Opposition Brief — University of Texas Health Science Center v. Siler-Khodr

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No. 02-253 i

In the Supreme Court of the United States

UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER AT

SAN ANTONIO, PETITIONER

VU.

_THERESA M. SILER-KHODR, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

THEODORE B. OLSON

Solicitor General

Counsel of Record

RALPH F. BoyD, JR.

Assistant Attorney General

JESSICA DUNSAY SILVER

KEVIN RUSSELL

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTION PRESENTED

The United States will address the following ques-

tion:

Whether Congress acted within its power under

Section 5 of the Fourteenth Amendment in abrogating

the States’ sovereign immunity from suit under the

Equal Pay Act of 1963, 29 U.S.C. 206(d).

(I)

TABLE OF CONTENTS

Page

Opinions below 1

Jurisdiction ; 1

Statement ... hahaa , se 1

Argument ........ ‘ 4

SES EEE NTO ae OC aE TTT 30

TABLE OF AUTHORITIES

Cases:

Abril v. Virginia, 145 F.3d 182 (4th Cir. 1998) ..........0000 8,9

Ambus v. Granite Bd. of Educ., 995 F.2d 992 (10th

lt hea cannebneenanhnnnonnemiennnenes 26

Anderson v. State Univ. of N.Y., 169 F.3d 117

(2d Cir. 1999), vacated, 528 U.S. 1111, on remand,

107 F. Supp. 2d 158 (N.D.N.Y. 2000) .....ccccscsessssesseesensesenes 9-10

Belanger v. Madera Unified Sch. Dist., 963 F.2d

248 (9th Cir. 1992), cert. denied, 507 U.S. 919

(1993) ... ion 25

Board of Educ. of Oak Park v. Kelly E., 207 F.3d

931 (7th Cir.), cert. denied, 531 U.S. 824 (2000) .............. ” 8

Board of Trs. v. Garrett, 531 U.S. 356 (2001) ......... 4, 5, 6, 10,

11, 14, 26, 27, 29

Catlett v. Missouri Highway & Transp. Comm’n,

828 F.2d 1260 (8th Cir. 1987), cert. denied, 485

U.S. 1021 (1988) ‘saunas 27

City of Boerne v. Flores, 521 US. 507 (1997) .. 5, 10, 28, 29

City of Cleburne v. Cleburne Living Ctr., Ine, i.

WTB UB. GOR (IGG) ceeeinestesinnninannscsosenssecsssoncnssncnsnvensevensnsnsones 14

Corning Glass Works v. Brennan, 417 U.S. 188

(UGTA) ....ocrecrvsnsovscesserensniosnsuesonsnscneveevensenensensneenssnsconsaneseonsoosoes 27, 28

Counsel v. Dow, 849 F.2d 731 (2d Cir.), cert. denied,

GE Ue. GG CD ceiccscceninesnnesienisosocnnccncenvecsnocsevoseseraseononowese 9

County Wi Washington v. Gunther, 452 U.S. 161

RIED taiihicnnechanneebintiounienkinatcieitninndiemnanianeveinneneinensonsinsmnemnsoes 27

(IIT)

IV

Cases—Continued: Page

Craik v. Minnesota State Univ. Bd., 731 F.2d

SA Ae. SEED cccitesitsinnrninirensviimncieniinain 27

Crawford v. Davis, 109 F.3d 1281 (8th Cir. 1997) ............ 9

Cross v. Alabama, 49 F.3d 1490 (11th Cir. 1995) ............ 27

Duke v. Grady Mun. Schs., 127 F.3d 972 (10th Cir.

TIED sdcecensiestnsintaniniins 25-26

EEOC v. Wyoming, 460 U.S. 226 (1983) 6

Fitzpatrick v. Bitzer, 427 U.S. 445 (1976) s

Florida Prepaid Postsecondary Educ. Expense

Bd. v. College Sav. Bank, 527 U.S. 627 (1999) .......... 6-7, 29

Franks v. Kentucky Sch. for the Deaf, 142 F.3d

Rs Ce Fe eietinnieicisvinsiciniinitttaienneninncticiainniain 9

Frontiero v. Richardson, 411 U.S. 677 (1973) ..........+ 12, 13

Fullilove v. Klutznick, 448 U.S. (1980) .........ccsccccsceseeseeee 15

. Harris v. Tooele County Sch. Dist., 471 F.2d 218

COR CA: TI Nivbidkiatenicisiicirstniientitienens 26

Hundertmark v. Florida Dep’t of Transp., 205 F.3d

1272 (11th Cir. 2000) - - 9

Illinois State Univ. v. Varner, 533 U.S. 902

(2001) + 5

J.E.B. v. Alabama, 511 U.S. 127 (1994) .......... 11, 12, 13, 26

Katzenbach v. Morgan, 384 U.S. 641 (1966) ..........sssssee 29

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

(2000) ....... .. 4,5,7,8, 10, 13, 14

Kirchberg v. Feenstra, 450 U.S. 455 (1981) 26

Kovacevich v. Kent State Univ., 224 F.3d 806

(6th Cir. 2000) - 9

Lathem v. Department of Children & Youth

Servs., 172 F.3d 786 (11th Cir. 1999) 27

Lopez v. Monterey County, 525 U.S. 226 (1999) ............ 29

Martinez v. Board of Educ. of Taos Mun. Sch.

Dist., 748 F.2d 1393 (10th Cir. 1984) 25-26

Cases—Continued: Page

Massachusetts Bd. of Ret. v. Murgia, 427 U.S. 307

CRIED innsiscsancinisiicctelpsncitciciiigniiiaieniiiamssaniitpanlbiiaiadiaiuiapualinaieia 13-14

Mils v. Maine, 118 F.3d 37 (1st Cir. 1997) 0.0... sceceseees 9

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

FED CORED cvcenesninrsivnsceninsciinininiiinnianianitioniaibitaiaeeitaniniiens 11, 12, 13

Mt. Healthy City Sch. Dist. Bd. of Educ. v.

Doyle, 429 U.S. 274 (1977) sinsitbeiieesveaiivaiaiiies 25

Nicks v. Missouri, 67 F.3d 699 (8th Cir. 1999) ................ 27

O'Sullivan v. Minnesota, 191 F.3d 965 (8th Cir.

1999) .... ssinlighlcniaiiiidanindetibitieiinaanie g

Oregon v. Mitchell, 400 U.S. 112 (1970) oo... escsssseseeeeees 29

Oregon Short Line R.R. v. Department of Revenue,

189 F'.3d 1259 (Sth Cir. 1998) ............cececsssscsrecssssssessseserersees 9

Personnel Adm’r of Mass. v. Feeney, 442 U.S. 256

CITED ccnvsexinisteinsienesssnnnssiianniintsinncdinantininansbindabihisiiuiniivinaint 11

Reed v. Reed, 404 U.S. 71 (1971) ........ccescsssssesescsecesesseenes 27

Rosenfeld v. Montgomery County Pub. Schs., 41

5. Sea. DRUGS CE: BG BOON cercsercinsvisientneniiciirnninnneiniin 25

Seminole Tribe v. Florida, 517 U.S. 44 (1996) .........sssse00 3,5

South Carolina v. Katzenbach, 383 U.S. 301

, (TOGG) .....ccecccsverrerveenercconensveneoascessonscnsonesssossensessoesonsoesoevees 28, 29, 30

Stanton v. Stanton, 421 U.S. 7 (1975) .. ‘a 26

Sweeney v. Board of Trs. of Keene State Coll.,

604 F.2d 106 (1st Cir. 1979), cert. denied, 444 U.S.

1045 (1980) we 27

Taylor v. Louisiana, 419 U.S. 522 (1975) uu... sessseessseeeees 27

Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S.

OE CED excvieceniniitsincsiensininininnniensniniaeitsniamnaniisieanaicaanimeteae 28

Thomas v. Texas Dep’t of Criminal Justice, 220

F.3d 389 (5th Cir. 2000) siniiesetissiidiejletiiniiatceapeiiendiin 27

Timmer v. Michigan Dep’t of Commerce, 104 F.3d

SB (OUR Cr. TBD) onsvccccensenesecenosensacceconsensucsnvescnessnsvonseesaosenve 10

Union Pac. R.R. v. Utah, 198 F.3d 1201 (10th Cir.

