Amicus Curiae Brief — Smigelski v. Office of Disciplinary Counsel

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No. 01-1368

IN THE ? >

Supreme Court of the United States

©_<o———

DEPARTMENT OF HUMAN RESOURCES. ET AL..

Petitioners.

WILLIAM HIBBS and UNITED STATES OF AMERICA.

Respondents

ON WRIT CF CERTIORARI TO THE UNITED STATES

COURT OF APPEA LS FOR THE NINTH CIRCUIT

BRIEF OF WOMEN’S HISTORY SCHOLARS

ALICE KESSLER-HARRIS, LINDA KERBER ET AL.,

IN SUPPORT OF RESPONDENTS

CONRAD K. HARPER ISABELLE KATZ PINZLER

WILLIAM T. RUSSELL. JR Counsel of Record

ELAINE M. DIVELBLISS JENNIFER K. BROWN

AMANDA T. PEREZ WENDY R. WEISER

SIMPSON THACHER & BARTLETT NOW LEGAL DEFENSE AND

425 Lexington Avenue EDUCATION FUND

New York. New York 10017 395 Hudson Street

(212) 455-2000 New York. New York 10014

(212) 925-6635

Auorneys for Amici Curiae

TABLE OF CONTENTS

INTEREST OF AMICI CURIAE .................

SUMMARY OF ARGUMENT ...................

chicks bedhcnecnWinaaeavauetentiesess

I. THE COURT SHOULD CONSIDER ALL

EVIDENCE OF UNCONSTITUTIONAL

STATE CONDUCT JUSTIFYING THE FMLA...

Il. BEFORE THE FMLA, STATES UNCONSTI-

TUTIONALLY DISCRIMINATED IN FAMILY

LEAVE FOR STATE EMPLOYEES.............

A. State Policies Explicitly Accorded

Different Leave To Women And Men ..

B. States Applied Discretionary Leave

Policies Differently For Women

as ediduesennciaens Séu0nesee.s<

C. States Provided No Family Leave......

1. States Had Not Enacted Family

Leave Policies Before Introduction

i ebeee

2. State Sick Leave Policies Did Not

Provide FMLA-Equivalent Family

IRL SR AEG AERRC e e ee

Ill. A LONG HISTORY OF UNCONSTITUTIONAL

STATE-SPONSORED SEX DISCRIMINATION

ENFORCED SEX ROLE STEREOTYPES.......

A. States Excluded Women From Jobs,

Assuming that Women Should Be

Pamily Caseeamees ..cccccesccestncunenan

B. States Enacted Discriminatory

Protective Laws Limiting Women’s

Employment Opportunities and

Confining Them to the Role of

CarOOMOGS ..ccccsccoencsheaneeeeeeeeeee

C. States Enacted Other Discriminatory

Laws that Reinforced Gender-Role

Stereotypes and Encouraged Women

to Remain Family Caretakers...........

1. Benefits for Male Workers Only...

2. Presumption in Unemployment

Insurance Law that Women are

CaseGemees.. .ssecsaeeeenee

3. Mandatory Maternity Leave for

WOES CRY occ cccescccevensekunee

4. Jury Service for Men Only.........

CONCLUSION ....cccccsccscevtceeseeueanneneene

PAGE

s ~ae =~ —_— a «* ee.

TABLE OF AUTHORITIES

Cases

Archer v. Mayes, 194 S.E.2d 707 (Va. 1973) ....

Arkin v. Oregon, No. 6:96CV6327

(D. Or., filed Dec. 19, 1996) ...............

Arp v. Workers’ Comp. Appeals Bd.,

Ses Se ee Ge BUT ED ccccccccccccccces

Association Indus. of Oklahoma v. Industrial

Welfare Comm'n, 90 P.2d 899 (Okla. 1939)..

Board of Trustees v. Garrett, 531 U.S. 356

TEM PELGds bebdecescsdseccccescoees

Boren v. Dep't of Empl. Dev., 59

Cal. App. 3d 250 (1976).............. hemi’

Bradwell v. Illinois, 83 U.S. 130 (1872)........

Caterpillar Tractor Co. v. Grabiec,

317 F. Supp. 1304 (S.D. Ill. 1970).........

Chavkin v. Santaella, 81 A.D.2d 153

DM Ps BURP cccccccccccccccccccess

Cleveland Bd. of Educ. v. LaFleur,

ES occ cabbbecsecceseeccsc

Conn. Nat'l Org. for Women v. Peraro,

No. N77-477, 1980 WL 212, at *1

MES Ey BED cccscccccccesceccce:

Corning Glass Works v. Brennan,

ns ccc cececcestsceese:

Craig v. Boren, 429 U.S. 190 (1976).............

PAGE

Dekosenko v. Brandt, 313 N.Y.S.2d 827

(N.Y. Sup. Ct. 1970), aff'd, 318

N.Y.S.2d 915 (App. Div. 1971) ............

Duren v. Missouri, 439 U.S. 357 (1979)........

Ex Parte Miller, 124 P. 427 (Cal. 1912),

aff'd, 236 U.S. 373 (1915) ........ 0.000:

Faulkner v. Jones, 10 F.3d 226

CD Gee, BOO hd ncddeccdeudsdescescsoccoess

Florida Prepaid Postseconday Educ.

Expense Bd. v. College Sav. Bank,

oh Rf IES aa ee

Frontiero v. Richardson, 411 U.S. 677 (1973)...

Garneau v. Raytheon Co., 323 F. Supp.

FOG Gk BR, TIPU Bie ckccecvecccesccsesesess

Garrett v. Board of Trustees, 193 F.3d 1214

(Lith Cir. 1999), rev'd on other grounds,

FOO De Fw Ge Ps cccccccscesccsssssodece:

Goesaert v. Cleary, 335 U.S. 464 (1948) .......

Gonzales v. Texas Empl. Comm'n, 486

F. Supp. 278 (S.D. Tex. 1977), aff'd,

614 F.2d 1295 (Sth Cir. 1980)..............

Hess v. Wims, 613 S.W.2d 85 (Ark. 1981) ......

Hibbs v. Department of Human Res.,

273 F.3d 844 (9th Cir. 2001) ............... 4, 8,

Homemakers, Inc. of Los Angeles v. Division

of Indus. Welfare, 509 F.2d 20

CG, DE descent deeeeunnenseketedeee

Hoyt v. Florida, 368 U.S. 57 (1961).............

In re Goodell, 39 Wis. 232 (1875)...............

In re Opinion of the Justices, 22 N.E.2d 49

it RE aE FE LIP st ABI bana

J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127

Eh gail Mix ie pa Ace a gle tg en anan een

Jones Metal Prods. Co. v. Walker. 281

Se © GD PUEDE ceecccccnsececcnssecces

Kane v. Egan, 14 Conn. Supp. 485 (1947).......

Kimel v. Florida Bd. of Regents, 528

Sieh: Gr Sn nbeddnseenenddcecesbarcncceue:

Kirstein v. Rector & Visitors of Univ. of Va.,

309 F. Supp. 184 (E.D. Va. 1970)...........

Knussman v. State of Maryland, 272 F.3d 625

Sy Gy Seseasacenendeinesehddeosnoncess

Kober v. Westinghouse Elec. Corp., 325

F. Supp. 467 (W.D. Pa. 1971), aff'd,

480 F.2d 240 (3d Cir. 1973).................

Larsen v. Rice, 171 P. 1037 (Wash. 1918) .......

LeBlanc v. Southern Bell Tel. & Tel. Co..

333 F. Supp. 602 (E.D. La. 1971),

aff'd, 460 F.2d 1228 (Sth Cir. 1972) ........

Local 246, Utility Workers Union v. Southern

Cal. Edison Co., 320 F. Supp. 1262

Se CED SE icadducccsdnnccenncedcddoeecs

PAGE

Manning v. General Motors Corp., 1971 U.S.

Dist. LEXIS 12108 (N.D. Ohio 1971),

aff'd, 466 F.2d 812 (6th Cir. 1972) ......... 22

McGrew v. Indus. Comm'n, 85 P.2d 608

NE Se arnt ieee tide en aennes 22

Miller v. Wilson, 236 U.S. 373 (1915)........... 21

Mississippi Univ. for Women v. Hogan,

es Sid atrtiitlinineidaneens 19

Moore v. Alabama State Univ., 980 F. Supp.

A Se) ED odin ccubbienscecasces 12, 13

Morehead v. New York ex rel. Tipaldo,

ee es Ne Ge bdcedcceddccccascescccces 24

Muller v. Oregon, 208 U.S. 412 (1908).......... 23

New Jersey Rest. Ass'n v. Holderman,

Se Gee COs EOE bdneedtncccsscccens 22

Orr v. Orr, 440 U.S. 268 (1979) ........ een NY 10, 27

Portman v. Steveco, Inc., 453 N.E.2d 284

CE. GR. BOM. Foes wcccecccsuceseccevessece 25

Radice v. New York, 264 U.S. 292 (1924)........ 21

Ridinger v. General Motors Corp., 325 F. Supp.

1089 (S.D. Ohio 1971), rev'd on other

grounds, 474 F.2d 949 (6th Cir. 1972)...... 20

Riley v. Commonwealth of Massachusetts,

232 U.S. 671 (1914).......... te teeeeeeeeeees 21

Rosenfeld v. Southern Pac. Co., 444 F.2d

ff rere 24

Sailer Inn, Inc. v. Kirby, 485 P.2d 529

Schafer v. Board of Public Educ., 903 F.2d

ee EN Cas ceucdsbtinnedavesocces

Schattman v. Texas Empl. Comm'n, 459

-s pb i. ls |. ere

Scott v. State, 207 So. 2d 493 (Fla. 1968) ....

Stanley v. Illinois, 405 U.S. 645 (1972) ......

Stanton v. Stanton, 421 U.S. 7 (1975) ........

State v. Buchanan, 70 P. 52 (Wash. 1902) ....

State v. Charles Schweinler Press, 108

fe 8 SETS eer

State v. Collins, 198 N.W. 557 (S.D. 1924)...

PAGE

*“*-e.

*“*-*.

State v. Comeaux, 211 So. 2d 620 (La. 1968)....

State v. Dominion Hotel, 151 P. 958 (Ariz.

1915), aff'd, 249 U.S. 265 (1919)........

State v. Fhr, 221 N.W. 883 (N.D. 1928)......

State v. Elerding, 98 N.E. 982 (Ill. 1912).....

