528 u.s. 62 kimel v. florida bd. of regents 631...judicial branch. u.s.c.a. const.amend. 14. 16....

631KIMEL v. FLORIDA BD. OF REGENTSCite as 120 S.Ct. 631 (2000)

528 U.S. 62

528 U.S. 62, 145 L.Ed.2d 522

S 62J. Daniel KIMEL, Jr.,et al., Petitioners,

v.

FLORIDA BOARD OFREGENTS et al.

United States, petitioner,

v.

Florida Board of Regents et al.Nos. 98–791, 98–796.

Argued Oct. 13, 1999.

Decided Jan. 11, 2000.

Employees brought action againstAlabama state university under Age Dis-crimination in Employment Act. The Unit-ed States District Court for the NorthernDistrict of Alabama, William M. Acker, Jr.,J., 938 F.Supp. 785, granted state universi-ty’s motion to dismiss, holding that ADEAdid not abrogate states’ Eleventh Amend-ment immunity. Employees appealed. Cur-rent and former employees of FloridaState University brought ADEA actionagainst Florida Board of Regents. TheUnited States District Court for theNorthern District of Florida, Maurice M.Paul, J., denied Board’s motion to dismisson grounds of Eleventh Amendment im-munity. Board appealed. Employeebrought action against Florida Departmentof Corrections. The United States DistrictCourt for the Northern District of Florida,Robert L. Hinkle, J., denied Department’smotion to dismiss on grounds of EleventhAmendment immunity. Department ap-pealed. United States intervened in allthree actions to defend ADEA’s abrogationof Eleventh Amendment immunity. Ap-peals were consolidated. The Eleventh Cir-cuit Court of Appeals, Edmondson, CircuitJudge, 139 F.3d 1426, held that ADEA didnot abrogate states’ Eleventh Amendmentimmunity. Certiorari was granted. The Su-

preme Court, Justice O’Connor, held thatADEA did not validly abrogate states’Eleventh Amendment immunity from suitby private individuals, abrogating Cooperv. New York State Office of Mental Health;Migneault v. Peck; Coger v. Board of Re-gents of the State of Tenn.; Keeton v. Uni-versity of Nev. System; Scott v. Universityof Miss.; Goshtasby v. Board of Trustees ofthe Univ. of Ill.

Affirmed.

Justice Stevens concurred in part, dis-sented in part, and filed opinion in whichJustices Souter, Ginsburg, and Breyerjoined.

Justice Thomas concurred in part, dis-sented in part, and filed opinion in whichJustice Kennedy joined.

1. Federal Courts O265

The Eleventh Amendment stands notso much for what it says, but for thepresupposition which it confirms.U.S.C.A. Const.Amend. 11.


The Constitution does not provide forfederal jurisdiction over suits against non-consenting States. U.S.C.A. Const.Amend. 11.

3. Civil Rights O103

Constitutional Law O243.2

Federal Courts O265

ADEA did not validly abrogate states’Eleventh Amendment immunity from suitby private individuals; although ADEAcontained clear statement of Congress’ in-tent to abrogate states’ immunity, the ab-rogation exceeded Congress’ authority un-der enforcement clause of FourteenthAmendment; abrogating Cooper v. NewYork State Office of Mental Health, 162F.3d 770; Migneault v. Peck, 158 F.3d1131; Coger v. Board of Regents of the

632 120 SUPREME COURT REPORTER 528 U.S. 62

State of Tenn., 154 F.3d 296; Keeton v.University of Nev. System, 150 F.3d 1055;Scott v. University of Miss., 148 F.3d 493;Goshtasby v. Board of Trustees of theUniv. of Ill., 141 F.3d 761. U.S.C.A.Const.Amends. 11, 14, § 5; Fair LaborStandards Act of 1938, §§ 3(x), 16, 29U.S.C.A. §§ 203(x), 216b; Age Discrimina-tion in Employment Act of 1967, § 7(b), 29U.S.C.A. § 626(b).

4. Federal Courts O265To determine whether a federal stat-

ute properly subjects states to suits byindividuals, the Court of Appeals applies asimple but stringent test: Congress mayabrogate the states’ constitutionally se-cured immunity from suit in federal courtonly by making its intention unmistakablyclear in the language of the statute.U.S.C.A. Const.Amend. 11.

5. Civil Rights O406.1The FLSA’s enforcement provisions

are incorporated into the ADEA, and thoseremedial options operate together with theADEA’s enforcement provision. Fair La-bor Standards Act of 1938, § 16, 29U.S.C.A. §§ 216b; Age Discrimination inEmployment Act of 1967, § 7(b), 29U.S.C.A. § 626(b).

6. Federal Courts O265The clear statement inquiry into

whether a federal statute properly sub-jects states to suits by individuals focuseson what Congress did enact, not when itdid so, and ambiguity will not be inferredfrom the sequence in which a clear textualstatement is added to a statute. U.S.C.A.Const.Amend. 11.

7. Federal Courts O265Congress lacks power under the Con-

stitution’s Article 1, which governs the leg-islative branch, to abrogate the states’ sov-ereign immunity. U.S.C.A. Const. Art. 1,§ 1.

8. Federal Courts O265Even when the Constitution vests in

Congress’ complete lawmaking authority

over a particular area, the EleventhAmendment prevents congressional autho-rization of suits by private parties againstunconsenting states. U.S.C.A. Const.Amend. 11.


Congress’ powers under the Constitu-tion’s Article 1, which governs the legisla-tive branch, do not include the power tosubject states to suit at the hands of pri-vate individuals. U.S.C.A. Const. Art. 1,§ 1.

10. Constitutional Law O82(6.1)

The enforcement clause of the Four-teenth Amendment grants Congress theauthority to abrogate the states’ sovereignimmunity. U.S.C.A. Const.Amend. 14,§ 5.


Federal Courts O265

The Eleventh Amendment, and theprinciple of state sovereignty which it em-bodies, are necessarily limited by the en-forcement provisions of the FourteenthAmendment. U.S.C.A. Const.Amends. 11,14, § 5.


It is for Congress in the first instanceto determine whether and what legislationis needed to secure the guarantees of theFourteenth Amendment, and its conclu-sions are entitled to much deference.U.S.C.A. Const.Amend. 14, § 5.


Congress’ power under the enforce-ment clause of the Fourteenth Amend-ment is not confined to the enactment oflegislation that merely parrots the precisewording of the Fourteenth Amendment;rather, Congress’ power to enforce theAmendment includes the authority both toremedy and to deter violation of rightsguaranteed thereunder by prohibiting asomewhat broader swath of conduct, in-cluding that which is not itself forbidden


528 U.S. 62

by the Amendment’s text. U.S.C.A.Const.Amend. 14, § 5.


Congress cannot decree the substanceof the Fourteenth Amendment’s restric-tions on the states; it has been given thepower to enforce, not the power to deter-mine what constitutes a constitutional vio-lation. U.S.C.A. Const.Amend. 14, § 5.

15. Constitutional Law O67

The ultimate interpretation and deter-mination of the Fourteenth Amendment’ssubstantive meaning is the province of thejudicial branch. U.S.C.A. Const.Amend.14.


There must be a congruence and pro-portionality between the injury to be pre-vented or remedied and the meansadopted to that end in order for a Con-gressional enactment to be appropriate re-medial legislation under the FourteenthAmendment’s enforcement clause, as op-posed to a substantive redefinition of theFourteenth Amendment right at issue.U.S.C.A. Const.Amend. 14, § 5.

17. Constitutional Law O213.1(1)

Age is not a suspect classification un-der the equal protection clause. U.S.C.A.Const.Amend. 14.


States may discriminate on the basisof age without offending the FourteenthAmendment’s equal protection clause if theage classification in question is rationallyrelated to a legitimate state interest.U.S.C.A. Const.Amend. 14.


The rationality commanded by theequal protection clause does not requirestates to match age distinctions and thelegitimate interests they serve with razor-like precision. U.S.C.A. Const.Amend. 14.

20. Constitutional Law O213.1(2), 215,224(1)

When conducting rational basis reviewin an equal protection challenge, the Su-preme Court we will not overturn govern-ment action unless the varying treatmentof different groups or persons is so unre-lated to the achievement of any combina-tion of legitimate purposes that the Courtcan only conclude that the government’sactions were irrational; in contrast, when astate discriminates on the basis of race orgender, the Court requires a tighter fitbetween the discriminatory means and thelegitimate ends they serve. U.S.C.A.Const.Amend. 14.

21. Constitutional Law O211(1)Under the equal protection clause of

the Fourteenth Amendment, a state mayrely on age as a proxy for other qualities,abilities, or characteristics that are rele-vant to the state’s legitimate interests; thatage proves to be an inaccurate proxy inany individual case is irrelevant. U.S.C.A.Const.Amend. 14.

22. Constitutional Law O213.1(2)Where rationality is the test, a state

does not violate the equal protection clausemerely because the classifications made byits laws are imperfect. U.S.C.A. Const.Amend. 14.

23. Constitutional Law O213.1(2)Because an age classification is pre-

sumptively rational, the individual chal-lenging its constitutionality under theequal protection clause bears the burdenof proving that the facts on which theclassification is apparently based could notreasonably be conceived to be true by thegovernmental decisionmaker. U.S.C.A.Const.Amend. 14.

24. Constitutional Law O47Whether state classifications on the

basis of age violate the equal protectionclause cannot be determined on a person-by-person basis. U.S.C.A. Const.Amend.14.


25. Constitutional Law O213.1(2)The equal protection clause permits

states to draw lines on the basis of agewhen they have a rational basis for doingso at a class-based level, even if it isprobably not true that those reasons arevalid in the majority of cases. U.S.C.A.Const.Amend. 14.

26. Civil Rights O168.1The ADEA’s exception permitting em-

ployers to engage in otherwise prohibitedconduct ‘‘where the differentiation is basedon reasonable factors other than age’’makes clear that the employer cannot relyon age as a proxy for an employee’s re-maining characteristics, such as productivi-ty, but must instead focus on those factorsdirectly. Age Discrimination in Employ-ment Act of 1967, § 4(f)(1), 29 U.S.C.A.§ 623(f)(1).