SE. cetrnsicssnnanneniiviniieeiiviniaiapmatitiians . 9

United States v. Harris, 106 U.S. 629 (18838) ...........scss00 6

VI

Cases—Continued: Page

United States v. Moghadam, 175 F.3d 1269 (11th

Cir. 1999), cert. denied, 529 U.S. 1036 (2000) ...........s0000 9

United States v. Virginia, 518 U.S. 515 (1996) ........... 11, 12,

13, 26

United Steelworkers of Am. v. Weber, 443 U.S. 193

(1979) ..... iciieeneinieniiniinnitinnas R ~

Usery v. Allegheny County Inst. Dist., 544 F.2d

148 (3d Cir. 1976), cert. denied, 430 U.S. 946 (1977) ....... 10

Usery v. Charleston County Sch. Dist., 558 Fad

1169 (4th Cir. 1977) ....... sinutinhasegnsietenianinemiainadinantiaintinn 9, 10

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

cert. dismissed, 526 U.S. 1013 (1999) nna 10

Varner v. Illinois State Univ., 226 F.3d 927 (7th

Cir. 2000), cert. denied, 533 U.S. 902 (2001) ........scseseeee 9, 24

Wheeling & Lake Erie Ry. v. Public Util. Comm'n,

141 F.3d 88 (3d Cir. 1998), cert. denied, 528 U.S.

GB CIBBD) scarcesrescsernsscittenss 8-9

White v. New Hampshire Dep't of Corrs., 221 F.3d

SHG Chak Gier.. GEG cnencenenicinins 27

Woods v. Cloyd W. Miller Co., 333 U.S. 138

(1948) .... 6

Constitution and statutes:

U.S. Const.:

Art. I, § 8, Cl. 3 (Commerce Clause) ............. ~ 8,4,5,7,8

Amend. V (Just Compensation Clause) ..........sssssseresesees 7

AWAD, ZI cerccsccevecserscescesveveconevessonne 25, 26, 30

Amend. XIV ......csessesseeses m 3, 5, 8, 23, 28, 29

§ 5 (Enforcement Clause) ..... - passim

Due Process Clause 7

Equal Protection Clause 4, 10, 18-19, 30

Age Discrimination in Employment Act of 1967,

29 U.S.C. 621 et seq. 7

Civil Rights Act of 1964, Tit. VII, 42 U S.C. 2000e

et seq. passim

VII

Statutes—Continued: Page

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

92-318, Tit. IX, §§ 901-907, 86 Stat. 373-375 oo... 15

Equal Employment Opportunity Act of 1972, Pub. L.

INO. GB-BEL, § 2B, GE Gtat. 1OB nceccesacresccsscccersecreseveeresevessseseces 15

Equal Pay Act of 1963, 29 U.S.C. 201 et seq.:

Pate OU seterrssinnscncnticecninttcenniosinnantasiennniemitatiiciabiaiian 1, 2,4

29 U.S.C. 206(d) (Supp. V 1968) .......cccsscsssssessessesssessesseesseene 1

ee Se seitiincincibientatestieeeciiataliataiaaaaiaa ine 27

a a IID iiciassitcasedindieiebidipeiiantinitiniaesehteasiicebiteadi, 28

Fair Labor Standards Act of 1938, 29 U.S.C. 201

Ni eee ae 1

Fair Labor Standards Amendments of 1974, Pub. L.

es CE Ge ts OD chtcsincatincsstteisinteniennitantinsinsiiitmnansen 2,15

Voting Rights Act of 1965, § 5, 42 U.S.C. 1978¢ veces

SP A BIEN scesinestsssesiiirsieiersnnhasceneenttiananincaniitininnis

Miscellaneous:

Ls ; | a

118 Cong. Rec. (1972):

Oe sesnenvonscassemneonecsseenessess

SPs ERIE sassicsssesessesteentnscnensspubntenisninenensiensneeisiimapentiaiteemsstensniatnis

p. 1840 .. scosvensenssncnsnsusentoenssnsucsssesseseancss

IR, TIE ceseenestssnsssesensinurenintanininstinmnnstien seénenceneetmenionnasns

p. 3936 - sscnccesnneonensenee

pp. 4817-4818 sinesaneunveesageuscupuennscestonneessnenencesnncsesessens 21,

ID URI cctevesnssesstersonicinsinsssrsnisonshatatinnpasaisnesinadpenasnentiieseaniontin

p. 5804 seovevecoveccccvccseeee 21,

pp. 5804-5805

p. 5805

BBESSRERBRBS B

Discrimination Against Women: Hearing Before the

Special Subcomm. on Educ. of the House Comm. on

Educ. and Labor, 91st Cong., 2d Sess. (1970) ....... 16, 18, 19

20, 21, 22, 23

Vill

Miscellaneous—Continued: Page

Economic Problems of Women: Hearings Before the

Joint Econ. Comm., 93d Cong., 1st Sess. (1973) ...... 15, 16

Equal Employment Opportunities Enforcement

Act: Hearings Before the Subcomm. on Labor of

the Senate Comm. on Labor and Pub. Welfare,

91st Cong., lst Sess. (1969) 16, 19

Equal Employment Opportunities Enforcement -

Act of 1971: Hearings Before the Subcomm. on

Labor of the Senate Comm. on Labor and Pub.

Welfare, 92d Cong., Ist Sess. (1971) 16, 26

Equal Employment Opportunity Enforcement

Procedures: Hearings Before the Gen. Subcomm.

on Labor of the House Comm. on Educ. and

Labor; 91st Cong., Ist & 2d Sess. (1969-1970) ...........0... 16

Equal Employment Opportunity Enforcement

Procedures: Hearings Before the Gen. Subcomm.

on Labor of the House Comm. on Educ. and Labor, ~

92d Cong., 1st Sess. (1971) 16, 18

Equal Rights for Men and Women 1971: Hearings

Before Subcomm. No. 4 of the House Comm. on

the Judiciary, 92d Cong., Ist Sess. (1971) ............ 15, 17, 19,

Fair Labor Standards Amendments of 1971:

Hearings Before the Subcomm. on Labor of the

Senate Comm. on Labor and Pub. Welfare, 92d

Cong., Ist Sess. Pt. 1 (1971) 24, 25, 26

Fair Labor Standards Amendments of 1973:

Hearings Before the Subcomm. on Labor of the

Senate Comm. on Labor and Pub. Welfare, 93d

Cong., Ist Sess. Pt. 2 (1973) a 24

H.R.J. Res. No. 208, 92 Cong., 2d Sess. (1972) ...........ss000 15

H.R. Rep. No. 554, 92 Cong., Ist Sess. (1971) ........cccssseree0 21

Higher Education Amendments of 1971: Hearings

Before the Special Subcomm. on Higher Educ. of

the House Comm. on Educ. and Labor, 92d Cong.,

1st Sess. Pt. 1 (1971) 15-16, 20, 21

IX

Miscellaneous—Continued: Page

Higher Education Amendments of 1971: Hearings

Before the Special Subcomm. on Higher Educ. of the

House Comm. on Educ. and Labor, 92d Cong.,

ROE Bae. FE. B CGFA) cxceccssevisisenniesososeccesvsesetenvsenessessessosesees 15,17

Oversight Hearings on Discrimination Against

Women: Before the Ad Hoc Subcomm. on Dis-

crimination Against Women of the House Comm.

on Educ. and Labor, 92d Cong., 2d Sess. (1972) ......... 15, 16

Oversight Hearings on Unemployment and Dis-

crimination in Employment Before the Generai

Subcomm. on Labor of the House Comm. on Educ.

and Labor, 92d Cong., 2d Sess. (1972) .........cscscssseseees 15, 26

President’s Comm'n on Status of Women:

AMETICAN WOMEN (1965) ......ccececcerersereresseresesveresserereevere 16, 17

Report of the Committee on Civil and Political Rights

CETTE sctinstieciciecereeninecintectinssitltipdastnenniiannintabimesmnnces 16

Report of the Committee on Federal Employment

GEITIIE cisdisinnetnseiicetisieanncnateneeaniniiamnbeianpinteianiiaebinnnee 16, 17

President’s Task Force on Women’s Rights and

Responsibilities, A Matter of Simple Justice

(Apr. 1970) vtsenibeniniidetibeneanemententnies 16, 19

S. Rep. No. 689, 92 Cong., 2d Sess. (1972) ........ecccsesssseseseeee 21

The “Equal Rights” Amendment: Hearings on S.J.

Res. 61 Before the Subcomm. on Constitutional

Amendments of the Senate Comm. on the Judi-

ciary, Iist Cong., 2d Sess. (1970) ........cccccsesesesereseeeeees 16, 19

To Amend the Fair Labor Standards Act: Hearings

Before the Gen. Subcomm. on Labor of the House

Comm. on Educ. and Labor, 91st Cong., 2d Sess.

Se ae ETE astinciieditsiethiscititainenieeesienisecionninegssinaptesentenseoneee 24, 25

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

on the Earnings Gap (Feb. 1970) .......c.sscssesesseseseseeseeresesees 16

In the Supreme Court of the United States

NO. 02-253

UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER AT

SAN ANTONIO, PETITIONER

Vv.

THERESA M. SILER-KHODR, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-27a)

is reported at 261 F.3d 542.

JURISDICTION

The judgment of the court of appeals was entered on

August 24, 2001. A petition for rehearing was denied

on May 16, 2002 (Pet. App. 28a-37a). The petition for a

writ of certiorari was filed on August 14, 2002. The

jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

STATEMENT

1. Congress enacted the Equal Pay Act of 1963

(Equal Pay Act), 29 U.S.C. 206(d), as an amendment to

the Fair Labor Standards Act of 1938, 29 U.S.C. 201 et

seq. (Supp. IV 1988). Originally, the Equal Pay Act did

not apply to public entities. See 29 U.S.C. 206(d) (Supp.

V 1963). In 1974, however, Congress amended the Fair

Labor Standards Act to apply its prohibitions, including

(1)

2

those in the Equal Pay Act, to state and local

governments. See Fair Labor Standards Amendments

of 1974, Pub. L. No. 93-259, § 6, 88 Stat. 58-59.

