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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2002
- **Citation:** 537 U.S. 1087

## Text

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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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_0268%3A3. Public record. Not legal advice.