State v. Fairfield Cmtys. Land Co..,

538 S.W.2d 698 (Ark. 1976) .............

State v. Hall, 187 So. 2d 861 (Miss.), appeal

dismissed, 385 U.S. 98 (1966) ...........

State v. Parker, 462 S.W.2d 737 (Mo. 1971)..

State v. Washington, 272 So. 2d 355

i Sl dn\cieteeaeiuaensaneneseseenens

vill

State v. Williams, 51 Misc. 383 (N.Y. City Ct.),

aff'd, 116 A.D. 379 (N.Y. Sup. Ct. 1906),

aff'd, 81 N.E. 778 (N.Y. 1907)..........

Stettler v. O'Hara, 139 P. 743 (Ore. 1914),

Or a ee is Ge COE csnsccacecess:

Strain v. Southerton, 62 N.E.2d 633

Cee GD, Fee Pe ccccssccececcescescesns

Stryker v. Register Publ'g Co., 423

F. Supp. 476 (D. Conn. 1976) ...........

Swafford v. Tyson Foods, Inc., 621

3. W.26 BES (CATR. BFGE) ..ccccccccscecees

Sylvara v. Indus. Comm'n, 550 P.2d 868

IN Se a iil ea a alin a

Taylor v. Louisiana, 419 U.S. 522 (1975)

Tomarchio v. Greenwich Township,

379 A.2d 848 (N.J. 1977) ...............

Topeka Laundry Co. v. Court of Indus.

Rins., 237 P. 1041 (Kan. 1925)..........

Turner v. Dept. of Empl. Sec., 423

ce Be Cee c cecesecccecccsvensoesecces

W. C. Ritchie & Co. v. Wayman, 91 N.E.

GP Gee GD cnt cccescccnccocsnccsesese:

Weeks v. Southern Bell Tel. & Tel. Co..,

408 F.2d 228 (Sth Cir. 1969)............

Weinberger v. Wiesenfeld, 420 U.S. 636

CEVED cocccocensendwececscneveconcseneses

PAGE

, 23

PAGE

Wengler v. Druggists Mut. Ins. Co.,

I ee ee ee

Wenham v. State, 91 N.W. 421 (Neb. 1902)...... 23

West Coast Hotel Co. v. Parrish, 300

I i 22

UAW v. Johnson, 674 F.2d 1195

RI Le 27

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

I sn site ites ol eT i 21

Vissering Mercantile Co. v. Annunzio,

ee I ong cea ccc cncect 22

Young v. Willis, 203 S.W.2d 5 (Ky. 1947)........ 22

Constitutional Provisions, Statutes and Codes

ete Es GE, SUD OP OD vce cccccccosdéccccccce 2

29 U.S.C. §§ 2601-54 (1993) ............... 1, 3, 14, 16

Ark. Code Ann. § 11-7-318 (Michie 2001)...... 20

Conn. Gen. Stat. § 51-218 (1953)................ 29

Fla. Stat. ch. 40.01(1) (1967)

I a 29

Iowa Code § 216:6:2 (1993) ...........00..00085. 8

Mass. Gen. Laws ch. 149 § 105D (1993)........ )

Mass. Gen. Laws ch. 234 § 1 (1949)

ee i eae i idiccs we 29

Mass. Gen. Laws ch. 345 (1911)

EE SE acdccséctcocessévcccssscccese 28

PAGE

Mont. Code Ann. §§ 49-2-310, 311 (1987)...... §

N.C. Gen. Stat. § 9-19 (1951) (repealed

SOG ccvevesendveveunsnddadssbabivesvdancents 29

N.Y. Lab. Law § 206-b (McKinney 1973)....... 28

Ohio Admin. Code § 4112-5-02(G)(6)

SRE .s:uvvcodiacevunicsiansatubedsecveneveess 8

Tenn. Code. Ann. § 4-21-408 (1993) ............ S)

Tex. Rev. Civ. Stat. Ann. art. 2135 (1964)

oo : PPPrrrerer rr erry Te rT rrTre erry 29

Utah Code Ann. § 35-4-5(h)(1) (1974) .......... 27

Vt. Stat. Ann. tt. 21, § 444 (1947)

SDT Fs kev ctcdesscncdadicceccscvscss 28

Congressional and Legislative History

138 Cong. Rec. H8,226-27 (1992)............... 5

138 Cong. Rec. $12,096 (1992).................. 7

H.R. 4300, 100th Cong. (1986) ...............4.. 15

H.R. Rep. No. 100-51 1(II) (1988) ............... 7

H.R. Rep. No. 103-8(1-III)

CUES ove ccdkundcbenveaauases 5, 7, 8, 11, 13, 15, 16

Fe. Se, DOU GORE, CIDGS) cc ccccccccsccessscs 6

BS. TOW. FEO. BGR (EGO ED co csccccccccscccncscecss 14

BS. Baw. He. HGDad (ERG cc ccccvccccssccccscccnss 7,15

S. Thaw. FEW, BSG CIT ei ccccccccccccceccccceseseas 28

PAGE

The Family Medical Leave Act of 199]:

Hearings on S. 5 Before the Subcomm.

on Children, Family, Drugs & Alcoholism

of the Comm. on Labor & Human Resources,

102nd Cong., Ist Sess. (1991) .............. we)

Family Medical Leave Act of 1987: Joint

Hearing Before the Subcomm. on Labor-

Memt. Rel. and the Subcomm. on Labor

Standards of the House Comm. on Educ.

& Labor, 100th Cong., Ist Session (1987)... 6

Parental and Medical Leave Act of 1986: Joint

Hearing Before the Subcomm. on Labor-

Memt. Rel. & the Subcomm. on Labor

Standards of the House Comm. on

Educ. & Labor, 99th Cong. (1986) ...... 6,7, 8, ll

Parental and Medical Leave Act of 1987:

Hearings on S. 249 Before the

Subcomm. on Children, Family,

Drugs & Alcoholism of the Comm.

on Labor & Human Res., Part 2,

100th Cong., Ist Sess. (1987)..... 5, 10, 11, 14, 15

Other Authorities

Judith A. Baer, The Chains of Protection:

The Judicial Response to Women's Labor

I Sicbcticadiddeccesvansevess 23-24

Family Leave Activity Shifts to the States,

11-10 Employee Benefit Notes 1-3

(Oct. 1990) ...... pethdhendadnsadsnisedesdanes 15

PAGE

Lucinda M. Finley, Transcending Equality

Theory: A Way Out of the Maternity

and the Workplace Debate, 86 Colum.

Ret fl errr eee 14

Edith L. Fisch & Mortimer D. Schwartz,

State Laws on the Employment of

es Cle... ccGvadsdunensenbeudeeeees 20, 23, 28

Joanna L. Grossman, Note, Women's Jury

Service: Right of Citizenship or Privilege

of Difference?, 46 Stan. L. Rev. 1115

SE i Sv ccdadudsdccdsedducnivendsiheasiivens 29

Laura T. Kessler, The Attachment Gap:

Employment Discrimination Law, Women's

Cultural Caregiving, and the Limits of

Economic and Liberal Legal Theory,

34 U. Mich. J.L. Reform 372 (2001)........ 14

Alice Kessler-Harris, Out to Work: A History

of Wage-Earning Women in the United

DIS CID cnc sesevccscescdcnntbswnecsssees 25

3 Lex K. Larson, Employment

Discrimination § 44.01

CPG, Bs wecccessavscccecsees 20, 22, 23, 24, 25

Donna R. Lenhoff & Sylvia M. Becker, Family

and Medicai Leave Legislation in the States:

Toward a Comprehensive Approach, 26

Harv. J. on Legis. 403, 405-06 (1989) ...... 14

Michele Lord & Margaret King, The State

Reference Guide to Work-Family

Programs for State Employees

Ge Ca dd edcreccacecconsctavcccocsses 16-17, 18

X11

PAGE

Martin H. Malin, Fathers and Parental Leave,

72 Tex. L. Rev. 1047 (1994) ................ 11

The Parental Leave Crisis: Toward a National

Policy (Edward F. Zigler & Mery! Frank

ey EE Uesakettacnduddncdéenanoucedecene, 6-7, 11

Ira B. Sprotzer, Parental and Family Leave

Laws: A Review and Analysis, 15-4

Employee Benefits J. 12 (Dec. 1990)....... 15

Wendy S. Strimling, The Constitutionality of

State Laws Providing Employment Leave

for Pregnancy: Rethinking Geduldig

After Cal Fed, 77 Cal. L. Rev. 171 (1989) .. 9

Steven K. Wisensale & Michael D. Allison,

An Analysis of 1987 State Family Leave

Legislation: Implications for Caregivers

of the Elderly, 28 The Gerontologist

Pe GED abs sdhcuuiasenkeskenudsckcess 15

Women’s Bureau, U.S. Dep’t of Labor, Bulletin

297, 1975 Handbook On Women Workers,

SPE ick biehebnbdddedaenn inane ced 22, 23

Women’s Bureau, U.S. Dep’t of Labor, State

Maternity/Family Leave Law (1993)........ 8

INTEREST OF AMICI CURIAE'

Amici Curiae are historians and scholars who have

studied and written extensively on United States women’s

history. See Appendix A. Because this case raises issues

concerning the history of state-sponsored sex discrimi-

nation, Amici have an interest in bringing the historical

record to the Court’s attention.

SUMMARY OF ARGUMENT

Congress enacted the Family Medical Leave Act of

1993, 29 U.S.C. §§ 2601-54 (“FMLA”), to prevent and

remedy various forms of sex discrimination in employ-

ment stemming from the pervasive and intractable stereo-

type that family care is primarily women’s work and is

women’s primary responsibility. Congress recognized that

this stereotype has long caused employers, including state

employers, to make family leave available, if at all, to

women and not men, to refuse to hire or promote women,

to fire or demote women, and otherwise to discriminate

against women in employment and against men in family

care benefits.

There is substantial evidence of unconstitutional state-

sponsored sex discrimination with respect to the very sub-

jects addressed by the FMLA. First, states discriminated

based on sex in the employment leave they made avail-

able to their employees. They did so by restricting the

availability of leave to women either explicitly in their

policies or on an ad hoc basis by granting discretionary

leave in a discriminatory manner. States also discrimi-

nated against female employees because they had taken,

or state employers expected they would take, leave. States

started taking steps to halt this pervasive discrimination

| The parties have consented to the filing of this Amici Curiae

brief, as evidenced by letters of consent filed with the Clerk. Amici

are not related in any way to any party in this case, and no person or

entity other than Amici and their counsel has authored any part of, or

made any monetary contribution to the preparation of, this brief.

only in response to congressional consideration of the

FMLA. Second, from the beginning of the republic until

recently, states discriminated based on sex through count-

less laws restricting women’s employment opportunities.