In its current form, the Equal Pay Act provides that

a covered employer shall not

discriminate * * * between employees on the basis

of sex by paying wages to employees in such

establishment at a rate less than the rate at which he

pays wages to employees of the opposite sex in such

establishment for equal work on jobs the perform-

ance of which requires equal skill, effort, and re-

sponsibility, and which are performed under similar

working conditions, except where such payment is

made 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. 206(d).

2. Respondent is employed by petitioner University

of Texas Health Science Center at San Antonio (Uni-

versity) as a tenured professor specializing in reproduc-

tive endocrinology. She began her employment with

the University in 1976. In 1989, the University hired

Dr. Sydney Shain, a male, who is also a reproductive

endocrinologist. Dr. Shain has substantially the same

qualifications as respondent, and was given substant-

ially the same responsibilities. The University set Dr.

Shain’s starting salary at $83,000 a year, which was

approximately $20,000 more than the University was

paying respondent. That disparity continued until the

time of suit. See Pet. App. la-3a.

3. Respondent brought suit in Texas state court al-

leging violations of, among other things, the Equal Pay

Act, 29 U.S.C. 206(d), and Title VII of the Civil Rights

3

Act of 1964, 42 U.S.C. 2000e et seg. The University re-

moved the case to federal district court. A jury subse-

quently found in favor of respondent on her Equal Pay

Act and Title VII claims and awarded back pay and

compensatory damages. The district court awarded li-

quidated damages under the Equal Pay Act. Pet. App.

2a-4a.

4, The court of appeals affirmed. Pet. App. la-15a.

As relevant here, the court of appeals held that Con-

gress acted within its constitutional authority under

Section 5 of the Fourteenth Amendment in extending

the Equal Pay Act to the States and abrogating their

sovereign immunity from suits under that Act.

The court of appeals rejected the University’s argu-

ment that Congress acted only under the Commerce

Clause, not under the Fourteenth Amendment, in

abrogating the States’ immunity from suit under the

Equal Pay Act. (This Court held in Seminole Tribe v.

Florida, 517 U.S. 44 (1996), that Congress may not

abrogate States’ immunity through an exercise of its

powers under Article I.) The court of appeals reasoned

that Congress’s invocation of its Commerce Clause

authority to apply the Equal Pay Act to private em-

ployers in 1963, and its silence on the source of its

authority to extend the Act to public entities in 1974,

did not show that Congress was relying only on its

Commerce Clause authority in abrogating the States’

immunity. Pet. App. 12a-13a & n.4.

The court of appeals also rejected the University’s

argument that the Equal Pay Act’s abrogation of sover-

eign immunity is not valid Section 5 legislation. Apply-

1 The United States intervened in the court of appeals under 28

U.S.C. 2403(a) to address the constitutionality of the Equal Pay

Act’s abrogation of sovereign immunity.

4

ing Kimel v. Florida Board of Regents, 528 U.S. 62

(2000), and Board of Trustees v. Garrett, 531 U.S. 356

(2001), the court of appeals determined that the Equal

Pay Act provides a remedy that is “congruent and pro-

portional” to the injury of intentional sex-based dis-

crimination in state employment. Pet. App. 18a. The

court of appeals distinguished Kimel and Garrett as

involving discrimination that is not subject to height-

ened scrutiny under the Equal Protection Clause. [bid.

The court of appeals also held that Congress was not

required to make specific findings to justify the exten-

sion of the Equal Pay Act to the States, observing that

“the historical record clearly documents state discri-

mination on the basis of gender.” Id. at 14a n.6.

Judge DeMoss dissented from the court of appeals’

decision with respect to the Equal Pay Act. He as-

serted that the Equal Pay Act should be viewed as an

exercise of Congress’s authority only under the Com-

merce Clause, and not under Section 5 of the Four-

teenth Amendment. Pet. App. 15a-33a. Alternatively,

he asserted that the Equal Pay Act exceeds Congress’s

authority under Section 5 to the extent that, by virtue

of its burden-shifting mechanism, it may reach conduct

that is not proven to be “intentional sex discrimination”

in violation of the Equal Protection Clause. Id. at 34a-

36a.

ARGUMENT

Petitioner contends (Pet. 7-21) that Congress did not

validly abrogate the States’ immunity from suit under

the Equal Pay Act, 29 U.S.C. 206(d). As petitioner

acknowledges (Pet. 8), however, “there is no circuit

split” on that question, which has now been addressed

by seven courts of appeals. This Court recently denied

a petition for certiorari raising the same question.

5

Illinois State Univ. v. Varner, 533 U.S. 902 (2001).

There is no reason for a different result here. The

unanimous consensus of the courts of appeals is correct

and consistent with the holdings of this Court.

In Seminole Tribe v. Florida, 517 U.S. 44 (1996), the

Court held that Congress may not abrogate the States’

sovereign immunity pursuant to its Article I powers,

including its power under the Commerce Clause. See

id. at 55; accord Kimel v. Florida Bd. of Regents, 528

U.S. 62, 73 (2000). Congress may, however, abrogate

the States’ immunity pursuant to a proper exercise of

its authority to enforce the Fourteenth Amendment.

See, e.g., Board of Trustees v. Garrett, 531 U.S. 356, 364

(2001); Kimel, 528 U.S. at 80. That power is not un-

limited. As the Court has explained, Ҥ 5 legislation

reaching beyond the scope of § 1’s actual guarantees

must exhibit ‘congruence and proportionality between

the injury to be prevented or remedied and the means

adopted to that end.’” Garrett, 531 U.S. at 364 (quoting

City of Boerne v. Flores, 521 U.S. 507, 520 (1997)). The

Equal Pay Act, as applied to the States, is appropriate

Section 5 legislation under that standard.

1. Petitioner observes (Pet. 10-14) that Congress did

not explicitly invoke its authority under Section 5 of the

Fourteenth Amendment (or any other provision of the

Constitution) when it enacted the 1974 amendment

extending the Equa! Pay Act to the States and other

public employers. Petitioner argues that the amend-

ment consequently can be viewed only as an exercise of

Congress’s authority under the Commerce Clause, the

constitutional provision on which Congress explicitly

relied in enacting the original Equal Pay Act in 1963

that applied only to private employers. Petitioner’s

attempt to confine the inquiry to the particular source

6

of authority identified by Congress is inconsistent with

the decisions of this Court and other courts of appeals.

This Court has recognized that the “constitutionality

of action taken by Congress does not depend on recitals

of the power which it undertakes to exercise.” Woods

v. Cloyd W. Miller Co., 333 U.S. 188, 144 (1948); see

EEOC v. Wyoming, 460 U.S. 226, 243 n.18 (1983);

United States v. Harris, 106 U.S. 629, 636 (1883) (when

constitutional challenges are brought “question[ing] the

power of Congress to pass [a] law,” it is “necessary to

search the Constitution to ascertain whether or not the

power is conferred”) (emphasis added). Thus, in EEOC

v. Wyoming, the Court rejected the assertion that

“congressional action could not be upheld on the basis of

§ 5 [of the Fourteenth Amendment] unless Congress

expressly articulated its intent to legislate under § 5.”

460 US. at 243 n.18 (citation omitted). The Court went

on to observe:

It is in the nature of our review of congressional

legislation defended on the basis of Congress’ pow-

ers under § 5 of the Fourteenth Amendment that we

be able to discern some legislative purpose or

factual predicate that supports the exercise of that

power. That does not mean, however, that Con-

gress need anywhere recite the words “section 5” or

“Fourteenth Amendment” or “equal protection.”

Ibid.

The Court’s recent sovereign immunity opinions are

consistent with that understanding. In those opinions,

the Court has described the relevant inquiry as

whether “the statute is appropriate § 5 legislation,” or

whether the statute can “be viewed as” appropriate

Section 5 legislation. Garrett, 531 U.S. at 364 (emphasis

added); Florida Prepaid Postsecondary Educ. Expense

7

Bd. v. College Sav. Bank, 527 U.S. 627, 639 (1999).2 The

Court’s inquiry has not turned on whether Congress

specifically invoked Section 5 as the source of its

authority to enact the statute at issue.

Thus, in Kimel, the Court considered whether the

abrogation provision of the Age Discrimination in

Employment Act of 1967 (ADEA), 29 U.S.C. 621 et segq.,

was permissible Section 5 legislation. The ADEA, like

the Equal Pay Act, was initially enacted as an amend-

ment to the Fair Labor Standards Act, applied solely to

private employers, and was explicitly premised on the

Commerce Clause. See Kimel, 528 U.S. at 68. Con-

gress subsequently extended the nondiscrimination

requirements of both statutes to state employers,

without specifically identifying the source of its

authority to do so. See ibid. Yet, the Court in Kimel

2 Contrary to petitioner’s suggestion (Pet. 18), nothing in

Florida Prepaid supports the proposition that, because Congress

did not explicitly identify Section 5 as the source of its authority to

abrogate the States’ immunity from suit under the Equal Pay Act,

the abrogation cannot be sustained as permissible Section 5 legisla-

tion. In the Patent Remedy Act, the statute at issue in Florida

Prepaid, Congress explicitly invoked its authority under Section 5.

