added),

and where the historical record clearly

demonstrates that gender discrimination is a

problem that is national in scope.

In considering the validity of congressional

action under sec. 5 of the Fourteenth Amendment,

"[t]he ultimate question [is] not whether

Congress created a sufficient legislative record,

but rather whether, given all of the information

before the Court, it appears that the statute in

question can appropriately be characterized as

legitimate remedial legislation." Kilcullen v.

New York Dep’t of Labor, 205 F.3d 77, 81 (2d Cir.

2000). While it is true that the legislative

record of the Equal Pay Act itself is devoid of

any explicit findings as to the problem of gender

discrimination by the States, see Hundertmark v.

State of Fl. Dep’t of Transp., 205 F.3d 1272,

1276 (11th Cir. 2000), the defendants do not

contest the adequacy of the legislative record

regarding wage discrimination outside the public

sector. Moreover, by the time the Equal Pay Act

was extended to the States, Congress had

developed a clear understanding of the problem of

gender discrimination on the part of States

through its passage of legislation such as the

Education Amendments of 1972, Pub. L. No. 92-318,

tit. IX, 86 Stat. 373 (1972), and its extension

of Title VII to state and local employers in the

Equal Employment Opportunity Act of 1972, Pub. L.

No. 92-261, sec. 2, 86 Stat. 103 (1972). See

Fullilove v. Klutznick, 448 U.S. 448, 503 (1980)

(Powell, J., concurring) ("After Congress has

legislated repeatedly in an area of national

concern, its Members gain experience that may

reduce the need for fresh hearings or prolonged

debate when Congress again considers action in

that area."). We believe that this evidence is

sufficient to support the limited action taken by

Congress in its passage of the Equal Pay Act,

particularly given the well-documented history of

gender discrimination in this Nation, a history

that is embodied in the Supreme Court’s own

jurisprudence. See Virginia, 518 U.S. at 531

(stating that "skeptical scrutiny of official

action denying rights or opportunities based on

sex responds to volumes of history"); J.E.B., 511

U.S. at 136 (stating that "’our Nation has had a

long and unfortunate history of sex

discrimination.’") (quoting Frontiero v.

Richardson, 411 U.S. 677, 684 (1973)); see also

Crawford v. Davis, 109 F.3d 1281, 1283 (8th Cir.

1997) (arguing that it would be difficult "to

understand how a statute enacted specifically to

combat [gender] discrimination could fall outside

the authority granted to Congress by sec. 5").

After examining the remedial scheme of the

Equal Pay Act and the legislative history

surrounding its enactment, we conclude that

Congress validly exercised its authority under

sec. 5 of the Fourteenth Amendment when it

extended the Equal Pay Act to cover wage

discrimination on the part of state employers.

Our conclusion in this regard is bolstered both

by the Supreme Court’s own distinction in Kimel

between age and gender, see Kimel, 120 S.Ct. at

645 ("Age classifications, unlike governmental

conduct based on race or gender, cannot be

characterized as ’so seldom relevant to the

achievement of any legitimate state interest that

laws grounded in such considerations are deemed

to reflect prejudice and antipathy.’") (quoting

Cleburne, 473 U.S. at 440), and by our

understanding of the purposes of the Equal Pay

Act. Congress enacted the Equal Pay Act in an

attempt "to remedy . . . the fact that the wage

structure of many segments of American industry

has been based on an ancient but outmoded belief

that a man, because of his role in society,

should be paid more than a woman even though his

duties are the same." Corning Glass, 417 U.S. at

195 (citation and internal quotation omitted).

Significantly, it is precisely these kinds of

classifications--those based on outdated and

inappropriate assumptions about a woman’s place

in society--at which the protections of the

Fourteenth Amendment are also aimed. Because we

conclude that the Equal Pay Act is a piece of

"remedial or preventive legislation aimed at

securing the protections of the Fourteenth

Amendment," Florida Prepaid, 119 S.Ct. at 2207,

we hold that the defendants cannot assert the

Eleventh Amendment as a defense to the

plaintiffs’ Equal Pay Act claim./4

B.

The defendants also contend that the district

court erred in determining that Congress validly

abrogated the States’ Eleventh Amendment immunity

under sec. 5 of the Fourteenth Amendment when it

extended the application of Title VII to the

States. In our original consideration of this

claim on direct appeal, we noted that this Court

has already held the extension of Title VII to

state employers to be a valid exercise of

Congress’ sec. 5 authority. See Liberles v.

County of Cook, 709 F.2d 1122, 1135 (7th Cir.

1983); United States v. City of Chicago, 573 F.2d

416, 423 (7th Cir. 1978) (holding that Congress’

extension of Title VII’s protections to public

employees was "clearly rationally related to and

consistent with ’the letter and spirit’ of the

Fourteenth Amendment"). We then held that the

defendants had waived this argument, and

consequently any challenge to our existing

precedent, by failing to adequately develop it

before the district court. See Varner, 150 F.3d

at 717 n.14 (quoting United States v. Berkowitz,

927 F.2d 1376, 1384 (7th Cir. 1991)) ("We

repeatedly have made clear that perfunctory and

undeveloped arguments . . . are waived (even

where those arguments raise constitutional

issues)."). Because we do not believe that

anything in the Supreme Court’s remand order

necessitates a new analysis of this question, we

again hold that the defendants failed to raise

their Title VII claim sufficiently before the

district court, and have therefore waived that

argument for purposes of appeal.