Not only were those state laws grounded in the sex-role

stereotypes addressed by the FMLA, but they also

ensured, through the coercive power of the states, that

women would remain primarily family caretakers. In each

of these ways, the states played a substantial role in cre-

ating the need for the FMLA.

The congressional, judicial, and statutory records are

replete with evidence of each of these forms of state dis-

crimination. All of this evidence is relevant to the Court's

inquiry as to whether the FMLA is a valid exercise of

Congress’s power under Section 5 of the Fourteenth

Amendment to remedy sex discrimination. Congress acted

under the backdrop of a long history of sex discrimina-

tion, a history which this Court has recognized entitles

sex classifications to heightened scrutiny.

ARGUMENT

I. THE COURT SHOULD CONSIDER ALL EVI-

DENCE OF UNCONSTITUTIONAL STATE CON.-

DUCT JUSTIFYING THE FMLA

In order to determine whether Congress validly exer-

cised its Section 5 power to abrogate the states’ sovereign

immunity, this Court has first identified “the targeted con-

stitutional wrong,” Florida Prepaid Postsecondary Educ.

Expense Bd. v. College Sav. Bank, 527 U.S. 627, 646

(1999), and then considered the existence of “evidence of

widespread and unconstitutional . . . discrimination by the

States,” Kimel v. Florida Bd. of Regents, 528 U.S. 62, 91

(2000), sufficient to justify remedial congressional action.

The constitutional wrong targeted by the FMLA is sex dis-

crimination, including unconstitutional discrimination by

the states, that restricted women’s employment opportu-

nities as well as men’s opportunities to take family leave

based on the impermissible assumption that women and

not men are responsible for family care. The stated pur-

poses of the FMLA include “to promote the goal of equa!

employment opportunity for women and men,” 29 U.S.C.

§ 2601(b)(5), and, “consistent with the Equal Protection

Clause of the Fourteenth Amendment,” to “minimize[ } the

potential for employment discrimination on the basis of

sex by ensuring that [family and medical] leave is avail-

able. . . on a gender-neutral basis.” /d. § 2601(b)(4). In

enacting the FMLA, therefore, Congress was responding

to the fact that employers, including states, discriminated

based on sex by failing to make employment leave avail-

able on a gender-neutral basis. Congress was also aware of

the long history of discriminatory state laws and practices

that relegated women to the role of family caretakers and

secondary workforce participants.

The Court should consider the full range of the over-

whelming evidence of unconstitutional state action that

supports remedial congressional action in the FMLA. This

evidence is in the congressional, judicial, and statutory

records and shows that states discriminated both in grant-

ing employment leave and in restricting women’s work-

place participation. While the Court has examined legislative

records as “[o}ne means” of determining whether Section

5 legislation addresses unconstitutional state action,

Kimel, 528 U.S. at 88, it has also recognized that “lack of

support [in the legislative history] is not determinative of

the § 5 inquiry,” id. at 91; Florida Prepaid, 527 U.S. at

646 (same). Rather, as Justices Kennedy and O'Connor

have observed, the existence of unconstitutional state

action may also be found in “confirming judicial docu-

mentation.” Board of Trustees v. Garrett, 531 U.S. 356,

376 (2001) (Kennedy, J., concurring). What is important

is the wrong Congress sought to remedy, not the extent to

which Congress documented the wrong.

When Congress acts to remedy discrimination based on

a Classification subject to heightened scrutiny under the

Equal Protection Clause, it has greater leeway in making

findings because the Court’s heightened scrutiny doctrine

already reflects judicial recognition that there has been “a

history of purposeful unequal treatment” based on sex.

Kimel, 528 U.S. at 83. That history is also confirmed in

the statute books. See Frontiero v. Richardson, 411 U.S.

677, 685 (1973) (“our statute books gradually became

laden with gross, stereotyped distinctions between the

sexes”). Indeed, the judicial and statutory records, in

addition to the congressional record, reflect a history of

state-sponsored sex discrimination causing and con-

tributing to the very injury Congress addressed in the

FMLA. The same history of state-sponsored sex dis-

crimination that leads the Court skeptically to scrutinize

sex-based classifications supports Congress's efforts to

enact remedial! legislation. Congress and this Court are

entitled to rely on that history. As the Ninth Circuit aptly

said, “when our nation’s judicial history already docu-

ments unconstitutional discrimination against the class at

issue, there is no need for Congress, separately and redun-

dantly, to provide detailed findings of such discrimination

in order to exercise its Fourteenth Amendment powers.”

Hibbs v. Department of Human Res., 273 F.3d 844, 861

(9th Cir. 2001). Accordingly, the judicial and state statu-

tory histories should be considered along with the leg-

islative history in any review of the FMLA.

Il. BEFORE THE FMLA, STATES UNCONSTITU-

TIONALLY DISCRIMINATED IN FAMILY LEAVE

FOR STATE EMPLOYEES

The states historically discriminated in the family leave

afforded to their own employees in a number of respects:

(1) through family leave policies that restricted leave to

women only, (2) through discretionary leave policies

applied in a discriminatory manner resulting in leave

being available to female employees but denied to male

employees, and (3) through the complete absence of leave

policies that led to disparate treatment of female employ-

ees. These state responses to employees’ family care

responsibilities reinforced a social order whereby women

are the primary family caregivers and men the bread-

winners.

Congress recognized that when family leave is avail-

able to women and not men, or when it is not available at

all, employers discriminate against women in hiring and

promotions on the assumption that they are less commit-

ted to their jobs than men. See, e.g., H.R. Rep. No. 103-

8(1), at 29 (1993) (“A law providing special protection to

women. . . , in addition to being inequitable, runs the

risk of causing discriminatory treatment.”).? Such policies

also affect family choices by providing incentives for

women and not men to undertake family care responsi-

bilities. See, e.g., H.R. Rep. No. 103-8(II1), at 14 (1993)

(“While women have historically assumed primary

responsibility for family caretaking, a policy that affords

women employment leave to provide family care while

denying such leave to men perpetuates gender-based

employment discrimination and stereotyping and improp-

erly impedes the ability of men to share greater respon-

sibilities in providing immediate physical and emotional

2 See also Parental and Medical Leave Act of 1987: Hearings

on S. 249 Before the Subcomm. on Children, Family, Drugs & Alco-

holism of the Comm. on Labor & Human Res., Part 2, 100th Cong.

170 (1987) (“1987 Hearings”) (testimony of Peggy Montes) (“Job

opportunities for [women with families] are limited, and they often

miss pay increases and promotions. The lack of uniform parental and

medical leave policies in the work place has created an environment

where discrimination is rampant.”); 138 Cong. Rec. H8,226-27 (1992)

(remarks of Rep. Hayes) (“Too often women experience the nightmare

of going in to their employer with the news that they are pregnant.

Although they are valued employees, up to the moment they become

pregnant, suddenly they find themselves unwanted.”).

care for their families.”).’ Discriminatory family leave

policies thus result in state-sanctioned relegation of

women to the status of secondary employees. It is these

forms of unconstitutional state-sponsored sex discrimi-

nation in family leave policies that Congress targeted in

the FMLA.

A. State Policies Explicitly Accorded Different Leave

To Women And Men

During the eight years between the introduction of the

first federal family leave bill in 1985 (the Parental and

Disability Leave Act of 1985, H.R. 2020, 99th Cong.

(1985)) and the passage of the FMLA, Congress amassed

substantial evidence of sex discrimination as a result of

state employment policies that accorded family leave dif-

ferently to women and men.

The congressional record references studies of public

sector family leave policies conducted by the Yale Bush

Center, which surveyed all 50 states in the mid-1980s.

See, e.g., 1986 Hearings at 29-30 (testimony of Mery!

Frank, Director of the Yale Bush Center Infant Care

Leave Project); The Parental Leave Crisis: Toward a

National Policy (Edward F. Zigler & Mery! Frank eds.,

> See also Parental and Medical Leave Act of 1986: Joint

Hearing Before the Subcomm. on Labor-Mgmt. Rel. and the Subcomm.

on Labor Standards of the House Comm. on Educ. & Labor, 99th

Cong. 101 n.2 (1986) (“/986 Hearings”) (statement of Women's

Legal Defense Fund) (“[Bjecause of sex discrimination against men,

some working fathers may find it more difficult than their female

counterparts to be permitted to accommodate family responsibilities

without suffering adverse employment consequences.”), Family Med-

ical Leave Act of 1987: Joint Hearing Before the Subcomm. on Labor-

Memt. Rel. and the Subcomm. on Labor Standards of the House

Comm. on Educ. & Labor, 100th Cong., Ist Sess. 235 (1987) (testi-

mony of Donna Lenhoff) (employment policies “continue to operate

as if women’s role is to stay at home and care for the family and

men’s role is to work outside the home”).

1988) (compilation of Yale Bush Center survey results).

The Yale Bush Center survey found that before passage of

the FMLA, parental leave policies in the states, where

they existed, overwhelmingly restricted the availability of

leave to female employees. See Kathleen Makuen, “Pub-

lic Servants, Private Parents: Parental Leave Policies in

the Public Sector,” in The Parental Leave Crisis 202-03.

According to this 1985 state survey, 30 states reported

offering some form of infant care leave to state employ-

ees, but nearly two-thirds of these states (19), including

Nevada, reported restricting such leave to female employ-

ees. Id. The study thus documents discrimination on the

basis of sex in state leave policies.

Seven of the states that restricted parental leave to

female employees also refused to provide job protection

during some or all of the leave period. Jd. By refusing to

guarantee female leave-takers a job upon return, these

States further undermined women's position in the work-

place. Lack of job protection for women after maternity

leave was one form of sex discrimination targeted by the

FMLA.

In addition to evidence of discriminatory leave policies

in the public sector, the legislative history incorporates

several private sector studies that document extensive sex

discrimination in employer leave policies. See, e.g., 1986

Hearings at 151-228 (reproducing Catalyst, Report on a

National Study of Parental Leaves (1986);* S. Rep. No.