See 527 U.S. at 635-636. The case consequently presented no

question whether, if Congress had failed to do so, any Section 5

inquiry would have been foreclosed. Petitioner relies on a portion

of Florida Prepaid in which the Court, as part of its Section 5 “con-

gruence and proportionality” analysis of the Patent Remedy Act,

sought to “identify the Fourteenth Amendment ‘evil’ or ‘wrong’

that Congress intended to remedy.” Jd. at 639. The Court re-

jected the suggestion that Congress had intended to remedy viola-

tions of the Just Compensation Clause of the Fifth Amendment,

because the statutory text and history indicated that Congress had

instead intended to remedy violations of the Due Process Clause of

the Fourteenth Amendment. Id. at 642 n.7. None of that dis-

cussion related to whether Congress was required to identify the

constitutional source of its authority to enact the statute.

8

did not quibble over whether Congress believed that its

authority derived from the Commerce Clause or from

the Fourteenth Amendment. Instead, the Court held

that the abrogation would be effective “if, and only if,

the ADEA is appropriate legislation under § 5.” Id. at

80 (emphasis added). The Court’s ultimate holding that

the ADEA was not appropriate Section 5 legislation

rested not on the Congress’s failure to identify Section

5 as the source of its authority, but on the ADEA’s lack

of “congruence and proportionality” to constitutional

violations. Id. at 82-91.

The courts of appeals have likewise recognized,

including in cases challenging Congress’s power to en-

act a statute implicating state sovereign immunity, that

“Cwjhat matters, or at least should matter, is the extent

of national power, rather than the extent of legislative

prevision.” Board of Educ. of Oak Park v. Kelly E., 207

F.3d 931, 935 (7th Cir.) (Easterbrook, J.), cert. denied,

531 U.S. 824 (2000). “Otherwise,” as one court obser-

ved, “we require the legislature to play games (‘guess

what clause the judiciary will think most appropriate’).”

Ibid.; see, e.g., Abril v. Virginia, 145 F.3d 182, 186 (4th

Cir. 1998) (“{U]nder general principles of constitutional

adjudication, [an] abrogation does not require that a

specific provision be invoked as the source of congres-

sional power.”); Wheeling & Lake Erie Ry. v. Public

Util. Comm’n, 141 F.3d 88, 92 (8d Cir. 1998) (“[WJhen

determining the sources of Congress’s authority to

legislate, we may look beyond the expressed consti-

3 So, too, Congress initially enacted Title VII pursuant to its

Commerce Clause authority and later extended it to public em-

ployers. See United Steelworkers of Am. v. Weber, 443 U.S. 193,

206 n.6 (1979). That did not prevent this Court from holding that

the extension of Title VII to the States was valid under Section 5.

See Fitzpatrick v. Bitzer, 427 U.S. 445, 452-456 (1976).

Ee

9

tutional basis in a statute’s preamble or legislative

history.”), cert. denied, 528 U.S. 928 (1999).‘

It is thus well settled that, contrary to petitioner’s

suggestion, the constitutionality of the Equal Pay Act’s

abrogation of state sovereign immunity turns on

“whether Congress had the authority to adopt the

legislation, not whether it correctly guessed the source

of that power.” Abril, 145 F.3d at 186 (quoting Usery v.

Charleston County Sch. Dist., 558 F.2d 1169, 1171 (4th

Cir. 1977)).

2. Petitioner further contends (Pet. 14-21) that the

Equal Pay Act is not, in any event, an “appropriate”

exercise of Congress’s power under Section 5 of the

Fourteenth Amendment. The court of appeals held,

however, that the Equal Pay Act is sustainable under

Section 5 as a “congruent and proportional” means of

preventing and remedying intentional sex discrimina-

tion in employment. Pet. App. 18a. That holding is

correct and is consistent with the holdings of every

other court of appeals that has addressed the question,

both before and after Kimel and Garrett.°

4 See also, e.g., Union Pac. R.R. v. Utah, 198 F.3d 1201, 1203

(10th Cir. 1999); United States v. Moghadam, 175 F.3d 1269, 1275

(11th Cir. 1999), cert. denied, 529 U.S. 1036 (2000); Franks v. Ken-

tucky Sch. for the Deaf, 142 F.3d 360, 363 (6th Cir. 1998); Oregon

Short Line R.R. v. Department of Revenue, 139 F.3d 1259, 1265-

1266 (9th Cir. 1998); Mills v. Maine, 118 F.3d 37, 43-44 (1st Cir.

1997); Crawford v. Davis, 109 F.3d 1281, 1283 (8th Cir. 1997);

Counsel v. Dow, 849 F.2d 731, 735-737 (2d Cir.), cert. denied, 488

U.S. 955 (1988).

5 See Varner v. Illinois State Univ., 226 F.3d 927, 928-936 (7th

Cir. 2000), cert. denied, 583 U.S. 902 (2001); Kovacevich v. Kent

State Univ., 224 F.3d 806, 819-821 (6th Cir. 2000); Hundertmark v.

Florida Dep’t of Transp., 205 F.3d 1272, 1274 (11th Cir. 2000);

O’Sullivan v. Minnesota, 191 F.3d 965, 968 (8th Cir. 1999);

Anderson v. State Univ. of N.Y., 169 F.3d 117 (2d Cir. 1999),

10

The extension of the Equal Pay Act to the States,

with its attendant abrogation of sovereign immunity, is

a permissible exercise of Congress’s power under Sec-

tion 5 of the Fourteenth Amendment to enact “approp-

riate legislation” to “enforce” the substantive guaran-

tees of the Equal Protection Clause. This Court has rec-

ognized that Congress, in exercising that power, “is not

limited to mere legislative repetition of this Court’s

constitutional jurisprudence.” Garrett, 531 U.S. at 365.

“Rather, 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, in-

cluding that which is not itself forbidden by the Amend-

ment’s text.” Ibid. (quoting Kimei, 528 U.S. at 81).

The Court has explained that Section 5 legislation

that “reach[es] beyond the scope” of constitutional

guarantees “must exhibit ‘congruence and proportion-

ality between the injury to be prevented or remedied

and the means adopted to that end.’” Garrett, 531 U.S.

at 365 (quoting Boerne, 521 U.S. at 520). In order to

determine whether a statute satisfies that standard, the

Court has prescribed a three-step analysis: first, the

court must “identify with some precision the scope of

the constitutional right at issue,” zbid.; second, the court

must “examine whether Congress identified a history

and pattern of unconstitutional * * * discrimination

by the States” against the group protected by the

vacated, 528 U.S. 1111 (2000), on remand, 107 F. Supp. 2d 158

(N.D.N.Y. 2000) (reaffirming validity of abrogation); 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); see also Usery v. Charleston County Sch. Dist., 558

F.2d at 1171; Usery v. Allegheny County Inst. Dist., 544 F.2d 148,

155 (3d Cir. 1976), cert. denied, 430 U.S. 946 (1977).

11

statute, id. at 368; and, finally, the court must assess

whether the “rights and remedies created” by the

statute are “designed to guarantee meaningful enforce-

ment” of the constitutional rights that Congress deter-

mined the States were violating, id. at 372, 373. The

court of appeals properly applied “these now familiar

principles,” id. at 365, in determining that Congress

permissibly abrogated the State’s immunity from suit

under the Equal Pay Act.

1. The scope of the constitutional right: It is “axio-

matic” that “{iJntentional discrimination on the basis of

gender by state actors violates the Equal Protection

Clause.” J.E.B. v. Alabama, 51% U.S. 127, 130-131

(1994). “Parties who seek to defend gender-based gov-

ernment action must demonstrate an ‘exceedingly per-

suasive justification’ for that action.” United States v.

Virginia, 518 U.S. 515, 531 (1996) (quoting Mississippi

Univ. for Women v. Hogan, 458 U.S. 718, 724 (1982)).

In contrast to state action based on age (as in Kimel) or

disability (as in Garrett), state action based on sex bears

a “burden of justification” that is “demanding” and

“rests entirely on the State.” Jd. at 533. The State

must demonstrate “at least that the [challenged] classi-

fication serves ‘important governmental objectives and

that the discriminatory means employed’ are ‘substan-

tially related to the achievement of those objectives.”

Ibid. The justification for gender-based state action

“must be genuine, not hypothesized or invented post

hoc in response to litigation,” and “must not rely on

overbroad generalizations about the different talents,

capacities, or preferences of males and females.” bid.