III. Conclusion

Having found that the extension of the Equal

Pay Act to the States was a valid exercise of

congressional authority under sec. 5 of the

Fourteenth Amendment, and having determined that

the defendants waived their sec. 5 challenge to

the plaintiffs’ Title VII claims, we AFFIRM the

decision of the district court.

/1 The defendants no longer dispute that Congress

unequivocally expressed its intent to abrogate

the States’ Eleventh Amendment immunity in the

Equal Pay Act. Furthermore, the Supreme Court

addressed this issue in Kimel when it stated that

the enforcement provisions set forth in 29 U.S.C.

sec. 216(b), which authorizes private suits to

enforce both the ADEA and the Equal Pay Act,

"clearly demonstrate Congress’ intent to subject

the States to suit for money damages at the hands

of individual employees." Kimel, 120 S.Ct. at

640. We therefore do not address the defendants’

original claim that the Equal Pay Act does not

contain an unmistakable expression of Congress’

intent to abrogate States’ Eleventh Amendment

rights.

/2 Although the defendants do not renew their

argument that the Fair Labor Standards Act

("FLSA"), 29 U.S.C. sec. 201 et seq., which

contains the Equal Pay Act, was an invalid

attempt to abrogate the States’ sovereign

immunity under the Commerce Clause, we want to

reaffirm our original holding rejecting that

claim. Although Congress explicitly stated that

the FLSA constituted an exercise of congressional

power under the Commerce Clause, see 29 U.S.C.

sec. 202(b), we do not believe that Congress

expressly relied on its Commerce Clause power

when it extended the FLSA, and consequently the

Equal Pay Act, to the States, see Timmer v.

Michigan Dep’t of Commerce, 104 F.3d 833, 838-39

n.7 (6th Cir. 1996) ("We believe that th[e]

legislative history [of the Equal Pay Act] falls

far short of constituting an ’express statement’

of congressional intent."), or that any reliance

on its commerce power was intended to be

exclusive, see Mills v. Maine, 118 F.3d 37, 44

(1st Cir. 1997) ("[O]ne cannot read Congress’

statement regarding the [Equal Pay] Act’s

validity under the Commerce Clause to indicate

that Congress intended to exclude other

applicable constitutional bases for the Act.")

(quotations and alteration omitted).

Because we remain unconvinced that Congress

clearly expressed an intention to proceed under

its commerce power when it applied the Equal Pay

Act to the States, the key "inquiry is whether

the objectives of the legislation are within

Congress’ power under [sec. of the Fourteenth

Amendment]." EEOC v. Elrod, 674 F.2d 601, 608

(7th Cir. 1982). Under this standard, it is not

difficult to conclude that the objectives of the

Equal Pay Act are within Congress’ powers under

the Fourteenth Amendment. The purpose of the

Equal Pay Act is to prevent arbitrary gender-

based wage disparities, while prohibiting

"arbitrary, discriminatory government conduct .

. . is the very essence of the guarantee of

’equal protection of the laws’ of the Fourteenth

Amendment." Id. at 604. We thus conclude that the

Equal Pay Act’s prohibition on discrimination

fits within the objectives of sec. 5 of the

Fourteenth Amendment, and that the Act is an

exercise of congressional power under sec. 5.

This does not mean, however, that Congress’

action in subjecting state employers to the Equal

Pay Act was a valid exercise of its authority

under sec. 5, a subject which is addressed infra.

/3 Although the Equal Pay Act constitutes a separate

act of Congress, it was originally enacted in

1963 as an amendment to the FLSA. In 1974, the

Equal Pay Act was applied to the States by virtue

of an amendment extending the protections of the

FLSA to state employees.

/4 In so holding, we join the other Circuits who

have considered this issue in the context of the

Equal Pay Act. See Kovacevich v. Kent St. Univ.,

No. 98-3678, 2000 WL 1205859 (6th Cir. Aug. 25,

2000); Hundertmark v. Florida Dep’t of Transp.,

205 F.3d 1272 (11th Cir. 2000); O’Sullivan v.

Minnesota, 191 F.3d 965 (8th Cir. 1999); Ussery

v. Louisiana, 150 F.3d 431 (5th Cir. 1998), cert.

dismissed, 526 U.S. 1013 (1999); Timmer v.

Michigan Dep’t of Commerce, 104 F.3d 833 (6th

Cir. 1997); Usery v. Charleston County Sch.

Dist., 558 F.2d 1169 (4th Cir. 1977); Usery v.

Allegheny County Inst. Dist., 544 F.2d 148 (3d

Cir. 1976), cert. denied, 430 U.S. 946 (1977).