103-3, at 14-15 (1993) (1989 Bureau of Labor Statistics

survey found that 37% of large employers offered mater-

nity leave while only 18% offered paternity leave); 138

Cong. Rec. $12,096 (1992) (1990 Bureau of Labor Statis-

tics study found same). While Congress did not rely

* — The Catalyst Report was cited favorably throughout the leg-

islative record. See, e.g., 1986 Hearings at 101 n.2; H.R. Rep. No.

100-51 1(II) at 24 (1988); H.R. Rep. No. 103-8(1), at 28.

exclusively on private sector evidence, it was aware that

private sector leave policies reflect the same problems as

those in the public sector, as the legislative record

reflects. See, e.g., 1986 Hearings at 30 (statement of

Mery! Frank, Yale Bush Center) (“public sector leaves

don’t vary much from private sector leaves”); id. at 147

(statement of Washington Council of Lawyers) (refer-

encing discriminatory treatment in both public and private

sector leave policies).

The Ninth Circuit correctly determined, after reviewing

evidence of sex discrimination in public and private poli-

cies and evidence that these policies are substantially sim-

ilar—all recorded in the legislative history—that “[t]aken

together [these studies] constitute substantial evidence of

unconstitutional state-sponsored gender discrimination

in leave policies for state employees.” Hibbs, 273 F.3d

at 859.

Equally important, state laws themselves—which Con-

gress examined in the legislative record, see, e.g., H.R.

Rep. No. 103-8(1), at 32-33, 74-84—confirm that states

discriminated based on sex in their family leave laws by

explicitly restricting leave to women or by defining fam-

ily leave in relation to pregnancy and related disabilities

so as effectively to restrict leave to women.° As of 1993,

nine states and Puerto Rico offered “family leave” to

female employees only, restricting such leave to preg-

nancy, disabilities related to pregnancy, and maternity

leave. See Women’s Bureau, U.S. Dep't of Labor, State

Maternity/Family Leave Law (1993). These statutes were

5 Ohio required employers to provide leave for “childbearing”

for “a reasonable amount of time.” Ohio Admin. Code § 4112-5-

02(G)(6) (1989). lowa provided leave for “pregnancy, childbirth, or

related medical conditions” for women only. lowa Code § 216:6:2

(1993). Montana made it unlawful for an employer to “refuse to grant

the employee a reasonable leave of absence for . . . pregnancy.”

Mont. Code Ann. § 49-2-310, 311 (1987).

narrowly drafted so that only female employees would be

eligible for leave. For instance, the Massachusetts statute

was captioned “Entitlement of female employees; rights

and benefits,” and provided for reinstatement of a “female

employee” absent for up to eight weeks of “maternity

leave.” Mass. Gen. Laws ch. 149, § 105D (1993).° The

analogous Tennessee law was simply entitled “Maternity

leave” and provided for leave “for a period not to exceed

four (4) months for pregnancy, childbirth, and nursing the

infant, where applicable (such period to be hereinafter

' referred to as ‘maternity leave’).” Tenn. Code. Ann. § 4-

21-408 (1993). As originally passed, the Tennessee statute

provided female employees with leave “for the purpose of

bonding” with a new child, but did not permit fathers

leave to “bond.” See Wendy S. Strimling, The Constitu-

tionality of State Laws Providing Employment Leave for

Pregnancy: Rethinking Geduldig After Cal Fed, 77 Cal. L.

Rev. 171, 176-77 (1989). After the act’s passage, the Ten-

nessee attorney general's office issued an opinion sug-

gesting that it might violate the equal protection clause.

Rather than expand the statute to include fathers, the Ten-

nessee legislature simply manufactured a different pur-

pose—“for pregnancy, childbirth, and nursing the infant,

where applicable”—to achieve the same result. Jd.

In addition to statewide laws, discriminatory leave poli-

cies were also implemented by individual state agencies.

For instance, prior to the FMLA, a number of state univer-

sities had discriminatory policies that provided infant care

leave to female employees only or otherwise unlawfully

® — See also The Family Medical Leave Act of 1991: Hearings on

S. 5 Before the Subcomm. on Children, Family, Drugs & Alcoholism

of the Comm. on Labor & Human Res., 102d Cong., ist Sess. 34

(1991) (remarks of Dr. T. Berry Brazelton) (recounting how Mas-

sachusetts parental leave bill was modified and limited to maternal

leave only); id. (remarks of Sen. Dodd) (responding by referencing

evolving notions of fathers’ role in family care).

differentiated between men and women.’ State employers’

collective bargaining agreements similarly restricted par-

enting leave to women only. See Parental and Medical

Leave Act of 1987: Hearings on S. 249 Before the Sub-

comm. on Children, Family, Drugs & Alcoholism of the

Comm. On Labor & Human Res., 100th Cong., Ist Sess.,

385 (1987) (testimony of Gerald McEntee).

State family leave policies that provide leave only to

women amount to “widespread intentional gender dis-

crimination by the states.” Hibbs, 273 F.3d at 859.* Such

state laws rely on and reinforce the gender-role stereo-

types of women as caregivers and men as breadwinners.

This Court has found that “[l]egislative classifications

which distribute benefits and burdens on the basis of gen-

der carry the inherent risk of reinforcing stereotypes about

the ‘proper place’ of women and their need for special

protection.” Orr v. Orr, 440 U.S. 268, 283 (1979). The

FMLA is intended to ensure that there is no discrimina-

tion based on assumptions of the “proper place” of men

and women.

? — From 1971-88, the University of Colorado provided up to two

semesters of maternity leave unrelated to pregnancy disability to

female faculty members only. Indiana State Univer-ity, the University

of Maryland, and the University of New Orleans also permitted only

female employees to take infant care leave unrelated to pregnancy dis-

ability. The University of Minnesota’s parental leave policy in the

early 1990s provided six weeks leave to both women and men, but

paid women for all six weeks and men for only four. See State uni-

versity policies (on file with Amer. Ass'n of Univ. Professors).

8 _ Local provisions have likewise been struck down. See, ¢.g.,

Schafer v. Board of Pub. Educ., 903 F.2d 243, 248 (3d Cir. 1990) (pro-

vision granting childrearing leave unrelated to physical disability to

mothers but not fathers violates Title VII); Chavkin v. Santaella, 81

A.D.2d 153, 157-58 (N.Y. App. Div. 1981) (city department permit-

ted only female employees to use sick leave to extend infant care

leave regardless of physical disability).

B. States Applied Discretionary Leave Policies Dif-

ferently For Women And Men

Before passage of the FMLA and state laws based

thereon, state leave policies were more often than not dis-

cretionary and applied in a discriminatory manner based

on traditional gender-role stereotypes even in instances

where the laws themselves were facially neutral. Of the

30 states in the Yale Bush Center survey that reported

offering parental leave, “[i]n nearly all cases, extended

leave was granted at the discretion of the supervisor.”

Makuen at 200. Congress recognized, and studies con-

firm, that where parental leave is granted at the discretion

of the employer, whether in the public or private sector,

male employees are less likely to be granted leave than

their female counterparts. See, e.g., H.R. Rep. No. 103-

8(II), at 11 (citing study of federal civil service finding

that supervisory discretion to grant leave results in “dif-

ferences between how men and women are treated”). This

finding was consistently reported to Congress in family

leave act hearings. See, e.g., 1986 Hearings at 147 (state-

ment of Washington Council of Lawyers) (“Parental leave

for fathers. . .israre. . . . Where child-care leave poli-

cies do exist, men. both in the public and private sectors,

receive notoriously discriminatory treatment in their

requests for such leave.”).°

° See also 1987 Hearings at 536 (statement of Professor Susan

Deller Ross) (“[T]here are a number of studies . . . in which it’s

shown that employers in this country that are giving family leaves to

their workers are not giving it non-discriminatorily, they are, by and

large, giving it only to women, not to men. It’s fairly flagrant dis-

crimination.”); Martin H. Malin, Fathers and Parental Leave, 72 Tex.

L. Rev. 1047, 1078 (1994) (“Catalyst found that sixty-three percent

of large employers considered it unreasonable for a man to take any

parental leave, and another seventeen percent considered parental

leave reasonable only if limited to two weeks or less. Even among

large employers providing parental leave, an amazing forty-one

percent considered it unreasonable for a man to actually use it.”);

Case law confirms that state employers applied dis-

cretionary leave policies in a discriminatory fashion. In

Knussman v. State of Maryland, 272 F.3d 625 (4th Cir.

2001), for instance, a Maryland state police officer and

new father challenged the application of a facially neutral

state statute that “permitted ‘primary care givers’ to ‘use,

without certification of illness or disability, up to 30 days

of accrued sick leave to care for [a] child. . . immedi-

ately following. . . the birth of the employee’s child.’ ”

Id. at 628 (quoting Md. Code Ann., State Pers. & Pens. ©

§ 7-508(a)(1) (1994)). Plaintiff’s request for “primary care

giver” status was denied by a state supervisor who

informed plaintiff that his wife would have to be “in a

coma or dead” for him to qualify as the primary care giver

under the statute. Jd. at 629-30 (internal quotations omit-

ted). The Fourth Circuit held that the state actor “applied

a facially neutral statute unequally solely on the basis of

a gender stereotype in violation of the Equal Protection

Clause of the Fourteenth Amendment.” Jd. at 634-35. The

state actor’s decision, the court found, “was a by-product

of traditional ideas about a woman’s role in rearing a

child.” Jd. at 639.

In addition to restricting family leave to women, state

employers acting in a discretionary fashion have applied

sex role stereotypes to deny women employment oppor-

tunities. For instance, one state employer refused to con-

sider a female employee for a promotion because of the

employer’s belief that the employee should stay at home

to care for her family. Moore v. Alabama State Univ., 980

F. Supp. 426 (M.D. Ala. 1997). The district court con-

Garrett v. Board of Trustees, 193 F.3d 1214, 1229 (11th Cir. 1999)

(Cook, J., dissenting in part) (“Congress found that, due to societal

perceptions regarding family roles, employers who offered leave time

to women discriminated against men with regard to that employment

benefit, either by not offering it, granting a shorter amount than was

made available to women, or discouraging men from taking it.”),

rev'd on other grounds, 531 U.S. 356 (2001).

cluded that the state official had unlawfully discriminated,

based on evidence that he told the plaintiff “that he could

not promote her because she was pregnant” and “that she

could not be considered for the promotion because she

was a married mother.” Jd. at 434. When leave is discre-

tionary and therefore de facto limited to women, employ-

ers, including states, are also likely to discriminate against

women because they have taken or are likely to take

leave. See Arkin v. Oregon, No. 6:96CV6327 (D. Or., filed

Dec. 19, 1996) (female allegedly denied tenure at state

university because she had taken maternity leave); Gar-

rett, 193 F.3d at 1229 (Cook, J., dissenting in part)

(“Congress also found that women experienced discrim-

ination. . . in that employers’ perceptions that women

served as caretakers and therefore were more likely to ask

for leave time contributed to a decreased willingness to

hire women in the first instance or promote them.”).