The constitutional right to be free from intentional sex

discrimination by the government applies to state

employment. See Personnel Adm’r of Mass. v. Feeney,

442 U.S. 256, 273 (1979).

12

2. The history of unconstitutional state discrimin-

ation against women: This Court has found that

women have historically been the subject of a pattern of

invidious discrimination by States. See, e.g., Virginia,

518 U.S. at 531-532, 543-544; J.E.B., 511 U.S. at 135-136;

Mississippi Univ. for Women, 458 U.S. at 725 n.10. It

should thus be unnecessary to engage in any extended

inquiry into whether Congress could also have found

that such a pattern existed. In any event, however,

Congress extended the Equal Pay Act to the States in

the face of ample evidence of a pattern of state constitu-

tional violations.

a. A year before Congress extended the Equal Pay

Act to the States, a plurality of the Court declared,

without contradiction, that “[t]here can be no doubt

that our Nation has had a long and unfortunate history

of sex discrimination.” Frontiero v. Richardson, 411

U.S. 677, 684 (1973) (plurality opinion). The plurality

explained that, as a result of “paternalistic attitude[s]”

toward women, state “statute books gradually became

laden with gross, stereotyped distinctions between the

sexes and, indeed, throughout much of the 19th century

the position of women in our society was, in many

respects, comparable to that of blacks under the pre-

Civil War slave codes.” Jd. at 685. For example,

“(njeither slaves nor women could hold office, serve on

juries, or bring suit in their own names, and married

women traditionally were denied the legal capacity to

hold or convey property or to serve as legal guardians

of their own children.” Jbid. The plurality further

observed that, even in 1973, “women still face[d]

pervasive, although at times more subtle, discrimin-

ation in our educational institutions [and] in the job

market.” Jd. at 686; see J.L.B.,511 U.S. at 136 (noting

that women, like racial minorities, have “suffered * * *

13

at the hands of discriminatory state actors during the

decades of our Nation’s history”).

This Court has since recognized that this historical

pattern of state-sanctioned discrimination against wo-

men “warrants the heightened scrutiny we afford all

gender-based classifications today.” J.E.B., 511 U.S. at

136; see Virginia, 518 U.S. at 531 (observing that the

judiciary’s “skeptical scrutiny of official action denying

rights or opportunities based on sex responds to

volumes of history”). The Court has also recognized

that the pattern of discrimination extends to the sphere

of employment. See Virginia, 518 U.S. at 531-532, 544

(noting, inter alia, governmental sex discrimination in

employment); Mississippi Univ. for Women, 458 U.S. at

725 n.10 (“History provides numerous examples of

legislative attempts to exclude women from particular

areas [of employment] simply because legislators be-

lieved women were less able than men to perform a

particular function.”); Frontiero, 411 U.S. at 689 n.22

(plurality opinion) (women “have historically suffered

discrimination in employment”).

In view of the Court’s own determination that the

States engaged in a pattern of intentional sex discrimi-

nation, there should be no need to assess whether the

record before Congress also demonstrated such a pat-

tern. Cf. Kimel, 528 U.S. at 91 (noting that an exami-

nation of the legislative record is not necessary in all

circumstances). This case stands in sharp contrast to

Kimel and Garrett with respect to the need to consult

the record before Congress. Fimel concerned Con-

gress’s efforts to prohibit discrimination on the basis of

age, a classification that is not subject to heightened

scrutiny, in part because the Court has found no “his-

tory of purposeful unequal treatment” of older workers

by the government. Massachusetts Bd. of Ret. v.

14

Murgia, 427 U.S. 307, 313 (1976). Similarly, in Garrett,

the Court addressed a statute prohibiting employment

discrimination against individuals with disabilities. See

531 U.S. at 365-366. Such discrimination is subject to

rational basis scrutiny, in part, because “lawmakers

have been addressing the[] difficulties [of individuals

with disabilities] in a manner that belies a continuing

antipathy or prejudice and a corresponding need for

more intrusive oversight by the judiciary.” City of

Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 482,

443 (1985). In both cases, the Court looked to the

legislative record to determine whether, notwith-

standing the absence of case law premised on the exis-

tence of a pattern of unconstitutional discrimination,

Congress itself had established the existence of such

discrimination against individuals with disabilities or

older workers. See Garrett, 531 U.S. at 368-372; Kimel,

528 U.S. at 88-91. Here, however, the cases discussed

above represent a judicial confirmation of a pattern of

unconstitutional discrimination against women that

justifies both this Court’s decision to apply heightened

Equal Protection scrutiny to sex discrimination and

Congress’s decision to abrogate States’ immunity from

suit under the Equal Pay Act.

b. In any event, when Congress extended the Equal

Pay Act to public employers in 1974, it was aware of the

extensive findings and legislative records compiled

through a series of recent legislative efforts at eradicat-

ing sex discrimination by States. Extending the Equal

Pay Act to the States was the last of four steps taken

by Congress in the early 1970s to address sex discrim-

ination by state and local governments.° Specifically,

6 As Justice Powell noted, “[a]fter Congress has legislated re-

peatedly in an area of national concern, its Members gain experi-

15

Congress enacted the Education Amendments of 1972,

which extended a non-discrimination prohibition to all

education programs receiving federal funds, including

those of state universities, and extended the Equal Pay

Act to all employees of educational institutions, see

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

Title IX, §§ 901-907, 86 Stat. 373-375; Congress ex-

tended Title VII’s prohibition against discrimination in

employment to state and local employers, see Equal

Employment Opportunity Act of 1972, Pub. L. No. 92-

261, § 2, 86 Stat. 103; Congress submitted the Equal

Rights Amendment to the States for ratification, see

H.R. J. Res. No. 208, 92d Cong., 2d Sess. (1972); and

Congress extended the protections of the Equal Pay

Act to state employees, see Fair Labor Standards

Amendments of 1974, Pub. L. No. 93-259, 88 Stat. 55.

Between 1969 and 1973, Congress held extensive hear-

ings’ and received numerous reports from the Execu-

ence that may reduce the need for fresh hearings or prolonged de-

bate when Congress again considers action in that area.” Fullilove

v. Klutznick, 448 U.S. 448, 502-503 (1980) (opinion of Powell, J.).

7 See, e.g., Economic Problems of Women: Hearings Before the

Joint Econ. Comm., 93d Cong., 1st Sess. (1973) (Economic Prob-

lems); Oversight Hearings on Discrimination Against Women:

Before the Ad Hoc Subcomm. on Discrimination Against Women

of the House Comm. on Educ. and Labor, 92d Cong., 2d Sess.

(1972) (Discrimination Against Women (1972)); Oversight

Hearings on Unemployment and Discrimination in Employment

Before the General Subcomm. on Labor of the House Comm. on

Educ. and Labor, 92d Cong., 2d Sess. (1972) (Unemployment and

Discrimination); Equal Rights for Men and Women 1971: Hear-

ings Before Subcomm. No. 4 of the House Comm. on the Judiciary,

92d Cong., 1st Sess. (1971) (Equal Rights (1971)); Higher Educa-

tion Amendments of 1971: Hearings Before the Special Subcomm.

on Higher Educ. of the House Comm. on Educ. and Labor, 92d

Cong., lst Sess. (Pt. 2) (1971) (Higher Education 2); Higher

Education Amendments of 1971: Hearings Before the Special

eee OO OE OE

16

tive Branch® on the subject of sex discrimination,

including sex discrimination by the States. Congress

heard extensive testimony that sex discrimination by

state employers was common,’ that state employers

Subcomm. on Higher Educ. of the House Comm. on Educ. and

Labor, 92d Cong., 2d Sess. (Pt. 1) (1971) (Higher Education 1);

Equal Employment Opportunities Enforcement Act of 1971:

Hearings Before the Subcomm. on Labor of the Senate Comm. on

Labor and Pub. Welfare, 92d Cong., 1st Sess. (1971) (Equal

Employment (Senate 1971)); Equal Employment Opportunity

Enforcement Procedures: Hearings Before the Gen. Subcomm. on

Labor of the House Comm. on Educ. and Labor, 92d Cong., Ist

Sess. (1971) (Equal Employment (House 1971)); Discrimination

Against Women: Hearings Before the Special Subcomm. on Educ.

of the House Comm. on Educ. and Labor, 91st Cong., 2d Sess.

(1970) (Discrimination Against Women (1970)); The “Equal

Rights” Amendment: Hearings on S.J. Res. 61 Before the Sub-

comm. on Constitutional Amendments of the Senate Comm. on

the Judiciary, 91st Cong., 2d Sess. (1970) (Equal Rights (1970));

Equal Employment Opportunity Enforcement Procedures:

Hearings Before the Gen. Subcomm. on Labor of the House Comm.

on Educ. and Labor, 91st Cong., Ist & 2d Sess. (1969-1970); Equal

Employment Opportunities Enforcement Act: Hearings Before the

Subcomm. on Labor of the Senate Comm. on Labor and Pub. We-

lfare, 91st Cong., Ist Sess. (1969) (Equal Employment (1969)).

8 See, e.g., President’s Task Force on Women’s Rights and

Responsibilities, A Matter of Simple Justice (Apr. 1970) (Simple

Justice); Women’s Bureau, U.S. Dep’t of Labor, Fact Sheet on the

Earnings Gap (Feb. 1970) (reprinted in Discrimination Against

Women (1972) 17-19); see also President’s Comm’n on Status of

Women, American Women (1965); President’s Comm’n on Status

of Women, Report of the Committee on Federal Employment

(1963); President’s Comm’n on Status of Women, Report of the

Committee on Civil and Political Rights (1963).