27. Constitutional Law O82(6.1)The appropriateness of remedial mea-

sures under the enforcement clause of theFourteenth Amendment must be consid-ered in light of the evil presented; strongmeasures appropriate to address one harmmay be an unwarranted response to anoth-er, lesser one. U.S.C.A. Const.Amend. 14,§ 5.

Syllabus *

The Age Discrimination in Employ-ment Act of 1967 (ADEA or Act), asamended, makes it unlawful for an em-ployer, including a State, ‘‘to fail or refuseto hire or to discharge any individual orotherwise discriminate against any individ-ual TTT because of such individual’s age.’’29 U.S.C. § 623(a)(1). Petitioners, threesets of plaintiffs, filed suit under theADEA against respondents, their stateemployers. Petitioners’ suits sought mon-ey damages for respondents’ alleged dis-crimination on the basis of age. Respon-dents in all three cases moved to dismissthe suits on the basis of the Eleventh

Amendment. The District Court in onecase granted the motion to dismiss, whilein each of the remaining cases the DistrictCourt denied the motion. All three deci-sions were appealed and consolidated be-fore the Eleventh Circuit. PetitionerUnited States intervened on appeal to de-fend the constitutionality of the ADEA’sabrogation of the States’ Eleventh Amend-ment immunity. In a divided panel opin-ion, the Eleventh Circuit held that theADEA does not abrogate the States’ Elev-enth Amendment immunity.

Held: Although the ADEA does con-tain a clear statement of Congress’ intentto abrogate the States’ immunity, that ab-rogation exceeded Congress’ authority un-der § 5 of the Fourteenth Amendment.Pp. 640–650.

(a) The ADEA satisfies the simplebut stringent test this Court uses to deter-mine whether a federal statute properlysubjects States to suits by individuals:Congress made its intention to abrogatethe States’ immunity unmistakably clear inthe language of the statute. Dellmuth v.Muth, 491 U.S. 223, 228, 109 S.Ct. 2397,105 L.Ed.2d 181. The ADEA states thatits provisions ‘‘shall be enforced in accor-dance with the powers, remedies, and pro-cedures provided in sections 211(b), 216(except for subsection (a) thereof), and 217of this title, and subsection (c) of thissection.’’ 29 U.S.C. § 626(b). Section216(b), in turn, authorizes employees tomaintain actions for backpay ‘‘against anyemployer (including a public agency) inany Federal or State court of competentjurisdiction TTTT’’ Section 203(x) defines‘‘public agency’’ to include ‘‘the govern-ment of a State or political S 63subdivisionthereof,’’ and ‘‘any agency of TTT a State,or a political subdivision of a State.’’ Thetext of § 626(b) forecloses respondents’claim that the existence of an enforcementprovision in the ADEA itself renders Con-

* The syllabus constitutes no part of the opinionof the Court but has been prepared by theReporter of Decisions for the convenience of

the reader. See United States v. Detroit Tim-ber & Lumber Co., 200 U.S. 321, 337, 26 S.Ct.282, 50 L.Ed. 499.


528 U.S. 64

gress’ intent to incorporate § 216(b)’s clearstatement of abrogation ambiguous. Con-gress’ use of the phrase ‘‘court of compe-tent jurisdiction’’ in § 216(b) also does notrender its intent to abrogate less thanclear. Finally, because the clear state-ment inquiry focuses on what Congress didenact, not when it did so, the Court willnot infer ambiguity from the sequence inwhich a clear textual statement is added toa statute. Pp. 640–642.

(b) This Court held in EEOC v. Wyo-ming, 460 U.S. 226, 243, 103 S.Ct. 1054, 75L.Ed.2d 18, that the ADEA constitutes avalid exercise of Congress’ Article I Com-merce Clause power. Congress’ powersunder Article I, however, do not includethe power to subject States to suit at thehands of private individuals. SeminoleTribe of Fla. v. Florida, 517 U.S. 44, 72–73, 116 S.Ct. 1114, 134 L.Ed.2d 252. Sec-tion 5 of the Fourteenth Amendment doesgrant Congress the authority to abrogatethe States’ sovereign immunity. Fitz-patrick v. Bitzer, 427 U.S. 445, 456, 96S.Ct. 2666, 49 L.Ed.2d 614. Pp. 642–644.

(c) Section 5 of the FourteenthAmendment is an affirmative grant of pow-er to Congress. City of Boerne v. Flores,521 U.S. 507, 517, 117 S.Ct. 2157, 138L.Ed.2d 624. That power includes theauthority both to remedy and to deter theviolation of rights guaranteed thereunderby prohibiting a somewhat broader swathof conduct, including that which is notitself forbidden by the Amendment’s text.Congress cannot, however, decree the sub-stance of the Fourteenth Amendment’s re-strictions on the States. Id., at 519, 117S.Ct. 2157. The ultimate interpretationand determination of the Amendment’ssubstantive meaning remains the provinceof the Judicial Branch. This Court hasheld that for remedial legislation to beappropriate under § 5, ‘‘[t]here must be acongruence and proportionality betweenthe injury to be prevented or remediedand the means adopted to that end.’’ Id.,at 520, 117 S.Ct. 2157. Pp. 644–645.

(d) The ADEA is not ‘‘appropriatelegislation’’ under § 5 of the FourteenthAmendment. The ADEA’s purported ab-rogation of the States’ sovereign immunityis accordingly invalid. Pp. 645–650.

(1) The substantive requirements theADEA imposes on state and local govern-ments are disproportionate to any uncon-stitutional conduct that conceivably couldbe targeted by the Act. Age is not a sus-pect classification under the Equal Protec-tion Clause. See, e.g., Gregory v. Ashcroft,501 U.S. 452, 470, 111 S.Ct. 2395, 115L.Ed.2d 410. States therefore may dis-criminate on the basis of age without of-fending the Fourteenth Amendment if theage classification in question is rationallyrelated to a legitimate state interest. Therationality commanded by the Equal Pro-tection Clause does not require States tomatch age distinctions and the legitimateS 64interests they serve with razorlike preci-sion. Rather, a State may rely on age as aproxy for other qualities, abilities, or char-acteristics that are relevant to the State’slegitimate interests. That age proves tobe an inaccurate proxy in any individualcase is irrelevant. Judged against thebackdrop of this Court’s equal protectionjurisprudence, it is clear that the ADEA is‘‘so out of proportion to a supposed reme-dial or preventive object that it cannot beunderstood as responsive to, or designedto prevent, unconstitutional behavior.’’City of Boerne, supra, at 532, 117 S.Ct.2157. The Act, through its broad restric-tion on the use of age as a discriminatingfactor, prohibits substantially more stateemployment decisions and practices thanwould likely be held unconstitutional underthe applicable equal protection, rationalbasis standard. Petitioners’ reliance onthe ‘‘bona fide occupational qualification’’defense of § 623(f)(1) is misplaced. ThisCourt’s decision in Western Air Lines, Inc.v. Criswell, 472 U.S. 400, 105 S.Ct. 2743, 86L.Ed.2d 321, conclusively demonstratesthat the defense is a far cry from therational basis standard the Court appliesto age discrimination under the Equal Pro-


tection Clause. Although it is true thatthe existence of the defense makes theADEA’s prohibition of age discriminationless than absolute, the Act’s substantiverequirements nevertheless remain at a lev-el akin to the Court’s heightened scrutinycases under the Equal Protection Clause.The exception in § 623(f)(1) that permitsemployers to engage in conduct otherwiseprohibited by the Act ‘‘where the differen-tiation is based on reasonable factors otherthan age’’ confirms, rather than disproves,the conclusion that the ADEA extends be-yond the requirements of the Equal Pro-tection Clause. That exception makesclear that the employer cannot rely on ageas a proxy for an employee’s characteris-tics, Hazen Paper Co. v. Biggins, 507 U.S.604, 611, 113 S.Ct. 1701, 123 L.Ed.2d 338,whereas the Constitution permits such re-liance, see, e.g., Gregory, supra, at 473, 111S.Ct. 2395. Pp. 645–648.

(2) That the ADEA prohibits very lit-tle conduct likely to be held unconstitution-al, while significant, does not alone providethe answer to the § 5 inquiry. Difficultand intractable problems often requirepowerful remedies, and this Court has nev-er held that § 5 precludes Congress fromenacting reasonably prophylactic legisla-tion. One means by which the Court hasdetermined the difference between a stat-ute that constitutes an appropriate remedyand one that attempts to substantively re-define the States’ legal obligations is byexamining the legislative record containingthe reasons for Congress’ action. See, e.g.,City of Boerne, supra, at 530–531, 117S.Ct. 2157. A review of the ADEA’s legis-lative record as a whole reveals that Con-gress had virtually no reason to believethat state and local governments were un-constitutionally discriminating againsttheir employees on the basis of age. Con-gress never identified any pattern of agediscrimination by the States, much lessany discrimination whatsoever that rose tothe level of constituStional65 violation. Thatfailure confirms that Congress had no rea-son to believe that broad prophylactic leg-

islation was necessary in this field. Pp.648–650.

(e) Today’s decision does not signalthe end of the line for employees who findthemselves subject to age discrimination atthe hands of their state employers. Thoseemployees are protected by state age dis-crimination statutes, and may recovermoney damages from their state employ-ers, in almost every State of the Union. P.650.

139 F.3d 1426, affirmed.O’CONNOR, J., delivered the opinion

of the Court, Parts I, II, and IV of whichwere joined by REHNQUIST, C.J., andSCALIA, KENNEDY, and THOMAS, JJ.,and Part III of which was joined byREHNQUIST, C. J., and STEVENS,SCALIA, SOUTER, GINSBURG, andBREYER, JJ. STEVENS, J., filed anopinion dissenting in part and concurringin part, in which SOUTER, GINSBURG,and BREYER, JJ., joined, post, p. 650.THOMAS, J., filed an opinion concurringin part and dissenting in part, in whichKENNEDY, J., joined, post, p. 654.