The FMLA places the decision as to whether to take

-family leave in the hands of the employee, and takes dis-

cretionary decisionmaking out of the hands of the state (or

private) employer, thereby eliminating the risk of dis-

criminatory treatment based on sex.

C. States Provided No Family Leave

1. States Had Not Enacted Family Leave Policies

Before Introduction of the FMLA

Petitioner argues that the FMLA cannot be justified as

a remedy for unconstitutional sex discrimination because

at the time the FMLA was passed, most states provided

employees with a remedy in the form of state family leave

laws. Pet. Br. at 4, 24, 32. Petitioner’s argument is belied

by the facts and by the FMLA’s legislative history. See,

e.g., H.R. Rep. No. 103-8(I), at 78 (“The debate on fam-

ily and medical leave suggests that many States have

already passed such leave benefits as are contained in

H.R. 2. Yet that is not the case.”). When family leave leg-

islation was initially proposed in Congress in 1985, not a

single state had a family leave law on its books enabling

employees to care for sick family members. That is the

environment in which Congress first considered the

FMLA. Congress heard testimony that the absence of

leave policies leads to sex discrimination in employment.

See, e.g., 1987 Hearings at 172 (“lack of uniform parental

and medical leave policies in the work place has created

an environment where discrimination is rampant”).'®

Numerous commentators agree."'

Far from being leaders in the area of family leave leg-

islation as the revisionist history of Petitioner and Amici

Alabama et al. suggests, every state that has passed a fam-

ily leave law has done so with awareness of and in

response to federal legislative activity. This fact is con-

firmed by the timing and substance of state leave laws, as

well as by the congressional record. Amici Alabama et al.

concede that state family leave laws were “essentially

modified versions of the FMLA legislation pending in

10 Congress also recognized that failure to afford family leave

negatively affects women’s position in the workplace because “the

primary responsibility for family caretaking often falls on women.”

29 U.S.C. § 2601(a)(5) (noting that “such responsibility affects the

working lives of women more than it affects the working lives of

men”); S. Rep. No. 102-68, at 28 (1991) (absence of family leave has

“adverse impact on women’s earnings”). While the Constitution may

not prohibit state conduct that has a disparate impact on women,

intentional state actions in the form of unconstitutionally discrimi-

natory laws perpetuated women’s roles as family caretakers. See Part

Ill, infra.

as See, e.g., Laura T. Kessler, The Attachment Gap: Employment

Discrimination Law, Women’s Cultural Caregiving, and the Limits of

Economic and Liberal Legal Theory, 34 U. Mich. J.L. Reform 372

(2001); Donna R. Lenhoff & Sylvia M. Becker, Family and Medical

Leave Legislation in the States: Toward a Comprehensive Approach,

26 Harv. J. on Legis. 403, 405-06 (1989); Lucinda M. Finley, Tran-

scending Equality Theory: A Way Out of the Maternity and the Work-

place Debate, 86 Colum. L. Rev. 1118, 1132 (1986).

Congress” or “targeted one or another of the leave issues

addressed in the FMLA.” Br. of Amici Alabama et al. at

11. In the FMLA’s legislative history, Congress likewise

noted that federal legislative efforts were the catalyst for

State proposals, observing that “[s]ince Federal family

leave legislation was first introduced, numerous States

have begun to consider similar family leave initiatives.”

See S. Rep. No. 103-3, at 20-21 (emphasis added).'”

The introduction of the Parental and Disability Leave

Act of 1985, supra, and a similar bill in 1986, H.R. 4300,

100th Cong. (1986), preceded the initiation of legislative

activity in the states. In fact, not a single state had passed

a bill providing for leave to care for ill family members

before 1987, after federal leave legislation had twice been

introduced. See, e.g., Steven K. Wisensale & Michael D.

Allison, An Analysis of 1987 State Family Leave Legis-

lation: Implications for Caregivers of the Elderly, 28 The

Gerontologist 779, 780 (Dec. 1988); Ira B. Sprotzer,

Parental and Family Leave Laws: A Review and Analysis,

in 15-4 Employee Benefits J. 12 (Dec. 1990); Family

Leave Activity Shifts to the States, 11-10 Employee Ben-

efit Notes 1-3 (Oct. 1990); see generally Appendix B

(summary of pre-FMLA state family leave laws). By

1987, only a handful of states enacted leave laws, and

these laws were limited in scope compared to the FMLA.

Only Connecticut had a statute permitting leave to care

12 See also H.R. Rep. No. 103-8(1), at 32-33; 1987 Hearings at

390 (“[I)}t is important for the federal government again to take the

lead on. . . family leave [because] States tend to follow the lead

. . Of the federal government, and if this example is held up by the

federal government and standards are set, then | really think Ken-

tucky, as other states, will fall in line and adopt parental leave poli-

cies.”) (remarks of Debra Spotts Merchant); id. at 339 (“[O]Jne of the

things that I have seen historically take place is that when a statute or

when a law emanates from the federal level that states generally fol-

low suit, . . . once it is initiated at the federal level it will trickle

down.”) (remarks of Martin Luther King, III).

for ill family members other than children, id., making it

the only state with a statute covering the leave available

under FMLA § 2612(a)(1)(C).

At the time the FMLA was passed in 1993, 22 states,

including Nevada, had not enacted any form of parental or

family leave legislation. See Appendix B; State Mater-

nity/Family Leave Law; H.R. Rep. No. 103-8(I), at 32-33.

In states that had passed some form of family leave law

by 1993, the scope of the laws varied widely, and many

fell short of the protections provided by the FMLA. Seven

states, in their family leave and maternity disability laws,

granted leave to female employees only, either explicitly

or effectively, for birth and adoption. Nearly half of these

laws failed to extend leave to care for sick family mem-

bers, as provided in FMLA § 2612(a)(1)(C). Eleven of

these laws covered only leave for births or adoptions. At

the time Congress passed the FMLA, then, only one-third

of the states had enacted non-discriminatory family leave

laws approaching the scope of the FMLA.

2. State Sick Leave Policies Did Not Provide

FMLA-Equivalent Family Leave

Contrary to the argument advanced by Amici Alabama

et al., states that permitted employees to use sick leave to

care for ill family members still could not be said to have

had “family leave” policies in place prior to the intro-

duction of the FMLA. Sick leave policies were not

designed to, nor did they, offer the range of benefits pro-

vided for in the FMLA. These policies fell short of the

FMLA in several respects.

First, the availability of sick leave was almost always

at the discretion of the supervisor. In some instances,

supervisory discretion was written into the policy. For

instance, the use of sick leave was permitted in Georgia

and Nevada only with a supervisor’s approval. See

Michele Lord & Margaret King, The State Reference

Guide to Work-Family Programs for State Employees 107,

115 (1991). In other cases, supervisory discretion resulted

from the intentionally vague language of the operative

provision. /d. at 33 (“By leaving the language vague, the

actual interpretations and decision-making responsibility

for allowing the use of sick leave in family situations lies

with [supervisors]. Supervisors’ sensitivity to the needs of

employees will ultimately determine the use and help-

fulness of these sick leave coverage policies.”). One of

the primary purposes of the FMLA is to avoid such dis-

cretionary decision-making concerning family leave, which

often results in discriminatory treatment based on sex.

Even after the introduction of the FMLA, a number of

states did not permit their employees to use sick leave to

care for ill family members. As of 1990, seven states

restricted the use of sick leave to employee illness only,

id. at 31-32, and none of these states had enacted family

leave laws between 1987 and 1990. As a result, as of

1990, employees of these seven states_did not have any

type of leave available to tend to ill family members.

Among those states that permitted employees to use

sick leave to care for ill family members, the scope of

coverage varied widely based on the definition of family

member. Jd. at 32. As of 1990, the majority of such states

(25) limited the use of sick leave to care for “dependents,”

defined as children or by the state’s tax code. Jd. One

State permitted the use of sick leave only to care for the

employee's “household members” or those for whom the

employee had “custodial responsibility.” Jd. at 32, 104-25.

Another four states restricted the use of sick leave to care

for “immediate family members.” Jd. Nine states simply

used the term “family member” to define the scope of

coverage, thereby requiring supervisors and others to

interpret the precise scope. /d. As of 1990, then, employ-

ees of fewer than half the states could use their sick leave

to care for ill family members other than children, and in

many cases access to leave depended on a supervisor's

interpretation of state policy.

Almost half of the states explicitly imposed short time

restrictions on the use of sick leave to care for ill family

members. Jd. (from 2 to 24 days, but most under 5 days).

Some states limited the number of sick days or hours per

year an employee could us« «© tend to ill family members.

For instance, state employees were eligible to take only 4

days per year in Arizona and Pennsylvania, and 40 hours

per year in lowa, North Dakota, and West Virginia. /d. at

105, 117, 119, 123. Other states limited the number of

sick days on a per occurrence basis, such as California

and Washington, where employees could take only 5 days

per illness. Jd. at 105, 119. The FMLA, on the other hand,

makes available up to twelve weeks of leave in the event

of a serious illness in the family.

Ill. A LONG HISTORY OF UNCONSTITUTIONAL

STATE-SPONSORED SEX DISCRIMINATION

ENFORCED SEX ROLE STEREOTYPES

In addition to discriminatory leave policies, various

forms of unconstitutional state laws—including manda-

tory maternity leave laws, protective wage and hour laws,

discriminatory death and incapacity benefit laws, unem-

ployment insurance laws, and jury eligibility laws—have

reinforced sex role divisions and have thus created the

need for the FMLA. These forms of blatant state-spon-

sored sex discrimination have been overturned by court

after court, but the limitations they created and perpetu-

ated have had lasting effects, confining women to the role

of family caretakers and hindering men from sharing fam-

ily care responsibilities. Discriminatory state laws accom-

plished this result not only by reinforcing stereotypes but

also by excluding women outright from certain forms of

employment; requiring certain women to play the role of

family caretakers; making it more expensive or difficult

for employers to hire women than men; and creating

incentives for women to undertake, and for men to abstain

from, family caretaking. These state laws required state,

local government, and private entities to discriminate

based on sex and have had a lasting impact on economic

realities and on attitudes about who should be at home

and at the workplace—both of which are redressed by the

FMLA.