9 See, e.g., Economic Problems 131 (Aileen C. Hernandez, for-

mer member, EEOC) (state and local government employers “are

notoriously discriminatory against both women and minorities”);

id. at 556 (Frankie M. Freeman, U.S. Comm’n on Civil Rights)

(“State and local government employment has long been recog-

17

nized as an area in which discriminatory employment practices

deny jobs to women and minority workers.”); Equal Rights (1971)

479 (Mary Dublin Keyserling, National Consumers League) (“It is

in these fields of employment [i.e., state and local government and

educational institutions] that some of the most discriminatory

practices seriously limit women’s opportunities.”); id. at 548 (Citi-

zen’s Advisory Council on Status of Women) (“numerous distinc-

tions based on sex still exist in the law” including “[d]iscrimination

in employment by State and local governments”); Higher Edu-

cation 2 at 1131 (study by American Association of University Wo-

men) (“women do not have equal status with men in academe,”

“particularly * * * in the large public institutions”); American

Women 19-20 (noting “prejudicial attitudes and practices” by, inter

alia, “governmental organizations” in “hiring, wages, and promo-

tion”).

The President’s Commission on the Status of Women surveyed

States regarding their employment policies toward women.

Eleven States gave the appointing officer “the unrestricted right

to specify male or female” candidates for original appointments,

and 15 States “permit[ted] the appointing officer to limit his consi-

deration to one sex in promotion.” Report of the Committee on

Federal Employment 68. Even among those States that limited

the appointing officer’s discretion not to consider women, many

excluded women from broad categories of jobs. For example,

Michigan “require{d] that men only shall apply for classes such as

State police trooper, steeplejack, bulldozer operator, prison guard,

liquor enforcement operator, [and] patrol boat captain”; Colorado

considered only men for “jobs on night shifts, working bars,* * *

or where heavy lifting is required”; Illinois considered only men for

positions such as prison guard and district office police clerk; and

Indiana and Texas considered only men for positions requiring

physical strength. Jd. at 71-73. Even when women were not for-

mally excluded from positions, States reported that their agencies

did not consider women for positions for which they were qualified.

See id. at 72 (Oregon reported that “the employing agencies

sometimes ignore the women certified”; Montana reported that

“we have certain positions that could be filled by women for which

men are usually selected”).

18

discriminated against women with respect to wages,”

and that existing remedies, at both the state and the

federal levels, were inadequate.” Much of that

10 See, e.g., Equal Employment (House 1971) 486, 489 (Modern

Language Association) (in survey of language departments, half at

public colleges and universities, “salary differences between men

and women full-time faculty members are substantial,” even “at

equivalent ranks in the same departments”); id. at 510 (Dr. Ann

Scott, National Organization for Women) (noting that women in

state employment “suffer some of the worst discrimination,” which

could be addressed by extension of the Equal Pay Act); Discrimi-

nation Against Women (1970) 301 (Dr. Bernice Sandler, Women’s

Equity Action League) (noting that “[sJalary discrepancies

abound” in the academic ranks of public and private universities;

“(njumerous national studies have documented the pay differences

between men and women with the same academic position and

qualifications”); id. at 644-645 (Peter Muirhead, Deputy Assistant

Secretary, Department of Health, Education and Welfare) (observ-

ing, with respect to public and private universities, that “(a]t all

faculty ranks, women are paid less than their male colleagues,” and

that such “inequities are so pervasive that direct discrimination

must be considered as p[lJaying a share”); id. at 1034-1036 (Dr.

Alan Bayer and Dr. Helen Astin) (empirical study of recent

doctoral recipients reports that “(aJcross all work settings

[including public universities], fields, and ranks, women experience

a significantly lower average academic income than do men in the

academic teaching labor force for the same amount of time”).

11 Before the extension of the Equal Pay Act and Title VII to

the States, some state employers were subject to federal non- dis-

crimination requirements as a condition of receiving federal con-

tracts or certain federal funds. Congress was advised, however,

that neither those requirements nor suits under the Equal Protec-

tion Clause were sufficient to eradicate discrimination against

women in state employment. See, e.g., Discrimination Against

Women (1970) 26 (Jean Ross, American Association of University

Women) (“[A]s in the case of [racial minorities], the additional

protective acts of recent years, such as the Equal Pay for Equal

Work Act and the Civil Rights Act[,] are required and need

strengthening to insure the equal protection under the law which

19

evidence revealed widespread and entrenched employ-

ment discrimination against women employed at state

colleges and universities.” Congress heard detailed

testimony that women at state institutions throughout

we are promised under the Constitution.”); id. at 304 (Dr. Bernice

Sandler) (noting the need for additional legislation “to begin to

correct many of the inequities that women face,” including “salary

inequities” at colleges and universities); Equal Employment

(1969) 51-52 (William H. Brown III, Chair, EEOC) (observing that

“most” state and local governments “do not have effective equal

job opportunity programs, and the limited Federal requirements in

the area (e.g., ‘Merit Systems’ in Federally aided programs) have

not produced significant results”). Nor were effective state reme-

dies perceived to be available. See, e.g., Discrimination Against

Women (1970) 133 (Wilma Scott Heide, Pennsylvania Human Re-

lations Comm’n) (urging that Title VII be extended to educational

institutions because “[o]nly a couple States have or currently

contemplate any prohibition of sex discrimination in educational

institutions”); Equal Rights (1970) 744 (while 31 States had laws

requiring equal pay for equal work, only nine of those laws applied

to public employment); Equal Employment (1969) 170 (Howard

Glickstein, U.S. Comm’n on Civil Rights) (noting that state and

local fair employment commissions had not dealt effectively with

discrimination in public employment).

12 See, e.g., Simple Justice 6-7 (urging extension of Title VII to

state employers and finding that “[tJhere is gross discrimination

against women in education”); Equal Rights (1971) 269 (Dr.

Bernice Sandler) (noting the “massive, pervasive, consistent, and

vicious pattern of discrimination against women in our universities

and colleges” and citing examples of such discrimination at state

institutions); Discrimination Against Women (1970) 299-302 (Dr.

Bernice Sandler) (noting instances of employment discrimination

by state-supported universities); id. at 379 (Dr. Pauli Murray)

(urging that Title VII be extended to “public and private institu-

tions of learning” given the “pattern or practice of discrimination

in many educational institutions”); id. at 452 (Virginia Allan, Presi-

dent’s Task Force on Women’s Rights and Responsibilities) (noting

“the growing body of evidence of discrimination against women

faculty in higher education”).

20

the country were paid less than men for substantially

the same work.” For example, officials of the Depart-

ment of Health, Education, and Welfare reported to

Congress on their investigation into such discrimination

at one large state university, which the officials de-

scribed as “not unlike other universities” in that

regard."

18 See, e.g., Discrimination Against Women (1970) 151, 159 (Dr.

Ann Scott) (describing study at the State University of New York-

Buffalo that found that “women in the same job categories, admini-

strative job categories, with the same degrees as men received

considerably less money as a group”); id. at 1225 (study by Dr.

Jane Loeb, Chairman, Urbana AAUP Committee on Status of

Women) (“The[] data strongly suggest that men and women within

the same departments [at the University of Illinois at Urbana-

Champaign], holding the same rank, tend not to be paid the same

salaries: women on the average earn less than men”); id. at 1228

(Salary Study at Kansas State Teachers College) (“Women full-

time faculty members experience wide discrimination throughout

the college in matters of salaries for their respective academic

ranks.”); Equal Rights (1971) 268 (Dr. Bernice Sandler) (“At the

University of Arizona, women who were assistant and associate

professors earned 15 percent less than their male counterparts.

Women instructors and full professors earned 20 percent less.”);

ibid. (in a “comprehensive study at the University of Minnesota,

women earned less in college after college, department after

department—in some instances the differences exceeding 50

percent”).

_4 See, e.9., Higher Education 1 at 298 (letter of Don F. Scott,

Office for Civil Rights, Dep’t of Health, Education, and Welfare)

(noting Department’s findings that at the University of Michigan

“women are in many cases getting less pay than men with the

same job titles, responsibilities, and experience” and that “men

[are receiving] higher starting salaries than women in the same job

classifications”); id. at 275 (Owen Kiely, Chief, Contract Compli-

ance Div., Office of Civil Rights, Dep’t of Health, Education, and

Welfare) (“We found that there were differences in rates of pay [at

the University of Michigan] for the same positions in the academic

21

The congressional committee reports on the various

enactments of the period noted the “scope and depth of

the discrimination” against women, much of which was

found to be “directly attributable to governmental

action both in maintaining archaic discriminatory laws

and in perpetuating discriminatory practices in employ-

ment, education and other areas.” H.R. Rep. No. 554,

92d Cong., 1st Sess. 51 (1971) (Higher Education Act of

1971); S. Rep. No. 689, 92d Cong., 2d Sess. 7 (1972)

(Equal Rights Amendment). A number of Members of

Congress expressed the view that the “well docu-

mented” record developed at the hearings revealed

“widespread,” “persistent,” “endemic,” “systemic[],”

and “rampant” sex discrimination,” including sex dis-

area so that females generally got less for the same position than

males did. We found similar patterns in the nonacademic area.”);

id. at 277-278 (Stanley Pottinger, Director, Office of Civil Rights,

Dep’t of Health, Education, and Welfare) (noting that, “although

we have concentrated our actions here on the [U]niversity [of

Michigan], it is not unlike other universities”).

