finding 26 2 At the hearing, Plaintiff appeared to argue that she did not amend the complaint to include any 27 individuals because such individuals could not be sued with respect to her state claim, but this is 1 that the FMLA’s “self-care provision is not a valid abrogation of the States’ immunity from 2 suit”
How later courts described this case
- finding 26 2 At the hearing, Plaintiff appeared to argue that she did not amend the complaint to include any 27 individuals because such individuals could not be sued with respect to her state claim, but this is 1 that the FMLA’s “self-care provision is not a valid abrogation of the States’ immunity from 2 suit”
- holding conclusory allegations that an African American plaintiff was terminated based on his race supported only by comparisons to white coworkers would not survive a motion to dismiss without sufficient pleading to establish that they were actually similarly situated
- stating that because “pregnancy provided a central justification for . . . historic discrimination against women,” Geduldig “was egre- giously wrong to declare that discrimination on the basis of preg- nancy is not discrimination on the basis of sex” (emphasis added)
- holding that there was an insufficient nexus “between self-care leave and gender discrimination by state employers” to validly abrogate state sovereign immunity
Written by the judges who cited it.
The opinion
Justice Scalia,
concurring in the judgment.
The plurality’s opinion seems to me a faithful application of our “congruence and proportionality” jurisprudence. So does the opinion of the dissent. That is because the varying outcomes we have arrived at under the “congruence and proportionality” test make no sense. Which in turn is because that flabby test is “a standing invitation to judicial arbitrariness and policy-driven decisionmaking,” Tennessee v. Lane, 541 U. S. 509, 557-558 (2004) (Scalia, J., dissenting). Moreover, in the process of applying (or seeming to apply) the test, we must scour the legislative record in search of evidence that supports the congressional action. See ante, at 37-43; post, at 59-64 (Ginsburg, J., dissenting). This grad *45 ing of Congress’s homework is a task we are ill suited to perform and ill advised to undertake.
I adhere to my view that we should instead adopt an approach that is properly tied to the text of § 5, which grants Congress the power “to enforce, by appropriate legislation,” the other provisions of the Fourteenth Amendment. (Emphasis added.) As I have explained in greater detail elsewhere, see Lane, supra, at 558-560 , outside of the context of racial discrimination (which is different for stare decisis reasons), I would limit Congress’s § 5 power to the regulation of conduct that itself violates the Fourteenth Amendment. Failing to grant state employees leave for the purpose of self-care — or any other purpose, for that matter — does not come close.
Accordingly, I would affirm the judgment of the Court of Appeals.