This Court has long condemned discriminatory state

laws as unconstitutional and acknowledged that they per-

petuate gender role stereotypes. See, e.g., Miss. Univ. for

Women v. Hogan, 458 U.S. 718, 726 (1982); Craig v.

Boren, 429 U.S. 190, 198-99 (1976); Frontiero, 411 U.S.

at 684. Just as limiting admissions to state-supported

nursing schools based on the “old view that women, not

men, should become nurses” makes that assumption “a

self-fulfilling prophecy,” Hogan, 458 U.S. at 730, so do

state laws based on the-old assumption that women should

be caretakers perpetuate that reality. By enabling both

men and women to balance work and family care, the

FMLA remedies some of the damage created by these dis-

criminatory state laws which “serve([d] to ratify and per-

petuate invidious, archaic, and overbroad stereotypes,”

J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 131 (1994),

about the roles of women and men.

A. States Excluded Women From Jobs, Assuming

that Women Should Be Family Caretakers

Throughout the 19th and 20th centuries, states used a

variety of discriminatory laws to limit the professions in

which women could work. States prohibited women’s

employment in law, mining, jobs involving moving

machinery, establishments serving alcohol,'? and other

‘3 See, e.g., Goesaert v. Cleary, 335 U.S. 464 (1948) (Michigan

law); Sail’er Inn, Inc. v. Kirby, 485 P.2d 529 (Cal. 1971).

jobs.'* See generally 3 Lex K. Larson, Employment

Discrimination § 44.01 (2d ed. 2002); Edith L. Fisch &

Mortimer D. Schwartz, State Laws on the Employment of

Women 21-22 (1953). States kept a number of these pro-

hibitions in effect until recently. For instance, as of 1970,

ten states still forbade women from working in estab-

lishments serving alcohol; Alaska, Ohio and Pennsylva-

_ nia retained these prohibitions as late as 1980. 3 Larson

§ 44.01 n.24. Also as of 1970, fourteen states still pro-

hibited women from working in mines. Those laws

remained enforceable in four states as of 1980, id. § 44.01

n.29, and Arkansas’ law is still on the books. Ark. Code

Ann. § 11-7-318 (Michie 2001).

While state laws barring women from certain occupa-

tions persisted until recently, they were based on cen-

turies-old stereotypes about the role of women, including

the assumption that women should be in the home caring

for their families rather than at work. See, e.g., Bradwell

v. Illinois, 83 U.S. 130, 141-42 (1872) (Bradley, J., con-

curring) (upholding Illinois law excluding women from

practice of law because “the domestic sphere” is “that

which properly belongs to the domain and functions of

womanhood”); In re Goodell, 39 Wis. 232 (1875) (justi-

fying women’s exclusion from practice of law because

“(t]he law of nature destines and qualifies the female sex

for the bearing and nurture of the children of our race and

for the custody of the homes of the world”). The states’

conviction that women’s place was in the home was so

entrenched that in the 1930s, Massachusetts even

attempted to pass a law to exclude or remove all married

women from public service. In re Opinion of the Justices,

22 N.E.2d 49 (Mass. 1939) (finding proposed bills uncon-

4 See, e.g., Ridinger v. Gen’! Motors Corp., 325 F. Supp. 1089

(S.D. Ohio 1971) (Ohio law prohibiting women from working as sec-

tion hands, crossing watchmen, express drivers, and metal moulders),

rev'd on other grounds, 474 F.2d 949 (6th Cir. 1972).

stitutional, though not because they discriminated on the

basis of sex). Thus, female state employees were not

immune from the stereotypes that limited women’s

employment generally.'*

State laws excluding women from certain occupations

obviously limit women’s employment opportunities and

are plainly unconstitutional. This Court has long recog-

nized that “[n]Jo longer is the female destined solely for

the home and the rearing of the family, and only the male

for the marketplace and the world of ideas.” Stanton v.

Stanton, 421 U.S. 7, 14-15 (1975). But the attitudes fos-

tered by these discriminatory state laws continue to affect

behavior; indeed, these attitudes also underlay state dis-

crimination in family leave.

B. States Enacted Discriminatory Protective Laws

Limiting Women’s Employment Opportunities

and Confining Them to the Role of Caretakers

| Until less than thirty years ago, state laws further lim-

ited women’s employment opportunities by imposing a

variety of restrictions on the employment of women but

not men. States regulated the hours and times women

could work, imposing maximum hour and overtime

restrictions not applicable to men;'* the wages women

could earn, imposing minimum wage requirements not

'S States also unconstitutionally restricted women's employment

prospects by excluding them from institutions of higher learning. See,

e.g., United States v. Virginia, 518 U.S. 515 (1996); Faulkner v. Jones,

10 F.3d 226 (4th Cir. 1993); Kirstein v. Rector & Visitors of Univ. of

Va., 309 F. Supp. 184 (E.D. Va. 1970).

16 See, e.g., Radice v. New York, 264 U.S. 292 (1924); Miller v.

Wilson, 236 U.S. 373 (1915); Riley v. Commonwealth of Mass., 232

U.S. 671 (1914); Kane v. Egan, 14 Conn. Supp. 485 (1947); Ass'n

Indus. of Okla. v. Indus. Welfare Comm'n, 90 P.2d 899 (Okla. 1939);

State v. Ehr, 221 N.W. 883 (N.D. 1928); State v. Collins, 198 N.W.

557 (S.D. 1924); State v. Dominion Hotel, 151 P. 958 (Ariz. 1915),

aff'd, 249 U.S. 265 (1919); State v. Charles Schweinler Press, 108

applicable to men;'’ the weights women could lift, impos-

ing limits not applicable to men;'* and mandated days of

rest, meal and rest periods, and seating facilities not

required for men. See generally 3 Larson § 44.01.

These discriminatory state laws were extremely com-

mon and remained in effect well into the 1970s. The law

reporters teem with 1970s cases invalidating protective

laws for women under Title VII.'® In 1975, four states and

Puerto Rico still prohibited or regulated night work by

women; eight states still mandated meal periods for

women; and five states still mandated rest periods for

women. See Women’s Bureau, U.S. Dep’t of Labor, Bul-

letin 297, 1975 Handbook On Women Workers, at 338-39

(1975) (hereinafter “1975 Handbook”). At that time, fif-

N.E. 639 (N.Y. 1915); Stettler v. O'Hara, 139 P. 743 (Ore. 1914),

aff'd, 243 U.S. 629 (1917); W. C. Ritchie & Co. v. Wayman, 91 NE.

695 (Ill. 1910).

17 See, e.g., West Coast Hotel Co. v. Parrish, 300 U.S. 379

(1937); New Jersey Rest. Ass'n v. Holderman, 131 A.2d 773 (N.J.

1957); Vissering Mercantile Co. v. Annunzio, 115 N.E.2d 306 (Ill.

1953); Young v. Willis, 203 S.W.2d 5 (Ky. 1947); Strain v. Southerton,

62 N.E.2d 633 (Ohio App. 1945); McGrew v. Indus. Comm'n, 85 P.2d

608 (Utah 1938); Larsen v. Rice, 171 P. 1037 (Wash. 1918); see gen-

erally Topeka Laundry Co. v. Court of Indus. Relns., 237 P. 1041,

1046 (Kan. 1925) (listing statutes).

18 See, e.g., Weeks v. Southern Bell Tel. & Tel. Co., 408 F.2d 228

(Sth Cir. 1969); Manning v. Gen'l Motors Corp., 1971 U.S. Dist.

LEXIS 12108 (N.D. Ohio 1971) (collecting cases), aff'd, 466 F.2d

812 (6th Cir. 1972).

19 See, e.g., Stryker v. Register Publ’g Co., 423 F. Supp. 476 (D.

Conn. 1976); Homemakers, Inc. v. Div. of Indus. Welfare, 509 F.2d 20

(9th Cir. 1974); LeBlanc v. Southern Bell Tel. & Tel. Co., 333 F. Supp.

602 (E.D. La. 1971), aff'd, 460 F.2d 1228 (Sth Cir. 1972); Garneau v.

Raytheon Co., 323 F. Supp. 391 (D. Mass. 1971); Kober v. Westing-

house Elec. Corp., 325 F. Supp. 467 (W.D. Pa. 1971), aff'd, 480 F.2d

240 (3d Cir. 1973); Local 246 v. Southern Cal. Edison Co., 320 F.

Supp. 1262 (C.D. Cal. 1970).

teen states still had maximum hours laws for women. /d.

New Hampshire’s night work law was not repealed until

1989, and Pennsylvania’s until 1988. 3 Larson § 44.01

n.11. In 1964, 40 states regulated women’s hours in one or

more industries. 1975 Handbook at 329. Similarly, as of

1970, 41 states still limited work for women in one or

more industries; 45 states still required “appropriate seat-

ing” for women in certain jobs; and ten states and Puerto

Rico still imposed weight-lifting restrictions applicable

only to women. 3 Larson § 44.01. In 1953, 23 states had

women-only minimum wage laws in effect. Fisch &

Schwartz 24. Those laws were still enforced in Colorado,

Utah and Wisconsin in 1975. 1975 Handbook at 316.

These state protective laws were based in large part on

the old stereotype that women’s participation in the work-

force was secondary to their role as family caretakers. For

example, in upholding a women’s hours law, the Supreme

Court of California said that women had “household or

other domestic duties” that would occupy their time. Ex

Parte Miller, 124 P. 427, 429 (Cal. 1912), aff'd, 236 U.S.

373 (1915). As the Court explained almost a century ago,

there was “a widespread belief” that protective legislation

was justified based in large part on women’s “maternal

functions,” “the rearing and education of the children,”

and “the maintenance of the home.” Muller v. Oregon, 208

U.S. 412, 419-20 (1908). Countless state courts relied on

similar discriminatory reasoning to uphold laws imposing

restrictions on women’s employment.”

20 ‘See, ¢.g., State v. Ehr, 221 N.W. 883, 884 (N.D. 1928); State

v. Charles Schweinler Press, 108 N.E. 639, 640 (N.Y. 1915); State v.