16 See 118 Cong. Rec. 3936, 5804 (1972) (Sen. Bayh) (observing

that “(d]iscrimination against females on faculties and in admin-

istration is well documented” and referencing both public and

private institutions); id. at 4817-4818 (Sen. Stevenson) (observing

that “[s]ex discrimination, especially in employment, * * * is

widespread and persistent,” and relying, inter alia, on disparities

in male and female salaries at institutions of higher education);

Equal Rights (1971) 95 (Rep. Ryan) (“Discrimination levied

against women does exist; in fact, it is endemic in our society.”);

Discrimination Against Women (1970) 3 (Rep. Green) (“too often

discrimination against women has been either systematically or

subconsciously carried out” by “Congress and State legislatures”);

id. at 235 (Rep. May) (“(S]ex discrimination in the colleges and

universities of this Nation * * * is running rampant.”); id. at 738

(Rep. Griffiths) (“The extent of discrimination against women in

the educational institutions of our country constitutes virtually a

national calamity.”); id. at 750 (Rep. Heckler) (“Discrimination by

22

crimination by state government employers that “per-

sist[ed]” despite the fact that it was “violative of the

Constitution of the United States.” And, more

specifically, they concluded that many employers, in-

cluding state government employers, were not paying

women equal wages for equal work” and that the

universities and secondary schools against women teachers is

widespread.”).

16 118 Cong. Rec. at 1412 (Sen. Byrd).

17 Members of Congress relied, inter alia, on the Department of

Labor’s Fact Sheet on the Earnings Gap (see note 8, supra), which

found large differences in median wages between men and women

full-time workers in general occupational groupings. For example,

the Fact Sheet reported that, “in institutions of higher education in

1965-66, women full professors had a median salary of only $11,649

as compared with $12,768 for men,” and that “[clomparable differ-

ences” were found among associate professors, assistant profes-

sors, and instructors. Discrimination Against Women (1970) 18.

Members of Congress determined that “these differences [in

median pay of men and women faculty members] do not occur by

accident,” but instead “are the direct result of conscious discrimi-

natory policies.” Jd. at 434 (Rep. Mink); see 118 Cong. Rec. at 5805

(Sen. Bayh) (noting that women faculty members “often do not

receive equal pay for equal work”); id. at 4817-4818 (Sen. Steven-

son) (citing salary disparities between male and female faculty

members as evidence of discrimination).

Members of Congress also relied on other evidence of wage

disparities to conclude that public and private employers were

discriminating against women. See, e.g., 117 Cong. Rec. 39,250

(1971) (Rep. Green) (noting the “ample documentation” contained

in a “two volume hearing record” of discrimination against women

in institutions of higher learning); 118 Cong. Rec. at 5804-5805

(Sen. Bayh) (noting that “{o]ver 1,200 pages of testimony document

the massive, persistent patterns of discrimination against women

in the academic world,” such as testimony that “the University of

Pittsburgh calculated that [it] was saving $2,500,000 by paying

women less than they would have paid men with the same

qualifications”); id. at 1840 (Sen. Javits) (noting that state and local

governments’ “differentiation * * * in respect of income” among

23

existing laws did not adequately address that

problem.” Thus, “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 * * * and its

extension of Title VII to state and local employers.”

male and female employees indicates that “something is not right

in terms of the way in which the alleged concept of equal opportu-

nity is being administered”); id. at 1992 (Sen. Williams) (“Perhaps

the most extensive discrimination in educationa! institutions,

however, is found in the treatment of women. * * * [T]his

discrimination does not only exist as regards to the acquiring of

jobs, but * * * is similarly prevalent in the area of salaries and

promotions where studies have shown a well-established pattern of

unlawful wage differentials and discriminatory promotion poli-

cies.”); Discrimination Against Women (1970) 740 (Rep. Griffiths)

(“Numerous studies document the pay differences between men

and women with the same academic rank and qualifications.”).

18 See, e.g., 118 Cong. Rec. at 4931-4932 (Sen. Cranston)

(employees of educational institutions “are, at present, without an

effective Federal remedy in the area of employment dis-

crimination”); id. at 5804 (Sen. Bayh) (noting the need for “a strong

and comprehensive measure” to “provide women with solid legal

protection from * * * persistent, pernicious discrimination” in

higher education); id. at 274 (Sen. McGovern) (describing as

“weak” and “ineffective” the measures then available to the federal

government to combat “discrimination against women in our

academic institutions”); Equal Rights (1971) 85, 87 (Rep. Mikva)

(arguing that the extension of Title VII and the Equal Pay Act

were “needed interim to and supplemental to” the ratification of

the Equal Rights Amendment and its “implementation under the

14th amendment”); Discrimination Against Women (1970) 235

(Rep. May) (unless the civil rights laws are extended to education-

al institutions, “there is no effective legal way to get 2+ them”); zd.

at 750 (Rep. Heckler) (observing that the Fourteenth Amendment

“has not been effective in preventing sex discrimination against

teachers in public schools”).

24

Varner v. Illinois State Univ., 226 F.3d 927, 935 (7th

Cir. 2000), cert. denied, 533 U.S. 902 (2001).

c. In addition to the evidence developed before the

enactment of the Equal Pay Act, the hearings on the

legislation that ultimately extended the Equal Pay Act

to the States revealed extensive evidence of sex

discrimination by States as employers.” Congress

heard testimony that, because public employees were

exempted from the Equal Pay Act, wages for women in

state and local government jobs “are most often lower

than [those of] their male counterparts.” Congress

also heard testimony that existing anti-discrimination

remedies were insufficient.” In addition, Congress

heard testimony not only that women received unequal

pay for equal work at universities and colleges

generally,” but also that a number of state universities,

19See To Amend the Fair Labor Standards Act: Hearings

Before the Gen. Subcomm. on Labor of the House Comm. on Educ.

and Labor, 91st Cong., 2d Sess. (Pt. 1) (1970) (FLSA Hearings

(1970)); Fair Labor Standards Amendments of 1971: Hearings

Before the Subcomm. on Labor of the Senate Comm. on Labor and

Pub. Welfare, 92d Cong., Ist Sess. (Pt. 1) (1971) (FLSA Hearings

(1971)); Fair Labor Standards Amendments of 1978: Hearings

Before the Subcomm. on Labor of the Senate Comm. on Labor and

Pub. Welfare, 98d Cong., Ist Sess. (Pt. 2) (1973) (FLSA Hearings

(1973)).

2 FLSA Hearings (1971) 292-298 (Judith A. Lonnquist, Na-

tional Organization for Women).

21 See FLSA Hearings (1971) 288-289 (Lucille Shriver, National

Federation of Business and Professional Women’s Clubs)

(expressing the view that extending Title VII would not be

sufficient); FLSA Hearings (1978) 46a (National Federation of

Business and Professional Women’s Clubs) (FLSA coverage of

state employers “is sorely needed”).

2 See FLSA Hearings (1971) 321 (Dr. Bernice Sandler) (“Salary

differences between men and women doing the same work and

with the same title are the rule, rather than the exception in

25

in particular, paid women less than men for the same

work.” Witnesses also testified that public elementary

and secondary schools” did not pay women equally with

their male counterparts for equal work.”

universities and colleges.”); id. at 350 (article by Dr. Alan Bayer

and Dr. Helen Astin) (“Across all work settings, fields, and ranks,

women experience a significantly lower average academic income

than do men in the academic teaching labor force for the same

amount of time.”); id. at 363 (Helen Bain, National Education

Association) (“At the college level women faculty members, almost

without exception, receive, on the average, substantially less for

the same work than do their male counterparts.”); id. at 748 (Jean

Ross) (although “nationally, women comprise about 22 percent of

the faculty at all ranks in higher education in the United States,”

“women are not filling a comparable proportion of the higher

paying posts in higher education in either faculty or administrative

positions”).

2 See FLSA Hearings (1971) 322-324 (Dr. Bernice Sandler)

(reporting on evidence from University of Arizona, University of

Minnesota, Kansas State Teachers College, University of

Pittsburgh, Michigan State University, and University of

California at Berkeley that “[w]omen are simply paid less than

their male counterparts”); id. at 747 (Jean Ross) (University of

Minnesota); FLSA Hearings (1970) 477-478 (Wilma Scott Heide,

National Organization for Women) (University of Minnesota, State

University of New York at Buffalo, University of Maryland, and

University of Pittsburgh); id. at 558 (Salary Study at Kansas State

Teachers College).

% Although school districts are generally not “arms of the state”

protected by the Eleventh Amendment, see Mt. Healthy City Sch.

Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280-281 (1977), there are

some significant exceptions to this rule. See Belanger v. Madera

Unified Sch. Dist., 963 F.2d 248 (9th Cir. 1992) (California school

districts are protected by Eleventh Amendment), cert. denied, 507

U.S. 919 (1998); Rosenfeld v. Montgomery County Pub. Schs., 41

F. Supp. 2d 581 (D. Md. 1999) (Maryland school districts are

protected by Eleventh Amendment). The law in other States re-

mains in flux. See, e.g., Martinez v. Board of Educ. of Taos Mun.