Jeremiah A. Collins, Washington, DC,for J. Daniel Kimel, Jr.

Barbara D. Underwood, Washington,DC, for United States.

Jeffrey S. Sutton, Columbus, OH, forrespondents.

S 66Justice O’CONNOR delivered theopinion of the Court.

The Age Discrimination in EmploymentAct of 1967 (ADEA or Act), 81 Stat. 602,as amended, 29 U.S.C. § 621 et seq. (1994ed. and Supp. III), makes it unlawful foran employer, including a State, ‘‘to fail orrefuse to hire or to discharge any individu-al or otherwise discriminate against anyindividual TTT because of such individual’sage.’’ 29 U.S.C. § 623(a)(1). In thesecases, three sets of plaintiffs filed suitunder the Act, seeking money damages fortheir state employers’ alleged discrimina-


528 U.S. 68

tion on the basis of age. In each case, thestate employer moved to dismiss the suiton the basis of its Eleventh Amendmentimmunity. The District Court in one casegranted the motion to dismiss, while ineach of the remaining cases the DistrictCourt denied the motion. Appeals in thethree cases were consolidated before theCourt of Appeals for the Eleventh Circuit,which held that the ADEA does not validlyabrogate the States’ Eleventh Amendmentimmunity. In these cases, we are asked toconsider whether the ADEA contains aclear S 67statement of Congress’ intent toabrogate the States’ Eleventh Amendmentimmunity and, if so, whether the ADEA isa proper exercise of Congress’ constitu-tional authority. We conclude that theADEA does contain a clear statement ofCongress’ intent to abrogate the States’immunity, but that the abrogation exceed-ed Congress’ authority under § 5 of theFourteenth Amendment.

I

AThe ADEA makes it unlawful for an

employer ‘‘to fail or refuse to hire or todischarge any individual or otherwise dis-criminate against any individual with re-spect to his compensation, terms, condi-tions, or privileges of employment, becauseof such individual’s age.’’ 29 U.S.C.§ 623(a)(1). The Act also provides severalexceptions to this broad prohibition. Forexample, an employer may rely on agewhere it ‘‘is a bona fide occupational quali-fication reasonably necessary to the nor-mal operation of the particular business.’’§ 623(f)(1). The Act also permits an em-ployer to engage in conduct otherwise pro-hibited by § 623(a)(1) if the employer’saction ‘‘is based on reasonable factors oth-er than age,’’ § 623(f)(1), or if the employ-er ‘‘discharge[s] or otherwise discipline[s]an individual for good cause,’’ § 623(f)(3).Although the Act’s prohibitions originallyapplied only to individuals ‘‘at least fortyyears of age but less than sixty-five yearsof age,’’ 81 Stat. 607, 29 U.S.C. § 631 (1964

ed., Supp. III), Congress subsequently re-moved the upper age limit, and the Actnow covers individuals age 40 and over, 29U.S.C. § 631(a). Any person aggrieved byan employer’s violation of the Act ‘‘maybring a civil action in any court of compe-tent jurisdiction’’ for legal or equitable re-lief. § 626(c)(1). Section 626(b) also per-mits aggrieved employees to enforce theAct through certain provisions of the FairLabor Standards Act of 1938 (FLSA), andthe ADEA S 68specifically incorporates§ 16(b) of the FLSA, 29 U.S.C. § 216(b).

Since its enactment, the ADEA’s scopeof coverage has been expanded by amend-ment. Of particular importance to thesecases is the Act’s treatment of state em-ployers and employees. When firstpassed in 1967, the ADEA applied only toprivate employers. See 29 U.S.C.§ 630(b) (1964 ed., Supp. III) (definingterm ‘‘employer’’ to exclude ‘‘the UnitedStates, a corporation wholly owned by theGovernment of the United States, or aState or political subdivision thereof ’’).In 1974, in a statute consisting primarily ofamendments to the FLSA, Congress ex-tended application of the ADEA’s substan-tive requirements to the States. Fair La-bor Standards Amendments of 1974 (1974Act), § 28, 88 Stat. 74. Congress accom-plished that expansion in scope by a sim-ple amendment to the definition of ‘‘em-ployer’’ contained in 29 U.S.C. § 630(b):‘‘The term [employer] also means TTT aState or political subdivision of a State andany agency or instrumentality of a Stateor a political subdivision of a StateTTTT’’Congress also amended the ADEA’s defi-nition of ‘‘employee,’’ still defining theterm to mean ‘‘an individual employed byany employer,’’ but excluding elected offi-cials and appointed policymakers at thestate and local levels. § 630(f). In thesame 1974 Act, Congress amended 29U.S.C. § 216(b), the FLSA enforcementprovision incorporated by reference intothe ADEA. 88 Stat. 61. Section 216(b)now permits an individual to bring a civil


action ‘‘against any employer (including apublic agency) in any Federal or Statecourt of competent jurisdiction.’’ Section203(x) defines ‘‘[p]ublic agency’’ to include‘‘the government of a State or politicalsubdivision thereof,’’ and ‘‘any agency ofTTT a State, or a political subdivision of aState.’’ Finally, in the 1974 Act, Congressadded a provision prohibiting age discrimi-nation generally in employment at theFederal Government. 88 Stat. 74, 29U.S.C. § 633a (1994 ed. and Supp. III).Under the current ADEA, S 69mandatoryage limits for law enforcement officers andfirefighters—at federal, state, and locallevels—are exempted from the statute’scoverage. 5 U.S.C. §§ 3307(d), (e); 29U.S.C. § 623(j) (1994 ed., Supp. III).

BIn December 1994, Roderick MacPher-

son and Marvin Narz, ages 57 and 58 atthe time, filed suit under the ADEAagainst their employer, the University ofMontevallo, in the United States DistrictCourt for the Northern District of Ala-bama. In their complaint, they allegedthat the university had discriminatedagainst them on the basis of their age, thatit had retaliated against them for filingdiscrimination charges with the Equal Em-ployment Opportunity Commission(EEOC), and that its College of Business,at which they were associate professors,employed an evaluation system that had adisparate impact on older faculty mem-bers. MacPherson and Narz sought de-claratory and injunctive relief, backpay,promotions to full professor, and compen-satory and punitive damages. App. 21–25.The University of Montevallo moved todismiss the suit for lack of subject matterjurisdiction, contending it was barred bythe Eleventh Amendment. No party dis-putes the District Court’s holding that theuniversity is an instrumentality of theState of Alabama. On September 9, 1996,the District Court granted the university’smotion. MacPherson v. University ofMontevallo, 938 F.Supp. 785 (N.D.Ala.

1996), App. to Pet. for Cert. in No. 98–796,pp. 63a–71a. The court determined that,although the ADEA contains a clear state-ment of Congress’ intent to abrogate theStates’ Eleventh Amendment immunity,Congress did not enact or extend theADEA under its Fourteenth Amendment§ 5 enforcement power. Id., at 67a, 69a–70a. The District Court therefore heldthat the ADEA did not abrogate theStates’ Eleventh Amendment immunity.Id., at 71a.

S 70In April 1995, a group of current andformer faculty and librarians of FloridaState University, including J. Daniel Ki-mel, Jr., the named petitioner in one oftoday’s cases, filed suit against the FloridaBoard of Regents in the United StatesDistrict Court for the Northern District ofFlorida. Complaint and Demand for JuryTrial in No. 95–CV–40194, 1 Record, Doc.No. 2. The complaint was subsequentlyamended to add as plaintiffs current andformer faculty and librarians of FloridaInternational University. App. 41. Theplaintiffs, all over age 40, alleged that theFlorida Board of Regents refused to re-quire the two state universities to allocatefunds to provide previously agreed uponmarket adjustments to the salaries of eligi-ble university employees. The plaintiffscontended that the failure to allocate thefunds violated both the ADEA and theFlorida Civil Rights Act of 1992, Fla. Stat.§ 760.01 et seq. (1997 and Supp.1998), be-cause it had a disparate impact on the basepay of employees with a longer record ofservice, most of whom were older employ-ees. App. 42–45. The plaintiffs soughtbackpay, liquidated damages, and perma-nent salary adjustments as relief. Id., at46. The Florida Board of Regents movedto dismiss the suit on the grounds of Elev-enth Amendment immunity. On May 17,1996, the District Court denied the motion,holding that Congress expressed its intentto abrogate the States’ Eleventh Amend-ment immunity in the ADEA, and that theADEA is a proper exercise of congression-al authority under the Fourteenth Amend-


528 U.S. 72

ment. No. TCA 95–40194–MMP (NDFla.), App. to Pet. for Cert. in No. 98–796,pp. 57a–62a.

In May 1996, Wellington Dickson filedsuit against his employer, the Florida De-partment of Corrections, in the UnitedStates District Court for the NorthernDistrict of Florida. Dickson alleged thatthe state employer failed to promote himbecause of his age and because he hadfiled grievances with respect to the allegedacts of age discrimination. Dickson soughtinjunctive relief, backpay, and comSpensato-ry71 and punitive damages. App. 83–109.The Florida Department of Correctionsmoved to dismiss the suit on the groundsthat it was barred by the Eleventh Amend-ment. The District Court denied that mo-tion on November 5, 1996, holding thatCongress unequivocally expressed its in-tent to abrogate the States’ EleventhAmendment immunity in the ADEA, andthat Congress had authority to do so un-der § 5 of the Fourteenth Amendment.Dickson v. Florida Dept. of Corrections,No. 5:96cv207–RH (ND Fla.), App. to Pet.for Cert. in No. 98–796, pp. 72a–76a.