Elerding, 98 N.E. 982, 984 (Ill. 1912); W.C. Ritchie & Co. v. Wayman,

91 N.E. 695, 697 (Ill. 1910); State v. Williams, 51 Misc. 383, 389

(N.Y. City Ct.), aff'd, 116 A.D. 379 (N.Y. Sup. Ct. 1906), aff'd, 81

N.E. 778 (N.Y. 1907); Wenham v. State, 91 N.W. 421 (Neb. 1902)

(upholding women’s hours law to ensure women’s ability to “bear[ |

their share of the burdens of the family and the home”); Strate v.

Buchanan, 70 P. 52, 54 (Wash. 1902); see generally Judith A. Baer,

These discriminatory state laws made the sex role

stereotypes on which they were based self-enforcing. This

Court has recognized, for example, that “prescribing of

minimum wages for women alone would unreasonably

restrain them in competition with men and tend arbitrar-

ily to deprive them of employment and a fair chance to

find work.” Morehead v. New York ex rel. Tipaldo, 298

U.S. 587 (1936). Similarly, maximum hour laws may

cause “an employer [to] refuse to hire a potential

employee, solely because of her sex, if, for example, he

requires his employees to work longer hours or periods

than are specified in” the law. Jones Metal Prods. Co. v.

Walker, 281 N.E.2d 1, 6 (Ohio 1972). These laws limited

women’s employment opportunities and caused employ-

ers to view them as less desirable employees.”' As courts

have recognized, protective laws also had an adverse

effect on women’s wages”’ and prevented women from

receiving promotions.”* “By denying that women were

The Chains of Protection: The Judicial Response to Women's Labor

Legislation 23-29 (1978).

a See, e.g., Rosenfeld v. Southern Pac. Co., 444 F.2d 1219 (9th

Cir. 1971) (employer refused to hire woman based on California

women’s hours and weight lifting laws); State v. Fairfield Cmtys.

Land Co., 538 S.W.2d 698 (Ark. 1976) (because of limitations on the

overtime women were allowed to work in Arkansas, “[i]t is fair to

assume that an employer might therefore decide to hire a man rather

than a woman, both being qualified”); 3 Larson § 44.01 n.34 (citing

1967 survey of 78 companies that “showed that state protective leg-

islation was the reason in 18 percent of the instances in which females

were rejected for employment”).

22s“ See, e.g., Corning Glass Works v. Brennan, 417 U.S. 188,

191-94 (1974) (situation in which state laws restricting women’s night

work had continuing effect on women’s wages after repealed).

23s See, e.g., Caterpillar Tractor Co. v. Grabiec, 317 F. Supp.

1304, 1306 (S.D. Ill. 1970) (“[f]Jemale employees . . . [weJre not

receiving their share of overtime hours and [we]re not receiving

assignments or promotions to jobs normally requiring the performance

full-fledged, equal wage earners, [protective] legislation

institutionalized social reproduction as women’s primary

role.” Alice Kessler-Harris, Out to Work: A History of

Wage-Earning Women in the United States 212 (1982).

Conversely, these laws also cemented men’s role in the

workplace rather than the home, by, for example,

“impos[ing] primarily upon the male employees the bur-

dens of [certain forms of] work.” Caterpillar Tractor, 317

F. Supp. at 1306. These laws thus made it more difficult

for men to share the burdens of family care. In short, for

over two centuries, states enacted and enforced laws that

are plainly unconstitutional under current standards and

perpetuated the stereotype that women are primarily fam-

ily caretakers and men primarily breadwinners.

C. States Enacted Other Discriminatory Laws That

Reinforced Gender-Role Stereotypes and Encour-

aged Women to Remain Family Caretakers

1. Benefits for Male Workers Only

Until the 1980s, state laws continued to discriminate

against women workers on the assumption that their

employment was secondary. For example, state laws pro-

viding that widows, but not widowers, would automati-

cally receive workers’ compensation or other benefits at

the death of a spouse unconstitutionally presumed that

women were dependent on their husbands’ incomes. Most

of these statutes were not struck down until the 1980s,”

even though for several decades prior, “more often than

of work for overtime hours in excess of those permitted by” Illinois

law); see also 3 Larson § 44.01 (state protective laws “tended to ban

women from a disproportionate number of these more lucrative

jobs”).

24 See, e.g., Wengler v. Druggists Mut. Ins. Co., 446 U.S. 142

(1980) (Missouri law); Portman v. Steveco, Inc., 453 N.E.2d 284 (Ind.

Ct. App. 1983); Swafford v. Tyson Foods, Inc., 621 S.W.2d 862 (Ark.

App. 1981); Hess v. Wims, 613 S.W.2d 85 (Ark. 1981).

not a family’s standard of living depend[ed] upon the

financial contributions of both marital partners.” Arp v.

Workers’ Comp. Appeals Bd., 19 Cal. 3d 395, 405 (Cal.

1977) (internal citations omitted). 7

Based on archaic assumptions of “female economic dis-

ablement,” Tomarchio v. Greenwich Township, 379 A.2d

848, 853 (N.J. 1977), these laws were justified on the

grounds that it was more efficient to presume dependency

in the case of women but not men.” As a result, female

employees received fewer benefits than males, making it

more economically rational for men to become the pri-

mary breadwinners in the family.** This Court has rec-

ognized that “this kind of discrimination against working

women” is unconstitutional and perpetuates the stereotype

that men are the primary breadwinners in the family.

Wengler, 446 U.S. at 148; see also Weinberger v. Wiesen-

feld, 420 U.S. 636 (1975).

2. Presumption in Unemployment Insurance

Law that Women are Caretakers

Until recently, states enacted and enforced unemploy-

ment compensation laws that discriminated against women

by automatically presuming that pregnant women or women

who had recently given birth could not work.”’ Notably,

25 See, e.g., Arp, 19 Cal. 3d at 404 (noting that “widow's con-

clusive presumption of total dependency has survived essentially

unchanged since the enactment of the first detailed set of workers’

compensation statutes”).

26 _—«sIn other words, state laws also hindered men from becoming

family caretakers. Another way in which state laws accomplished this

is through presumptions that unwed fathers are unfit to raise their

children. See, e.g., Stanley v. Illinois, 405 U.S. 645 (1972) (Illinois

law).

27 ‘See, e.g., Turner v. Dep't of Empl. Sec., 423 U.S. 44 (1975)

(per curiam) (Utah law making pregnant women ineligible for unem-

ployment benefits for 12 weeks before and 6 weeks after child birth);

many of these statutes assumed that women were unable

to work for a period of time after childbirth, presumably

because they had to care for their children. For example,

based on an assumption that women were unable or

unwilling to work for an indefinite period after childbirth,

a Colorado statute made women ineligible for unem-

ployment insurance after the conclusion of their preg-

nancies unless, after giving birth, they spent thirteen

weeks in full-time employment. See Sylvara v. Indus.

Comm'n, 550 P.2d 868, 869 (Colo. 1976) (finding statute

unconstitutional).

Based on those assumptions, women were routinely

held ineligible for unemployment benefits when they were

willing and able to work despite the fact that similarly sit-

uated men were eligible. These laws thus created eco-

nomic incentives for women and not men to undertake

family care responsibilities because in the event the pri-

mary breadwinner lost his or her job, only the man could

receive unemployment benefits. This Court has repeatedly

criticized state laws based on a preference for “an allo-

cation of family responsibilities under which the wife

plays a dependent role,” Orr, 440 U.S. at 279 n.9, and has

held unconstitutional conclusive presumptions of women’s

UAW v. Johnson, 674 F.2d 1195 (7th Cir. 1982) (Indiana statute pre-

suming women are unable to work 13 weeks before and 4 weeks after

child birth); Gonzales v. Texas Empl. Comm'n, 486 F. Supp. 278 (S.D.

Tex. 1977) (Texas policy denying benefits to women in last trimester

of pregnancy and for 6 weeks after delivery), aff'd, 614 F.2d 1295

(Sth Cir. 1980); Conn. Nat’l Org. for Women v. Peraro, No. N77-477,

1980 WL 212, at *1 (D. Conn. Apr. 8, 1980) (consent decree forbid-

ding state agencies from declaring, inter alia, women with young chil-

dren not yet in childcare as unable to work); Utah Code Ann.

§ 35-4-S(h)(1) (1974) (amended 1976) (women disqualified from

unemployment benefits during 18-week period before and after child-

birth); cf. Boren v. Dep't of Empl. Dev., 59 Cal. App. 3d 250 (1976)

(law denying unemployment compensation to workers who left their

job for “domestic reasons”).

inability to work before and after pregnancy. Turner, 423

U.S. 44 (1975).

3. Mandatory Maternity Leave for Women Only

State laws also kept women out of the workplace and in

the home by requiring women to take maternity leave dur-

ing and after pregnancy, often without job security. As of

1953, Connecticut, Massachusetts, Missouri, New York,

and Vermont had statutes outright prohibiting the employ-

ment of women before and after childbirth. Fisch &

Schwartz 22. Vermont’s law was not repealed until 1969,

and Massachusetts’ until 1974. Vt. Stat. Ann. tit. 21,

§ 444 (1947) (repealed 1969); Mass. Gen. Laws ch. 345

(1911) (repealed 1974). To this day, New York has a

mandatory maternity leave law on the books. N.Y. Lab.

Law § 206-b (McKinney 1973) (forbidding employment

of women in factories or mercantile establishments within

four weeks of childbearing). In addition to state manda-

tory maternity leave laws, state agencies had mandatory

maternity leave policies for their female employees. See,

e.g., Schattman v. Texas Empl. Comm'n, 459 F.2d 32, 40-

41 (Sth Cir. 1972) (upholding mandatory maternity leave

policy of Texas state agency and noting that other Texas

agencies have similar policies).

This Court has held unconstitutional mandatory mater-

nity leave policies similar to those adopted by the states.

Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632 (1974).

Not only do such policies limit the workforce participa-

tion, including in state employment, of childbearing

women, but they also make all women vulnerable to

workplace discrimination. Congress recognized that “the

assumption that women will become pregnant and leave

the labor market is at the core of the sex stereotyping

resulting in unfavorable disparate treatment of women in

the workplace.” S. Rep. No. 331, at 3 (1977).

4. Jury Service for Men Only

Until recently, state laws systematically excluded or

exempted women from jury service largely because of an

assumption that women had to care for their families. In

1961, less than half of the states considered women for

jury selection on the same basis as men. See Hoyt v.

Florida, 368 U.S. 57, 63 & nn.5-8 (1961) (listing state

statutes); see generally J.E.B., 511 U.S. at 131-34 (dis-

cussing history of women’s exclusion from jury service).