Sch. Dist., 748 F.2d 1393 (1984) (New Mexico school districts are

26

Thus, whether one focuses solely on the hearings

concerning the Equal Pay Act extension or on the

record more broadly, the existence of a pattern of un-

constitutional discrimination against women by States

was well established.

d. That record is further bolstered by the “extensive

litigation and discussion of the constitutional violations”

in the federal courts. See Garrett, 53) U.S. at 376

(Kennedy, J., concurring). This Court fas repeatedly

invalidated state laws and practices that invidiously

discriminated on the basis of sex.” In addition, the

protected by Eleventh Amendment), overruled by Duke v. Grady

Muzn. Schs., 127 F.3d 972 (10th Cir. 1997); Harris v. Tooele County

Sch. Dist., 471 F.2d 218 (1973) (Utah school districts are protected

by Eleventh Amendment), overruled by Ambus v. Granite Bd. of

Educ., 995 F.2d 992 (10th Cir. 1993) (en banc). Given that some

school districts are “beneficiaries of the Eleventh Amendment,”

the evidence before Congress regarding the treatment of women

in public schools is relevant in assessing the legislative record. See

Garrett, 531 U.S. at 369.

2% See FLSA Hearings (1971) 317 (Dr. Ann Scott) (“discrim-

ination of salaries paid to woman teachers pervades the entire

public school system”); see also Equal Rights (1971) 548 (Citizen’s

Advisory Council on the Status of Women) (“numerous distinctions

based on sex still exist in the law” including “(dJual pay schedules

for men and women public school teachers”); Equal Employment

(Senate 1971) 433 (Mary Jean Collins-Robson, National

Organization for Women) (“For example, in Salina, Kansas, the

salary schedule provides $250 extra for male teachers; in Biloxi,

Mississippi, men receive an additional $200.”); Unemployment and

Discrimination 221 (Mary King, school board member) (“The

cleaning men and cleaning women in the Euclid schools do almost

the same work, although there are slightly different job descrip-

tions. The women earn $2,500 less per year than the men.”).

% See, e.g., Virginia, supra (higher education); J.E.B., supra

(jury peremptory challenges); Kirchberg v. Feenstra, 450 U.S. 455

(1981) (property disposition); Stanton v. Stanton, 421 U.S. 7 (1975)

27

lower federal courts continue to find that States dis-

criminate against women in employment in violation of

both the Equal Protection Clause and the disparate

treatment provisions of Title VII.” Those cases pro-

vide “confirming judicial documentation,” ibid., of

unconstitutional state sex discrimination.

3. The congruence and proportionality of the

remedy to the constitutional violation: The Equal Pay

Act is a narrowly tailored response to a documented

pattern of unconstitutional state discrimination in the

wages paid female workers. See County of Washington

v. Gunther, 452 U.S. 161, 170 (1981) (observing that

Congress sought “to confine the application of the

[Equal Pay] Act to wage differentials attributable to

sex discrimination”). The Equal Pay Act prohibits

employers from paying workers of one sex more than

workers of the opposite sex for performing “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. 206(d)(1);

see Corning Glass Works v. Brennan, 417 U.S. 188, 195

(1974). The Constitution itself forbids such disparities

if they result from intentional discrimination on the

basis of sex.

(child support); Taylor v. Louisiana, 419 U.S. 522 (1975) Gury

service); Reed v. Reed, 404 U.S. 71 (1971) (estate administration).

27 See, e.g., White v. New Hampshire Dep’t of Corrs., 221 F.3d

254 (1st Cir. 2000); Thomas v. Texas Dep’t of Criminal Justice, 220

F.3d 389 (5th Cir. 2000); Lathem v. Department of Children and

Youth Servs., 172 F.3d 786 (11th Cir. 1999); Nicks v. Missouri, 67

F.3d 699 (8th Cir. 1995); Cross v. Alabama, 49 F.3d 1490 (11th Cir.

1995); Catlett v. Missouri Highway and Transp. Comm’n, 828 F.2d

1260 (8th Cir. 1987), cert. denied, 485 U.S. 1021 (1988); Craik v.

Minnesota State Univ. Bd., 731 F.2d 465 (8th Cir. 1984); Sweeney

v. Board of Trustees of Keene State Coll., 604 F.2d 106 (1st Cir.

1979), cert. denied, 444 U.S. 1045 (1980).

28

The Equal Pay Act enforces that constitutional

prohibition by shifting the evidentiary burden when a

wage disparity is shown. Once an employee proves

equal work and unequal pay, an employer bears the

burden of persuasion (if it chooses to mount an affirma-

tive defense) to show that the difference was based on

“any other factor other than sex.” 29 U.S.C.

206(d)(1)(iv); Corning Glass Works, 417 U.S. at 196-197.

In essence, Congress has established a rebuttable

presumption that unequal pay of male and female work-

ers for equal work represents intentional sex discrimi- _

nation, but permits employers to rebut that presump-

tion by showing that the actual cause of the disparity is

“any” factor other than sex.

The burden-shifting mechanism does not, as peti-

tioner suggests (Pet. 15-16), render the Equal Pay Act

an impermissible exercise of Congress’s power under

Section 5. That mechanism, which serves to ensure

that cases of intentional unconstitutional sex dis-

crimination do not evade judicial detection and remedy,

is well within Congress’s authority to enact prophylac-

tic and remedial legislation to enforce the Fourteenth

Amendment. This Court itself has created burden-

shifting mechanisms for the same purpose of dis-

covering discriminatory motives that can easily be

concealed. See, e.g., Texas Dep’t of Cmty. Affairs v.

Burdine, 450 U.S. 248 (1981) (burden shifting for claims

of sex discrimination under Title VII). Moreover, this

Court has recognized that “Congress can prohibit laws

with discriminatory effects in order to prevent racial

discrimination in violation of the Equal Protection

Clause.” Boerne, 521 U.S. at 529 (citing cases); see

South Carolina v. Katzenbach, 383 U.S. 301, 325-337

(1966) (upholding constitutionality of Section 5 of

Voting Rights Act, 42 U.S.C. 19738c, which prohibits

29

covered jurisdictions from implementing any electoral

change that is discriminatory in effect, even if no

discriminatory intent is shown); see also Garrett, 531

U.S. at 373-374 (discussing South Carolina v. Katzen-

bach with approval); Lopez v. Monterey County, 525

U.S. 266, 283 (1999). Here, Congress did not impose an

effects test, but simply shifted the burden to the State

to prove a non-discriminatory reason for a wage dis-

parity between men and women doing the same job.

Given the “wide latitude” to which Congress is entitled

in exercising its comprehensive remedial power under

Section 5, Florida Prepaid, 527 U.S. at 639 (quoting

Boerne, 521 U.S. at 519-520), the Equal Pay Act’s

scheme to detect and deter sex discrimination in wages

is an appropriate exercise of Congress’s Section 5

authority.

Nor was Congress required, as petitioner asserts

(Pet. 17), to apply the Equal Pay Act only to those

States identified as most likely to engage in sex

discrimination in employment. This Court has not

required Congress to enforce the Fourteenth Amend-

ment on a state-by-state basis. It is true that the Court

has observed that the geographic restrictions in certain

provisions of the Voting Rights Act serve to assure

that those provisions are congruent and proportional to

the constitutional problems that they address. See, ¢.g.,

Boerne, 521 U.S. at 532-533. The Court has also made

clear, however, that Section 5 legislation does not

require “geographic restrictions, or egregious predi-

cates.” Ibid. In fact, this Court has repeatedly upheld

other provisions of the Voting Rights Act that apply

nationwide as valid Section 5 legislation. See Oregon v.

Mitchell, 400 U.S. 112, 118 (1970) (nationwide ban on

literacy tests); Katzenbach v. Morgan, 384 U.S. 641

(1966) (nationwide ban on English literacy require-

30

ments). Singling out particular jurisdictions for indi-

vidualized prohibitions, while sometimes justifiable, is

highly unusual, administratively difficult, and disrup-

tive of comity. See Katzenbach, 383 U.S. at 328-329.

Here, moreover, the record before Congress indicated

that the constitutional problem was not limited to a few

States or to a single region. See, ¢.g., pp. 16-23, 24-25

notes 9-10, 12-15, 17, 22-23, supra. Finally, the difficul-

ties in proving discriminatory intent that Congress

sought to address through the burden-shifting scheme

of the Equal Pay Act arise in every case, regardless of

jurisdiction. Congress was entitled to conclude that

effective enforcement of the Equal Protection Clause is

important in all jurisdictions, even in those where

violations might be less frequent.”

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

THEODORE B. OLSON

Solicitor General

RALPH F. BoyD, JR.

Assistant Attorney General

JESSICA DUNSAY SILVER

KEVIN RUSSELL

Attorneys

NOVEMBER 2002

2 Petitioner also contends (Pet. 21-22) that, as a matter of law, a

university should be able to defeat a Title VII claim of pay

disparity by establishing that the reason for the disparity is the

need to pay a sufficient salary to attract a new faculty member.

The United States intervened in this case solely to address peti-

tioner’s Eleventh Amendment challenge to the Equal Pay Act and,

consequently, does not address that second question.