The plaintiffs in the MacPherson case,and the state defendants in the Kimel andDickson cases, appealed to the Court ofAppeals for the Eleventh Circuit. TheUnited States also intervened in all threecases to defend the ADEA’s abrogation ofthe States’ Eleventh Amendment immuni-ty. The Court of Appeals consolidated theappeals and, in a divided panel opinion,held that the ADEA does not abrogate theStates’ Eleventh Amendment immunity.139 F.3d 1426, 1433 (1998). JudgeEdmondson, although stating that he be-lieved ‘‘good reason exists to doubt thatthe ADEA was (or could have been prop-erly) enacted pursuant to the FourteenthAmendment,’’ id., at 1430, rested his opin-ion on the ADEA’s lack of unmistakablyclear language evidencing Congress’ intentto abrogate the States’ sovereign immuni-ty. Ibid. He noted that the ADEA lacksany reference to the Eleventh Amendment

or to the States’ sovereign immunity anddoes not contain, in one place, a plainstatement that States can be sued by indi-viduals in federal court. Id., at 1430–1431.Judge Cox concurred in JudgeEdmondson’s ultimate conclusion that theStates are immune from ADEA suitsbrought by individuals in federal court.Id., at 1444. Judge Cox, however, chosenot to address ‘‘the thorny issue of Con-gress’s intent,’’ id., at 1445, but insteadfound that Congress lacks the power under§ 5 of the Fourteenth Amendment to ab-rogate the States’ Eleventh Amendmentimmunity under the ADEA. Ibid. S 72Heconcluded that ‘‘the ADEA confers rightsfar more extensive than those the Four-teenth Amendment provides,’’ id., at 1446,and that ‘‘Congress did not enact theADEA as a proportional response to anywidespread violation of the elderly’s consti-tutional rights.’’ Id., at 1447. ChiefJudge Hatchett dissented from bothgrounds. Id., at 1434.

We granted certiorari, 525 U.S. 1121,119 S.Ct. 901, 142 L.Ed.2d 901 (1999), toresolve a conflict among the FederalCourts of Appeals on the question whetherthe ADEA validly abrogates the States’Eleventh Amendment immunity. Com-pare Cooper v. New York State Office ofMental Health, 162 F.3d 770 (C.A.2 1998)(holding that the ADEA does validly abro-gate the States’ Eleventh Amendment im-munity), cert. pending, No. 98–1524; Mig-neault v. Peck, 158 F.3d 1131 (C.A.10 1998)(same), cert. pending, No. 98–1178; Cogerv. Board of Regents of State of Tenn., 154F.3d 296 (C.A.6 1998) (same), cert. pend-ing, No. 98–821; Keeton v. University ofNev. System, 150 F.3d 1055 (C.A.9 1998)(same); Scott v. University of Miss., 148F.3d 493 (C.A.5 1998) (same); and Gosh-tasby v. Board of Trustees of Univ. of Ill.,141 F.3d 761 (C.A.7 1998) (same), withHumenansky v. Regents of Univ. ofMinn., 152 F.3d 822 (C.A.8 1998) (holdingthat the ADEA does not validly abrogatethe States’ Eleventh Amendment immuni-


ty), cert. pending, No. 98–1235; and 139F.3d 1426 (C.A.11 1998) (case below).

II[1–3] The Eleventh Amendment

states:‘‘The Judicial power of the United

States shall not be construed to extendto any suit in law or equity, commencedor prosecuted against one of the UnitedStates by Citizens of another State, orby Citizens or Subjects of any ForeignState.’’

Although today’s cases concern suitsbrought by citizens against their ownStates, this Court has long ‘‘ ‘understoodthe Eleventh Amendment to stand not somuch for what it S 73says, but for the pre-supposition TTT which it confirms.’ ’’ Semi-nole Tribe of Fla. v. Florida, 517 U.S. 44,54, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996)(quoting Blatchford v. Native Village ofNoatak, 501 U.S. 775, 779, 111 S.Ct. 2578,115 L.Ed.2d 686 (1991)). Accordingly, forover a century now, we have made clearthat the Constitution does not provide forfederal jurisdiction over suits against non-consenting States. College Savings Bankv. Florida Prepaid Postsecondary Ed. Ex-pense Bd., 527 U.S. 666, 669–670, 119 S.Ct.2219, 144 L.Ed.2d 605 (1999); SeminoleTribe, supra, at 54, 116 S.Ct. 1114; seeHans v. Louisiana, 134 U.S. 1, 15, 10 S.Ct.504, 33 L.Ed. 842 (1890). Petitioners nev-ertheless contend that the States of Ala-bama and Florida must defend the presentsuits on the merits because Congress abro-gated their Eleventh Amendment immuni-ty in the ADEA. To determine whetherpetitioners are correct, we must resolvetwo predicate questions: first, whetherCongress unequivocally expressed its in-tent to abrogate that immunity; and sec-ond, if it did, whether Congress acted pur-suant to a valid grant of constitutionalauthority. Seminole Tribe, supra, at 55,116 S.Ct. 1114.

III[4] To determine whether a federal

statute properly subjects States to suits by

individuals, we apply a ‘‘simple but strin-gent test: ‘Congress may abrogate theStates’ constitutionally secured immunityfrom suit in federal court only by makingits intention unmistakably clear in the lan-guage of the statute.’ ’’ Dellmuth v. Muth,491 U.S. 223, 228, 109 S.Ct. 2397, 105L.Ed.2d 181 (1989) (quoting AtascaderoState Hospital v. Scanlon, 473 U.S. 234,242, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985)).We agree with petitioners that the ADEAsatisfies that test. The ADEA states thatits provisions ‘‘shall be enforced in accor-dance with the powers, remedies, and pro-cedures provided in sections 211(b), 216(except for subsection (a) thereof), and 217of this title, and subsection (c) of thissection.’’ 29 U.S.C. § 626(b). Section216(b), in turn, clearly provides for suitsby individuals against States. That provi-sion authorizes employees to maintain ac-tions for backpay ‘‘against any employer(including a public agency) S 74in any Feder-al or State court of competent jurisdic-tionTTTT’’ Any doubt concerning the identi-ty of the ‘‘public agency’’ defendant namedin § 216(b) is dispelled by looking to§ 203(x), which defines the term to include‘‘the government of a State or politicalsubdivision thereof,’’ and ‘‘any agency ofTTT a State, or a political subdivision of aState.’’ Read as a whole, the plain lan-guage of these provisions clearly demon-strates Congress’ intent to subject theStates to suit for money damages at thehands of individual employees.

[5] Respondents maintain that thesestatutory sections are less than ‘‘unmistak-ably clear’’ for two reasons. Brief forRespondents 15. First, they note that theADEA already contains its own enforce-ment provision, § 626(c)(1), which providesin relevant part that ‘‘[a]ny person ag-grieved may bring a civil action in anycourt of competent jurisdiction for suchlegal or equitable relief as will effectuatethe purposes of this chapter.’’ Respon-dents claim that the existence of§ 626(c)(1) renders Congress’ intent to in-


528 U.S. 76

corporate the clear statement of abroga-tion in § 216(b), the FLSA’s enforcementprovision, ambiguous. The text of theADEA forecloses respondents’ argument.Section 626(b) clearly states that theADEA ‘‘shall be enforced in accordancewith the powers, remedies, and proceduresprovided in [section 216(b) ] and subsec-tion (c) of this section.’’ § 626(b) (emphasisadded). In accord with that statutory lan-guage, we have explained repeatedly that§ 626(b) incorporates the FLSA’s enforce-ment provisions, and that those remedialoptions operate together with § 626(c)(1).See McKennon v. Nashville Banner Pub-lishing Co., 513 U.S. 352, 357, 115 S.Ct.879, 130 L.Ed.2d 852 (1995) (‘‘[TheADEA’s] remedial provisions incorporateby reference the provisions of the FairLabor Standards Act of 1938’’); Hoff-mann–La Roche Inc. v. Sperling, 493 U.S.165, 167, 110 S.Ct. 482, 107 L.Ed.2d 480(1989) (‘‘[T]he ADEA incorporates enforce-ment provisions of the Fair Labor Stan-dards Act of 1938, and provides that theADEA shall be enforced using certain ofthe powers, remedies, and procedures ofthe FLSA’’ (citation omitted)); Lorillardv. Pons, 434 U.S. S 75575, 582, 98 S.Ct. 866,55 L.Ed.2d 40 (1978) (‘‘[B]ut for thosechanges Congress expressly made [in theADEA], it intended to incorporate fully theremedies and procedures of the FLSA’’).Respondents’ argument attempts to createambiguity where, according to the statute’stext and this Court’s repeated interpreta-tions thereof, there is none.

Respondents next point to the phrase‘‘court of competent jurisdiction’’ in§ 216(b), and contend that it makes Con-gress’ intent to abrogate less than clear.Relying on our decision in the distinctcontext of a state waiver of sovereign im-munity, Kennecott Copper Corp. v. StateTax Comm’n, 327 U.S. 573, 66 S.Ct. 745,90 L.Ed. 862 (1946), respondents maintainthat perhaps Congress simply intended topermit an ADEA suit against a State onlyin those cases where the State previouslyhas waived its Eleventh Amendment im-

munity to suit. We disagree. Our deci-sion in Kennecott Copper must be read incontext. The petitioner there contendedthat Utah had waived its Eleventh Amend-ment immunity to suit in federal courtthrough a state statute that authorizedtaxpayers to pay their taxes under protestand ‘‘ ‘thereafter bring an action in anycourt of competent jurisdiction for the re-turn thereofTTTT’ ’’ Id., at 575, n. 1, 66S.Ct. 745 (quoting Utah Code Ann. § 80–5–76 (1943)). Although the statute un-doubtedly provided for suit against theState of Utah in its own courts, we heldthat the statute fell short of the required‘‘clear declaration by a State of its consentto be sued in the federal courts.’’ 327U.S., at 579–580, 66 S.Ct. 745 (emphasisadded). Section 216(b) contains no suchambiguity. The statute authorizes em-ployee suits against States ‘‘in any Federalor State court of competent jurisdiction.’’§ 216(b) (emphasis added). That languageeliminates the ambiguity identified in Ken-necott Copper—whether Utah intended topermit suits against the sovereign in statecourt only, or in state and federal court.Under § 216(b), the answer to that ques-tion is clear—actions may be maintained infederal and state court. That choice oflanguage sufficiently indicates Congress’inStent,76 in the ADEA, to abrogate theStates’ Eleventh Amendment immunity tosuits by individuals.