Many of these state laws explicitly exempted women but

not men who had to care for sick family members. For

example, Connecticut’s jury service statute excused any

woman who was “nursing a sick member of her family, or

who has care of one or more children under the age of six-

teen years.” Conn. Gen. Stat. § 51-218 (1953) (repealed

1975). Similar provisions existed in other states.”* As late

as 1980, 21 states still exempted women but not men for

family responsibilities, see Joanna L. Grossman, Note,

Women's Jury Service: Right of Citizenship or Privilege of

Difference ?, 46 Stan. L. Rev. 1115, 1138 (1994), despite

the fact that this Court held that such laws violate the

Sixth Amendment in Taylor v. Louisiana, 419 U.S. 522

(1975).

The states’ discriminatory jury service laws were based

in large part on the belief that women were “the center of

home and family life” and therefore had “special respon-

sibilities.” Hoyt, 368 U.S. at 61-62. Numerous state courts

relied on similar stereotypes to uphold such laws. For

instance, the Virginia Supreme Court found that the state

28 See, e.g., Fla. Stat. ch. 40.01(1) (1967) (amended 1979)

(exempting mothers with children under 18); Mass. Gen. Laws ch.

234 § 1 (1949) (amended 1973) (exempting mothers of and women

with custody of children under 16); N.C. Gen. Stat. § 9-19 (1951)

(repealed 1967) (exempting women who care for children under 12 or

ill family members); Tex. Rev. Civ. Stat. Ann. art. 2135 (1964)

(repealed 1985) (excluding women with custody of children under 16).

had “a substantial interest in the care of children and per-

sons with mental or physical impairments, and the statutes

reflect a reasonable recognition by the legislature that

women are usually the persons who perform such ser-

vice.” Archer v. Mayes, 194 S.E.2d 707, 710 (Va. 1973).

The Louisiana Supreme Court upheld a law “established,

obviously, to foster and encourage woman’s role as

mother and the mainstay of family life.” State v. Wash-

ington, 272 So. 2d 355, 357 (La. 1973).

As this Court acknowledged, stereotypes like those in

the jury laws “are likely to stigmatize as well as to per-

petuate historical patterns of discrimination.” J.E.B., 511

U.S. at 140 n.11. These state laws not only kept women

from participating in an area of public life based on the

assumption that women should care for their families,

they also precluded men from assuming greater family

caretaking responsibilities by not excusing them on the

same basis. In other words, they perpetuated the notion

that women should serve as family caretakers and that

men need not.

CONCLUSION

For the foregoing reasons, Amici Curiae respectfully

urge that this Court affirm the decision below.

29 See also State v. Parker, 462 S.W.2d 737, 740 (Mo. 1971);

Dekosenko v. Brandt, 313 N.Y.S.2d 827, 830 (N.Y. Sup. Ct. 1970),

aff'd, 318 N.Y.S.2d 915 (App. Div. 1971); State v. Comeaux, 211 So.

2d 620, 622 (La. 1968); Scott v. State, 207 So. 2d 493, 496 (Fla.

1968); State v. Hall, 187 So. 2d 861, 868 (Miss.), appeal dismissed,

385 U.S. 98 (1966); cf Duren v. Missouri, 439 U.S. 357 (1979).

Respectfully submitted,

CONRAD K. HARPER ISABELLE KATZ PINZLER

WILLIAM T. RUSSELL, Jr. Counsel of Record

ELAINE M. DIVELBLISS JENNIFER K. BROWN

AMANDA T. PEREZ

SIMPSON THACHER

WENDY R. WEISER

NOW LEGAL DEFENSE

& BARTLETT AND EDUCATION FUND

425 Lexington Avenue 395 Hudson Street

New York, New York 10017 New York, New York 10014

(212) 455-2000 (212) 925-6635

Counsel for Amici Curiae

October 25, 2002

APPENDIX A

A-l

AMICI CURIAE

Alice Kessier-Harris is the R. Gordon Hoxie Professor

of American History at Columbia University. Professor

Kessler-Harris has written extensively on the history of

women in the American labor force. Her publications

include Out to Work: A History of Wage-Earning Women

in the United States (Oxford 1982); A Woman's Wage:

Historical Meanings and Social Consequences (Ken-

tucky 1990); Women Have Always Worked: A Historical

Overview (Feminist Press 1981); and most recently, Jn

Pursuit of Equity: Women, Men and the Quest for Eco-

nomic Citizenship in the United States (Oxford 2002),

which won the Bancroft Prize and the Herbert Hoover

Presidential Book Award.

Linda K. Kerber is the May Brodbeck Professor of

Liberal Arts and Professor of History at the University

of lowa. Professor Kerber is a member of the American

Academy of Arts and Sciences as well as the Society of

American Historians, and has served as president of the

Organization of American Historians (1997) and the

American Studies Association (1988). She has written

extensively on women’s rights and women’s roles in

American history, and her publications include No Con-

stitutional Right to be Ladies: Women and the Obliga-

tions of Citizenship (Hill & Wang 1998), which was the

winner of the Littleton Griswold Prize for best book in

American legal history and the Joan Kelley Prize for the

best book in women’s history, both awarded by the

American Historical Association.

Mimi Abramovitz is a professor of Social Policy at the

Hunter College School of Social Work, City University

of New York, and the University Graduate Center, City

University of New York. Professor Abramovitz has pub-

A-2

lished numerous works on the topic of women and pub-

lic policy, including Regulating the Lives of Women:

Social Welfare Policy From Colonial Times to the Pre-

sent (South End Press 2d ed. 1996) and Under Attack,

Fighting Back: Women and Welfare in the United States

(Monthly Review Press 2d ed. 2000).

Eileen Boris is the Hull Professor of Women’s Studies

at the University of California—Santa Barbara. Professor

Boris is the Director of the Center for Research on

Women and Social Justice at the University of Califor-

nia, Santa Barbara and the co-principal investigator of

“Women Working for Economic Justice: A Collaborative

Project.” Among Professor Boris’s published works on

the history of women in the American workplace are

Home to Work: Motherhood and the Politics of Industrial

Homework in the United States, which won the Philip

Taft Prize in Labor History in 1995; “Social Citizenship

and Women’s Right to Work in Post-War America,” in

Women’s Rights and Human Rights: International His-

torical Perspectives (Patricia Grimshaw, Katie Holmes

& Marilyn Lake eds., Palgrave 2001) (co-written with

Sonya Michel); and “The Right to Work is the Right to

Live! The Rights Discourse of Fair Employment,” Two

Cultures of Right: The Quest for Inclusion and Partici-

pation in Modern America and Germany (Manifred Berg

& Martin Geyser eds., German Historical Institute &

Cambridge Univ. Press 2002).

Ardis Cameron is an associate professor of American

and New England Studies at the University of Southern

Maine. Professor Cameron is a member of the American

Studies Committee on Women, a 2002 recipient of a

John Simon Guggenheim Fellowship and a 2001 recip-

ient of a National Endowment for Humanities Senior

Research fellowship. Her publications include Radicals

A-3

of the Worst Sort: Laboring Women in Lawrence, Mas-

sachusetts (Univ. of Illinois Press 1993) and Looking for

America: The Visual Making and Remaking of Nation

and People.

Darlene Clark Hine is the John A. Hannah Professor

of History at Michigan State University. Professor Hine

is Past-President of the Organization of American His-

torians and President-Elect of the Southern Historical

Association. Her publications include: Black Women in

America: An Historical Encyclopedia (Oxford Univ.

Press 2d ed. 2003) (editor),.Black Women in White:

Racial Conflict and Cooperation in the Nursing Pro-

fession, 1890-1950 (Indiana Univ. Press 1989), and

Black Victory: The Rise and Fall of the White Primary in

Texas (Univ. of Missouri Press 2d ed. forthcoming

2003).

Patricia A. Cooper is an associate professor of History

and Women’s Studies at the University of Kentucky. She

is on the Board of Directors of the Labor and Working

Class History Association. Professor Cooper has written

extensively on issues regarding race and gender in the

workplace. Her publications include Once a Cigar

Maker: Men, Women and Work Culture in American

Cigar Factories; “ ‘Masculinist Vision of Useful Labor’:

Popular Thinking on Women and Work in the United

States, 1830-1940;” and “The Faces of Gender: Work

and Work Relations at Philco., 1928-1938” in Work

Engendered, Toward a New History of American Labor

(Ava Baron ed., Cornell Univ. Press 1991).

Jane Sherron DeHart is a professor of History at the

University of California-Santa Barbara. Professor

DeHart will be publishing a book tentatively entitled

Ruth Bader Ginsburg and the Struggle for Equality

(forthcoming 2004), which discusses the Equal Protec-

A-4

tion Clause as a tool to eradicate sex-based discrimina-

tion.

Jacquelyn Dowd Hall is Julia Cherry Spruill Professor

of History at the University of North Carolina at Chapel

Hill. Among Professor Hall’s publications in the area of

gender and racial discrimination are Revolt Against

Chivalry: Jessie Daniel Ames and the Women’s Cam-

paign Against Lynching (1979) and “ ‘The Mind That

Burns in Each Body’: Women, Rape, and Racial Vio-

lence,” in Powers of Desire: The Politics of Sexuality

(Ann Snitow et al. eds. 1983).

Ellen Carol DuBois is a professor of History at the

University of California-Los Angeles. Professor DuBois

is the author of numerous books on the history of Amer-

ican Women, including Feminism and Suffrage: The

Emergence of an Independent Women's Movement in

America, 1848-1869 (Cornell Univ. Press 1978) and

Harriot Stanton Blatch and the Winning of Woman

Suffrage (Yale Univ. Press 1997).

Anne Firor Scott is the W.K. Boyd Professor of His-

tory Emerita at Duke University. She is the former pres-

ident of both the Organization of American Historians

and the Southern Historical Association. Professor Scott

has written extensively on the history of American

women, and particularly on the parallel lives of black

and white women. Her writings include Making the

Invisible Woman Visible (Univ. of Illinois Press 1984);

Natural Allies: Women’s Associations in American His-

tory (Univ. of Illinois Press 1992); and Unheard Voices:

The First Historians of Southern Women (Univ. Press of

Virginia 1993).

Estelle Freedman is the Edgar E. Robinson Professor

of United States History at Stanford University. Pro-

A-5

fessor Freedman’s research and teaching focuses on

United States women’s history. She is the author of No

Turning Back: The History of Feminism and the Future

of Women (Ballantine Books 2002), among numerous