[6] Although Justice THOMAS con-cedes in his opinion that our cases havenever required that Congress make itsclear statement in a single section or instatutory provisions enacted at the sametime, post, at 657 (opinion concurring inpart and dissenting in part), he concludesthat the ADEA lacks the requisite claritybecause of the ‘‘sequence of events’’ sur-rounding the enactment and amendment of§§ 216(b) and 626(b), post, at 655. JusticeTHOMAS states that he is unwilling toassume that when Congress amended§ 216(b) in 1974, it recognized the conse-quences that amendment would have forthe ADEA. Post, at 655–656. We respect-


fully disagree. The fact that Congressamended the ADEA itself in the same1974 Act makes it more than clear thatCongress understood the consequences ofits actions. Indeed, Congress amended§ 216(b) to provide for suits against Statesin precisely the same Act in which it ex-tended the ADEA’s substantive require-ments to the States. See 1974 Act,§ 6(d)(1), 88 Stat. 61 (amending § 216(b));§ 28(a), 88 Stat. 74 (extending ADEA tothe States). Those provisions confirm forus that the effect on the ADEA of the§ 216(b) amendment was not mere hap-penstance. In any event, we have neverheld that Congress must speak with differ-ent gradations of clarity depending on thespecific circumstances of the relevant leg-islation (e.g., amending incorporated provi-sions as opposed to enacting a statute forthe first time). The clear statement inqui-ry focuses on what Congress did enact, notwhen it did so. We will not infer ambigui-ty from the sequence in which a cleartextual statement is added to a statute.

We also disagree with Justice THOMAS’remaining points, see post, at 657–659. Al-though the ADEA does contain its ownenforcement provision in § 626(c)(1), thetext of § 626(b) acknowledges § 626(c)(1)’sexistence and makes clear that the ADEAalso incorporates § 216(b), save as indicat-ed S 77otherwise in § 626(b)’s proviso. See§ 626(b) (‘‘The provisions of this chaptershall be enforced in accordance with thepowers, remedies, and procedures provid-ed in sectio[n] TTT 216 (except for subsec-tion (a) thereof) TTT and subsection (c) ofthis section ’’ (emphasis added)). We failto see how the interpretation suggested byJustice THOMAS, under which § 626(b)would carry over only those § 216(b) ‘‘em-bellishments’’ not already provided for in§ 626(c)(1) except for the authorization ofsuits against States, see post, at 658, couldbe a permissible one. To accept that in-terpretation, for example, one would haveto conclude that Congress intended to in-corporate only the portion of § 216(b)’sthird sentence that provides for collectiveactions, but not the part of the very same

sentence that authorizes suits againstStates. See § 216(b) (‘‘An action to recov-er the liability prescribed in either of thepreceding sentences may be maintainedagainst any employer (including a publicagency) in any Federal or State court ofcompetent jurisdiction by any one or moreemployees for and in behalf of himself orthemselves and other employees similarlysituated’’).

Justice THOMAS also concludes that§ 216(b) itself fails the clear statementtest. Post, at 659. As we have alreadyexplained, the presence of the word ‘‘com-petent’’ in § 216(b) does not render thatprovision less than ‘‘unmistakably clear.’’See supra, at 641 and this page. JusticeTHOMAS’ reliance on a single phrasefrom our decision in Employees of Dept. ofPublic Health and Welfare of Mo. v. De-partment of Public Health and Welfare ofMo., 411 U.S. 279, 93 S.Ct. 1614, 36L.Ed.2d 251 (1973), see post, at 658–659, assupport for the contrary proposition ispuzzling, given his separate argument withrespect to § 6(d)(2)(A) of the 1974 Act.Crucial to Justice THOMAS’ argument onthat front is his acknowledgment that Con-gress did intend in the 1974 amendmentsto permit ‘‘FLSA plaintiffs who had beenfrustrated by state defendants’ invocationof Eleventh Amendment immunity underEmployees to avail themselves of the new-ly amended § 216(b).’’ Post, at 656; S 78seealso post, at 659. We agree with the impli-cation of that statement: In response toEmployees, Congress clearly intendedthrough ‘‘the newly amended § 216(b)’’ toabrogate the States’ sovereign immunity.In light of our conclusion that Congressunequivocally expressed its intent to abro-gate the States’ Eleventh Amendment im-munity, we now must determine whetherCongress effectuated that abrogation pur-suant to a valid exercise of constitutionalauthority.

IV

AThis is not the first time we have consid-

ered the constitutional validity of the 1974


528 U.S. 80

extension of the ADEA to state and localgovernments. In EEOC v. Wyoming, 460U.S. 226, 243, 103 S.Ct. 1054, 75 L.Ed.2d18 (1983), we held that the ADEA consti-tutes a valid exercise of Congress’ power‘‘[t]o regulate Commerce TTT among theseveral States,’’ Art. I, § 8, cl. 3, and thatthe Act did not transgress any externalrestraints imposed on the commerce powerby the Tenth Amendment. Because wefound the ADEA valid under Congress’Commerce Clause power, we concludedthat it was unnecessary to determinewhether the Act also could be supportedby Congress’ power under § 5 of the Four-teenth Amendment. 460 U.S., at 243, 103S.Ct. 1054. But see id., at 259–263, 103S.Ct. 1054 (Burger, C.J., dissenting). Res-olution of today’s cases requires us to de-cide that question.

[7, 8] In Seminole Tribe, we held thatCongress lacks power under Article I toabrogate the States’ sovereign immunity.517 U.S., at 72–73, 116 S.Ct. 1114. ‘‘Evenwhen the Constitution vests in Congresscomplete lawmaking authority over a par-ticular area, the Eleventh Amendmentprevents congressional authorization ofsuits by private parties against unconsent-ing States.’’ Id., at 72, 116 S.Ct. 1114.Last Term, in a series of three decisions,we reaffirmed that central holding of Sem-inole Tribe. See College Savings Bank,527 U.S., at 672, 119 S.Ct. 2219); FloridaPrepaid Postsecondary Ed. Expense Bd. v.College Savings Bank, S 79527 U.S. 627, 636,119 S.Ct. 2199, 144 L.Ed.2d 575 (1999);Alden v. Maine, 527 U.S. 706, 712, 119S.Ct. 2240, 144 L.Ed.2d 636 (1999). In-deed, in College Savings Bank, we restedour decision to overrule the constructivewaiver rule of Parden v. Terminal R. Co.of Ala. Docks Dept., 377 U.S. 184, 84 S.Ct.1207, 12 L.Ed.2d 233 (1964), in part, on ourSeminole Tribe holding. See College Sav-ings Bank, supra, at 683, 119 S.Ct. 2219(‘‘Recognizing a congressional power to ex-act constructive waivers of sovereign im-munity through the exercise of Article Ipowers would also, as a practical matter,

permit Congress to circumvent the antiab-rogation holding of Seminole Tribe ’’).Under our firmly established precedentthen, if the ADEA rests solely on Con-gress’ Article I commerce power, the pri-vate petitioners in today’s cases cannotmaintain their suits against their state em-ployers.

[9] Justice STEVENS disputes thatwell-established precedent again. Com-pare post, at 650–654 (opinion dissenting inpart and concurring in part), with Alden,supra, at 760, 119 S.Ct. 2240 (SOUTER,J., dissenting); College Savings Bank, 527U.S., at 692, n. 2, 119 S.Ct. 2219 (STE-VENS, J., dissenting); id., at 699–705, 119S.Ct. 2219 (BREYER, J., dissenting);Florida Prepaid, supra, at 664–665, 119S.Ct. 2199 (STEVENS, J., dissenting);Seminole Tribe, 517 U.S., at 76–100, 116S.Ct. 1114 (STEVENS, J., dissenting); id.,at 100–185, 116 S.Ct. 1114 (SOUTER, J.,dissenting). In Alden, we explained that,‘‘[a]lthough the sovereign immunity of theStates derives at least in part from thecommon-law tradition, the structure andhistory of the Constitution make clear thatthe immunity exists today by constitutionaldesign.’’ 527 U.S., at 733, 119 S.Ct. 2240.For purposes of today’s decision, it is suffi-cient to note that we have on more thanone occasion explained the substantial rea-sons for adhering to that constitutionaldesign. See id., at 712–754, 119 S.Ct.2240; College Savings Bank, supra, at669–670, 687–691, 119 S.Ct. 2219; Semi-nole Tribe, supra, at 54–55, 59–73, 116S.Ct. 1114; Pennsylvania v. Union GasCo., 491 U.S. 1, 30–42, 109 S.Ct. 2273, 105L.Ed.2d 1 (1989) (SCALIA, J., concurringin part and dissenting in part). Indeed,the present dissenters’ refusal to acceptthe validity and natural import of decisionslike Hans, rendered over a full centuryago by this Court, makes it difSficult80 toengage in additional meaningful debate onthe place of state sovereign immunity inthe Constitution. Compare Hans, 134U.S., at 10, 14–16, 10 S.Ct. 504, with post,at 652–653 (STEVENS, J., dissenting inpart and concurring in part). Today weadhere to our holding in Seminole Tribe:


Congress’ powers under Article I of theConstitution do not include the power tosubject States to suit at the hands of pri-vate individuals.

[10, 11] Section 5 of the FourteenthAmendment, however, does grant Con-gress the authority to abrogate the States’sovereign immunity. In Fitzpatrick v.Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49L.Ed.2d 614 (1976), we recognized that‘‘the Eleventh Amendment, and the princi-ple of state sovereignty which it embodies,are necessarily limited by the enforcementprovisions of § 5 of the FourteenthAmendment.’’ Id., at 456, 96 S.Ct. 2666(citation omitted). Since our decision inFitzpatrick, we have reaffirmed the validi-ty of that congressional power on numer-ous occasions. See, e.g., College SavingsBank, supra, at 670, 119 S.Ct. 2219; Flori-da Prepaid, supra, at 636–637, 119 S.Ct.2199; Alden, supra, at 756, 119 S.Ct. 2240;Seminole Tribe, supra, at 59, 116 S.Ct.1114. Accordingly, the private petitionersin these cases may maintain their ADEAsuits against the States of Alabama andFlorida if, and only if, the ADEA is appro-priate legislation under § 5.

B[12, 13] The Fourteenth Amendment

provides, in relevant part:‘‘Section 1. TTT No State shall make orenforce any law which shall abridge theprivileges or immunities of citizens ofthe United States; nor shall any Statedeprive any person of life, liberty, orproperty, without due process of law;nor deny to any person within its juris-diction the equal protection of the laws.’’TTTT

‘‘Section 5. The Congress shall havepower to enforce, by appropriate legisla-tion, the provisions of this article.’’

As we recognized most recently in City ofBoerne v. Flores, 521 U.S. 507, 517, 117S.Ct. 2157, 138 L.Ed.2d 624 (1997), § 5 isan affirmative grant of power to Congress.‘‘It is for Congress in the first instance toS 81‘determin[e] whether and what legisla-tion is needed to secure the guarantees of

the Fourteenth Amendment,’ and its con-clusions are entitled to much deference.’’Id., at 536, 117 S.Ct. 2157 (quoting Katzen-bach v. Morgan, 384 U.S. 641, 651, 86S.Ct. 1717, 16 L.Ed.2d 828 (1966)). Con-gress’ § 5 power is not confined to theenactment of legislation that merely par-rots the precise wording of the FourteenthAmendment. Rather, Congress’ power ‘‘toenforce’’ the Amendment includes the au-thority both to remedy and to deter viola-tion of rights guaranteed thereunder byprohibiting a somewhat broader swath ofconduct, including that which is not itselfforbidden by the Amendment’s text. 521U.S., at 518, 117 S.Ct. 2157.

[14–16] Nevertheless, we have alsorecognized that the same language thatserves as the basis for the affirmativegrant of congressional power also serves tolimit that power. For example, Congresscannot ‘‘decree the substance of the Four-teenth Amendment’s restrictions on theStates. TTT It has been given the power‘to enforce,’ not the power to determinewhat constitutes a constitutional violation.’’Id., at 519, 117 S.Ct. 2157 (emphases add-ed). The ultimate interpretation and de-termination of the Fourteenth Amend-ment’s substantive meaning remains theprovince of the Judicial Branch. Id., at536, 117 S.Ct. 2157. In City of Boerne, wenoted that the determination whether pur-portedly prophylactic legislation consti-tutes appropriate remedial legislation, orinstead effects a substantive redefinition ofthe Fourteenth Amendment right at issue,is often difficult. Id., at 519–520, 117 S.Ct.2157. The line between the two is a fineone. Accordingly, recognizing that ‘‘Con-gress must have wide latitude in determin-ing where [that line] lies,’’ we held that‘‘[t]here must be a congruence and propor-tionality between the injury to be prevent-ed or remedied and the means adopted tothat end.’’ Id., at 520, 117 S.Ct. 2157.

In City of Boerne, we applied that ‘‘con-gruence and proportionality’’ test and heldthat the Religious Freedom Restoration


528 U.S. 83

Act of 1993 (RFRA) was not appropriatelegislation under § 5. We first noted thatthe legislative record contained very littleevidence of the unconstitutional conductS 82purportedly targeted by RFRA’s sub-stantive provisions. Rather, Congress haduncovered only ‘‘anecdotal evidence’’ that,standing alone, did not reveal a ‘‘wide-spread pattern of religious discriminationin this country.’’ Id., at 531, 117 S.Ct.2157. Second, we found that RFRA is ‘‘soout of proportion to a supposed remedialor preventive object that it cannot be un-derstood as responsive to, or designed toprevent, unconstitutional behavior.’’ Id.,at 532, 117 S.Ct. 2157.

Last Term, we again had occasion toapply the ‘‘congruence and proportionality’’test. In Florida Prepaid, we consideredthe validity of the Eleventh Amendmentabrogation provision in the Patent andPlant Variety Protection Remedy Clarifi-cation Act (Patent Remedy Act). We heldthat the statute, which subjected States topatent infringement suits, was not appro-priate legislation under § 5 of the Four-teenth Amendment. The Patent RemedyAct failed to meet our congruence andproportionality test first because ‘‘Con-gress identified no pattern of patent in-fringement by the States, let alone a pat-tern of constitutional violations.’’ 527U.S., at 640, 119 S.Ct. 2199 (emphasis add-ed). Moreover, because it was unlikelythat many of the acts of patent infringe-ment affected by the statute had any likeli-hood of being unconstitutional, we conclud-ed that the scope of the Act was out ofproportion to its supposed remedial or pre-ventive objectives. Id., at 647, 119 S.Ct.2199. Instead, ‘‘[t]he statute’s apparentand more basic aims were to provide auniform remedy for patent infringementand to place States on the same footing asprivate parties under that regime.’’ Id., at647–648, 119 S.Ct. 2199. While we ac-knowledged that such aims may be propercongressional concerns under Article I, wefound them insufficient to support an abro-gation of the States’ Eleventh Amendment

immunity after Seminole Tribe. FloridaPrepaid, supra, at 648, 119 S.Ct. 2199.

C[17] Applying the same ‘‘congruence

and proportionality’’ test in these cases, weconclude that the ADEA is not ‘‘approSpri-ate83 legislation’’ under § 5 of the Four-teenth Amendment. Initially, the substan-tive requirements the ADEA imposes onstate and local governments are dispropor-tionate to any unconstitutional conductthat conceivably could be targeted by theAct. We have considered claims of uncon-stitutional age discrimination under theEqual Protection Clause three times. SeeGregory v. Ashcroft, 501 U.S. 452, 111S.Ct. 2395, 115 L.Ed.2d 410 (1991); Vancev. Bradley, 440 U.S. 93, 99 S.Ct. 939, 59L.Ed.2d 171 (1979); Massachusetts Bd. ofRetirement v. Murgia, 427 U.S. 307, 96S.Ct. 2562, 49 L.Ed.2d 520 (1976) (percuriam). In all three cases, we held thatthe age classifications at issue did not vio-late the Equal Protection Clause. SeeGregory, supra, at 473, 111 S.Ct. 2395;Bradley, supra, at 102–103, n. 20, 108–112,99 S.Ct. 939; Murgia, supra, at 317, 96S.Ct. 2562. Age classifications, unlike gov-ernmental conduct based on race or gen-der, cannot be characterized as ‘‘so seldomrelevant to the achievement of any legiti-mate state interest that laws grounded insuch considerations are deemed to reflectprejudice and antipathy.’’ Cleburne v. Cle-burne Living Center, Inc., 473 U.S. 432,440, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985).Older persons, again, unlike those who suf-fer discrimination on the basis of race orgender, have not been subjected to a ‘‘ ‘his-tory of purposeful unequal treatment.’ ’’Murgia, supra, at 313, 96 S.Ct. 2562 (quot-ing San Antonio Independent School Dist.v. Rodriguez, 411 U.S. 1, 28, 93 S.Ct. 1278,36 L.Ed.2d 16 (1973)). Old age also doesnot define a discrete and insular minoritybecause all persons, if they live out theirnormal life spans, will experience it. 427U.S., at 313–314, 96 S.Ct. 2562. Accord-ingly, as we recognized in Murgia, Brad-


ley, and Gregory, age is not a suspectclassification under the Equal ProtectionClause. See, e.g., Gregory, supra, at 470,111 S.Ct. 2395; Bradley, supra, at 97, 99S.Ct. 939; Murgia, supra, at 313–314, 96S.Ct. 2562.

[18–23] States may discriminate on thebasis of age without offending the Four-teenth Amendment if the age classificationin question is rationally related to a legiti-mate state interest. The rationality com-manded by the Equal Protection Clausedoes not require States to match age dis-tinctions and the legitimate interests theyserve with razorlike precision. As S 84wehave explained, when conducting rationalbasis review ‘‘we will not overturn such[government action] unless the varyingtreatment of different groups or persons isso unrelated to the achievement of anycombination of legitimate purposes that wecan only conclude that the [government’s]actions were irrational.’’ Bradley, supra,at 97, 99 S.Ct. 939. In contrast, when aState discriminates on the basis of race orgender, we require a tighter fit betweenthe discriminatory means and the legiti-mate ends they serve. See, e.g., AdarandConstructors, Inc. v. Pea, 515 U.S. 200,227, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995)(‘‘[Racial] classifications are constitutionalonly if they are narrowly tailored mea-sures that further compelling governmen-tal interests’’); Mississippi Univ. forWomen v. Hogan, 458 U.S. 718, 724, 102S.Ct. 3331, 73 L.Ed.2d 1090 (1982) (holdingthat gender classifications are constitution-al only if they serve ‘‘ ‘important govern-mental objectives and TTT the discrimina-tory means employed’ are ‘substantiallyrelated to the achievement of those objec-tives’ ’’ (citation omitted)). Under theFourteenth Amendment, a State may relyon age as a proxy for other qualities, abili-ties, or characteristics that are relevant tothe State’s legitimate interests. The Con-stitution does not preclude reliance onsuch generalizations. That age proves tobe an inaccurate proxy in any individualcase is irrelevant. ‘‘[W]here rationality is

the test, a State ‘does not violate the EqualProtection Clause merely because the clas-sifications made by its laws are imper-fect.’ ’’ Murgia, supra, at 316, 96 S.Ct.2562 (quoting Dandridge v. Williams, 397U.S. 471, 485, 90 S.Ct. 1153, 25 L.Ed.2d491 (1970)). Finally, because an age clas-sification is presumptively rational, the in-dividual challenging its constitutionalitybears the burden of proving that the ‘‘factson which the classification is apparentlybased could not reasonably be conceived tobe true by the governmental decisionmak-er.’’ Bradley, supra, at 111, 99 S.Ct. 939;see Gregory, supra, at 473, 111 S.Ct. 2395.

[24, 25] Our decisions in Murgia,Bradley, and Gregory illustrate these prin-ciples. In all three cases, we held that theStates’ reliance on broad generalizationswith respect to age did S 85not violate theEqual Protection Clause. In Murgia, weupheld against an equal protection chal-lenge a Massachusetts statute requiringstate police officers to retire at age 50.The State justified the provision on theground that the age classification assuredthe State of the physical preparedness ofits officers. 427 U.S., at 314–315, 96 S.Ct.2562. Although we acknowledged that Of-ficer Murgia himself was in excellent phys-ical health and could still perform theduties of a state police officer, we foundthat the statute clearly met the require-ments of the Equal Protection Clause.Id., at 311, 314–317, 96 S.Ct. 2562. ‘‘Thatthe State chooses not to determine fitnessmore precisely through individualized test-ing after age 50 [does not prove] that theobjective of assuring physical fitness is notrationally furthered by a maximum-agelimitation.’’ Id., at 316, 96 S.Ct. 2562. InBradley, we considered an equal protec-tion challenge to a federal statute requir-ing Foreign Service officers to retire atage 60. We explained: ‘‘If increasing agebrings with it increasing susceptibility tophysical difficulties, TTT the fact that indi-vidual Foreign Service employees may beable to perform past age 60 does not inval-idate [the statute] any more than did the


528 U.S. 87

similar truth undercut compulsory retire-ment at age 50 for uniformed state policein Murgia.’’ 440 U.S., at 108, 99 S.Ct. 939.Finally, in Gregory, we upheld a provisionof the Missouri Constitution that requiredjudges to retire at age 70. Noting that theMissouri provision was based on a general-ization about the effect of old age on theability of individuals to serve as judges, weacknowledged that ‘‘[i]t is far from truethat all judges suffer significant deteriora-tion in performance at age 70,’’ ‘‘[i]t isprobably not true that most do,’’ and ‘‘[i]tmay not be true at all.’’ 501 U.S., at 473,111 S.Ct. 2395. Nevertheless, becauseMissouri’s age classification was subjectonly to rational basis review, we held thatthe State’s reliance on such imperfect gen-eralizations was entirely proper under theEqual Protection Clause. Ibid. These de-cisions thus demonstrate that the constitu-tionality of state classifications on the basisof age cannot be deterSmined86 on a person-by-person basis. Our Constitution permitsStates to draw lines on the basis of agewhen they have a rational basis for doingso at a class-based level, even if it ‘‘isprobably not true’’ that those reasons arevalid in the majority of cases.

Judged against the backdrop of ourequal protection jurisprudence, it is clearthat the ADEA is ‘‘so out of proportion toa supposed remedial or preventive objectthat it cannot be understood as responsiveto, or designed to prevent, unconstitution-al behavior.’’ City of Boerne, 521 U.S., at532, 117 S.Ct. 2157. The Act, through itsbroad restriction on the use of age as adiscriminating factor, prohibits substan-tially more state employment decisionsand practices than would likely be heldunconstitutional under the applicableequal protection, rational basis standard.The ADEA makes unlawful, in the em-ployment context, all ‘‘discriminat[ion]against any individual TTT because of suchindividual’s age.’’ 29 U.S.C. § 623(a)(1).Petitioners, relying on the Act’s excep-tions, dispute the extent to which theADEA erects protections beyond the Con-

stitution’s requirements. They contendthat the Act’s prohibition, considered to-gether with its exceptions, applies only toarbitrary age discrimination, which in themajority of cases corresponds to conductthat violates the Equal Protection Clause.We disagree.

Petitioners stake their claim on§ 623(f)(1). That section permits employ-ers to rely on age when it ‘‘is a bona fideoccupational qualification reasonably nec-essary to the normal operation of the par-ticular business.’’ Petitioners’ reliance onthe ‘‘bona fide occupational qualification’’(BFOQ) defense is misplaced. Our inter-pretation of § 623(f)(1) in Western AirLines, Inc. v. Criswell, 472 U.S. 400, 105S.Ct. 2743, 86 L.Ed.2d 321 (1985), conclu-sively demonstrates that the defense is afar cry from the rational basis standard weapply to age discrimination under theEqual Protection Clause. The petitionerin that case maintained that, pursuant tothe BFOQ defense, employers must bepermitted to rely on age when such reli-ance S 87has a ‘‘rational basis in fact.’’ Id.,at 417, 105 S.Ct. 2743. We rejected thatargument, explaining that ‘‘[t]he BFOQstandard adopted in the statute is one of‘reasonable necessity,’ not reasonable-ness,’’ id., at 419, 105 S.Ct. 2743, and thatthe ADEA standard and the rational basistest are ‘‘significantly different,’’ id., at421, 105 S.Ct. 2743.

Under the ADEA, even with its BFOQdefense, the State’s use of age is primafacie unlawful. See 29 U.S.C. § 623(a)(1);Western Air Lines, 472 U.S., at 422, 105S.Ct. 2743 (‘‘Under the Act, employers areto evaluate employees TTT on their meritsand not their age’’). Application of the Acttherefore starts with a presumption in fa-vor of requiring the employer to make anindividualized determination. See ibid.In Western Air Lines, we concluded thatthe BFOQ defense, which shifts the focusfrom the merits of the individual employeeto the necessity for the age classificationas a whole, is ‘‘ ‘meant to be an extremelynarrow exception to the general prohibi-


tion’ of age discrimination contained in theADEA.’’ Id., at 412, 105 S.Ct. 2743 (cita-tion omitted). We based that conclusionon both the restrictive language of thestatutory BFOQ provision itself and theEEOC’s regulation interpreting that ex-ception. See 29 CFR § 1625.6(a) (1998)(‘‘It is anticipated that this concept of a[BFOQ] will have limited scope and appli-cation. Further, as this is an exception tothe Act it must be narrowly construed’’).To succeed under the BFOQ defense, weheld that an employer must demonstrateeither ‘‘a substantial basis for believingthat all or nearly all employees above anage lack the qualifications required for theposition,’’ or that reliance on the age classi-fication is necessary because ‘‘it is highlyimpractical for the employer to insure byindividual testing that its employees willhave the necessary qualifications for thejob.’’ 472 U.S., at 422–423, 105 S.Ct. 2743(emphases added). Measured against therational basis standard of our equal protec-tion jurisprudence, the ADEA plainly im-poses substantially higher burdens onstate employers. Thus, although it is truethat the existence of the BFOQ defensemakes the ADEA’s prohibition of agedisScrimination88 less than absolute, theAct’s substantive requirements neverthe-less remain at a level akin to our height-ened scrutiny cases under the Equal Pro-tection Clause.

[26] Petitioners also place some reli-ance on the next clause in § 623(f)(1),which permits employers to engage in con-duct otherwise prohibited by the Act‘‘where the differentiation is based on rea-sonable factors other than age.’’ This ex-ception confirms, however, rather than dis-proves, the conclusion that the ADEA’sprotection extends beyond the require-ments of the Equal Protection Clause.The exception simply makes clear that‘‘[t]he employer cannot rely on age as aproxy for an employee’s remaining charac-teristics, such as productivity, but mustinstead focus on those factors directly.’’Hazen Paper Co. v. Biggins, 507 U.S. 604,

611, 113 S.Ct. 1701, 123 L.Ed.2d 338(1993). Under the Constitution, in con-trast, States may rely on age as a proxyfor other characteristics. See Gregory,501 U.S., at 473, 111 S.Ct. 2395 (general-ization about ability to serve as judges atage 70); Bradley, 440 U.S., at 108–109,112, 99 S.Ct. 939 (generalization about abil-ity to serve as Foreign Service officer atage 60); Murgia, 427 U.S., at 314–317, 96S.Ct. 2562 (generalization about ability toserve as state police officer at age 50).Section 623(f)(1), then, merely confirmsthat Congress, through the ADEA, haseffectively elevated the standard for ana-lyzing age discrimination to heightenedscrutiny.

[27] That the ADEA prohibits very lit-tle conduct likely to be held unconstitution-al, while significant, does not alone providethe answer to our § 5 inquiry. Difficultand intractable problems often requirepowerful remedies, and we have never heldthat § 5 precludes Congress from enactingreasonably prophylactic legislation. Ourtask is to determine whether the ADEA isin fact just such an appropriate remedy or,instead, merely an attempt to substantive-ly redefine the States’ legal obligationswith respect to age discrimination. Onemeans by which we have made such adetermination in the past is by examiningthe legislative record containing the rea-sons for Congress’ action. See, e.g., Flo-riSda89 Prepaid, 527 U.S., at 640–647, 119S.Ct. 2199; City of Boerne, 521 U.S., at530–531, 117 S.Ct. 2157. ‘‘The appropri-ateness of remedial measures must be con-sidered in light of the evil presented.Strong measures appropriate to addressone harm may be an unwarranted re-sponse to another, lesser one.’’ Id., at 530,117 S.Ct. 2157 (citing South Carolina v.Katzenbach, 383 U.S. 301, 308, 86 S.Ct.803, 15 L.Ed.2d 769 (1966)).

Our examination of the ADEA’s legisla-tive record confirms that Congress’ 1974extension of the Act to the States was anunwarranted response to a perhaps incon-


528 U.S. 91

sequential problem. Congress never iden-tified any pattern of age discrimination bythe States, much less any discriminationwhatsoever that rose to the level of consti-tutional violation. The evidence compiledby petitioners to demonstrate such atten-tion by Congress to age discrimination bythe States falls well short of the mark.That evidence consists almost entirely ofisolated sentences clipped from floor de-bates and legislative reports. See, e.g.,S.Rep. No. 93–846, p. 112 (1974); S.Rep.No. 93–690, p. 56 (1974); H.R.Rep. No.93–913, pp. 40–41 (1974); S.Rep. No. 93–300, p. 57 (1973); Senate Special Commit-tee on Aging, Improving the Age Discrimi-nation Law, 93d Cong., 1st Sess., 14(Comm. Print 1973); 113 Cong. Rec. 34742(1967) (remarks of Rep. Steiger); id., at34749 (remarks of Rep. Donohue); 110Cong. Rec. 13490 (1964) (remarks of Sen.Smathers); id., at 9912 (remarks of Sen.Sparkman); id., at 2596 (remarks of Rep.Beckworth). The statements of SenatorBentsen on the floor of the Senate are in-dicative of the strength of the evidencerelied on by petitioners. See, e.g., 118Cong. Rec. 24397 (1972) (stating that‘‘there is ample evidence that age discrimi-nation is broadly practiced in governmentemployment,’’ but relying on newspaperarticles about federal employees); id., at7745 (‘‘Letters from my own State have re-vealed that State and local governmentshave also been guilty of discrimination to-ward older employees’’); ibid. (‘‘[T]hereare strong indications that the hiring andfiring practices of governmental units dis-criminate against the elderly TTT’’).

S 90Petitioners place additional reliance onCongress’ consideration of a 1966 reportprepared by the State of California on agediscrimination in its public agencies. SeeHearings on H.R. 3651 et al. before theSubcommittee on Labor of the House ofRepresentatives Committee on Educationand Labor, 90th Cong., 1st Sess., pp. 161–201 (1967) (Hearings) (reprinting State ofCalifornia, Citizens’ Advisory Committeeon Aging, Age Discrimination in Public

Agencies (1966)). Like the assorted sen-tences petitioners cobble together from adecade’s worth of congressional reportsand floor debates, the California studydoes not indicate that the State had en-gaged in any unconstitutional age discrim-ination. In fact, the report stated that themajority of the age limits uncovered in thestate survey applied in the law enforce-ment and firefighting occupations. Hear-ings 168. Those age limits were not onlypermitted under California law at the time,see ibid., but are also currently permittedunder the ADEA. See 5 U.S.C. §§ 3307(d),(e); 29 U.S.C. § 623(j) (1994 ed., Supp.III). Even if the California report haduncovered a pattern of unconstitutionalage discrimination in the State’s publicagencies at the time, it nevertheless wouldhave been insufficient to support Congress’1974 extension of the ADEA to every Stateof the Union. The report simply does notconstitute ‘‘evidence that [unconstitutionalage discrimination] had become a problemof national import.’’ Florida Prepaid, su-pra, at 641, 119 S.Ct. 2199.

Finally, the United States’ argumentthat Congress found substantial age dis-crimination in the private sector, see Brieffor United States 38, is beside the point.Congress made no such findings with re-spect to the States. Although we alsohave doubts whether the findings Con-gress did make with respect to the privatesector could be extrapolated to support afinding of unconstitutional age discrimina-tion in the public sector, it is sufficient forthese cases to note that Congress failed toidentify a widespread pattern of age disScri-mination91 by the States. See FloridaPrepaid, 527 U.S., at 640, 119 S.Ct. 2199.

A review of the ADEA’s legislative rec-ord as a whole, then, reveals that Congresshad virtually no reason to believe thatstate and local governments were unconsti-tutionally discriminating against their em-ployees on the basis of age. Although thatlack of support is not determinative of the§ 5 inquiry, id., at 646, 119 S.Ct. 2199;City of Boerne, 521 U.S., at 531–532, 117


S.Ct. 2157, Congress’ failure to uncoverany significant pattern of unconstitutionaldiscrimination here confirms that Con-gress had no reason to believe that broadprophylactic legislation was necessary inthis field. In light of the indiscriminatescope of the Act’s substantive require-ments, and the lack of evidence of wide-spread and unconstitutional age discrimi-nation by the States, we hold that theADEA is not a valid exercise of Congress’power under § 5 of the FourteenthAmendment. The ADEA’s purported ab-rogation of the States’ sovereign immunityis accordingly invalid.

DOur decision today does not signal the

end of the line for employees who findthemselves subject to age discrimination atthe hands of their state employers. Wehold only that, in the ADEA, Congress didnot validly abrogate the States’ sovereignimmunity to suits by private individuals.State employees are protected by stateage discrimination statutes, and may re-

cover money damages from their state em-ployers, in almost every State of the Un-ion.* Those aveSnues92 of relief remainavailable today, just as they were beforethis decision.

Because the ADEA does not validly ab-rogate the States’ sovereign immunity,however, the present suits must be dis-missed. Accordingly, the judgment of theCourt of Appeals is affirmed.

It is so ordered.

Justice STEVENS, with whom JusticeSOUTER, Justice GINSBURG, andJustice BREYER join, dissenting in partand concurring in part.

Congress’ power to regulate the Ameri-can economy includes the power to regu-late both the public and the privateS 93sectors of the labor market. Federalrules outlawing discrimination in the work-place, like the regulation of wages andhours or health and safety standards, maybe enforced against public as well as pri-

* See Alaska Stat. Ann. § 18.80.010 et seq.(1998); Ariz.Rev.Stat. Ann. § 41–1401 et seq.(1999); Ark.Code Ann. §§ 21–3–201, 21–3–203 (1996); Cal. Govt.Code Ann. § 12900 etseq. (West 1992 and Supp.1999); Colo.Rev.Stat. § 24–34–301 et seq. (1998); Conn. Gen.Stat. § 46a–51 et seq. (1999); Del.Code Ann.,Tit. 19, § 710 et seq. (Supp.1998); Fla. Stat.§§ 112.044, 760.01 et seq. (1998 Supp.); Ga.Code Ann. § 45–19–21 et seq. (1990 andSupp.1996); Haw.Rev.Stat. § 378–1 et seq.(1993 and Cum.Supp.1998); Idaho Code§ 67–5901 et seq. (1995 and Supp.1999); Ill.Comp. Stat., ch. 775, § 5/1–101 et seq. (1998);Ind.Code § 22–9–2–1 et seq. (1993); IowaCode § 216.1 et seq. (1994 and Supp.1999);Kan. Stat. Ann. § 44–1111 et seq. (1993 andCum.Supp.1998); Ky.Rev.Stat. Ann.§ 344.010 et seq. (Michie 1997 and Supp.1998); La.Rev.Stat. Ann. § 23:311 et seq.(West 1998); id., § 51:2231 et seq. (WestSupp.1999); Me.Rev.Stat. Ann., Tit. 5, § 4551et seq. (1998–1999 Supp.); Md. Ann.Code,Art. 49B, § 1 et seq. (1998 and Supp.1999);Mass. Gen. Laws § 151:1 et seq. (1997 andSupp.1997); Mich. Comp. Laws § 37.2101 etseq. (West 1985 and Supp.1999); Minn.Stat.§ 363.01 et seq. (1991 and Supp.1999); Miss.Code Ann. § 25–9–149 (1991); Mo.Rev.Stat.§ 213.010 et seq. (1994 and Cum.Supp.1998);

Mont.Code Ann. § 49–1–101 et seq. (1997);Neb.Rev.Stat. § 48–1001 et seq. (1998); Nev.Rev.Stat. § 613.310 et seq. (1995); N.H.Rev.Stat. Ann. § 354–A:1 et seq. (1995 and Supp.1998); N.J. Stat. Ann. §§ 10:3–1, 10:5–1 etseq. (West 1993 and Supp.1999); N.M. Stat.Ann. § 28–1–1 et seq. (1996); N.Y. Exec. Law§ 290 et seq. (McKinney 1993 and Supp.1999); N.C. Gen.Stat. § 126–16 et seq. (1999);N.D. Cent.Code § 14–02.4–01 et seq. (1997and Supp.1999); Ohio Rev.Code Ann.§ 4112.01 et seq. (1998); Okla. Stat., Tit. 25,§ 1101 et seq. (1991 and Supp.1999); Ore.Rev.Stat. § 659.010 et seq. (1997); 43 Pa.Cons.Stat. § 951 et seq. (1991 and Supp.1999); R.I. Gen. Laws § 28–5–1 et seq. (1995and Supp.1997); S.C.Code Ann. § 1–13–10 etseq. (1986 and Cum.Supp.1998); Tenn.CodeAnn. § 4–21–101 et seq. (1998); Tex. Lab.Code Ann. § 21.001 et seq. (1996 and Supp.1999); Utah Code Ann. § 34A–5–101 et seq.(Supp.1999); Vt. Stat. Ann., Tit. 21, § 495 etseq. (1987 and Supp.1999); Va.Code Ann.§ 2.1–116.10 et seq. (1995 and Supp.1999);Wash. Rev.Code § 49.60.010 et seq. (1994);W. Va.Code § 5–11–1 et seq. (1999); Wis.Stat. Ann. § 111.01 et seq. (West 1997 andSupp.1998); Wyo. Stat. Ann. § 27–9–101 etseq. (1999).


528 U.S. 95

vate employers. In my opinion, Congress’power to authorize federal remediesagainst state agencies that violate federalstatutory obligations is coextensive with itspower to impose those obligations on theStates in the first place. Neither theEleventh Amendment nor the doctrine ofsovereign immunity places any limit onthat power. See Seminole Tribe of Fla. v.Florida, 517 U.S. 44, 165–168, 116 S.Ct.1114, 134 L.Ed.2d 252 (1996) (SOUTER,J., dissenting); EEOC v. Wyoming, 460U.S. 226, 247–248, 103 S.Ct. 1054, 75L.Ed.2d 18 (1983) (STEVENS, J., concur-ring).

The application of the ancient judge-made doctrine of sovereign immunity incases like these is supposedly justified as afreestanding limit on congressional author-ity, a limit necessary to protect States’‘‘dignity and respect’’ from impairment bythe National Government. The Framersdid not, however, select the JudicialBranch as the constitutional guardian ofthose state interests. Rather, the Fram-ers designed important structural safe-guards to ensure that when the NationalGovernment enacted substantive law (andprovided for its enforcement), the normaloperation of the legislative process itselfwould adequately defend state interestsfrom undue infringement. See generallyWechsler, The Political Safeguards of Fed-eralism: The Role of the States in theComposition and Selection of the NationalGovernment, 54 Colum. L.Rev. 543 (1954).

It is the Framers’ compromise givingeach State equal representation in theSenate that provides the principal struc-tural protection for the sovereignty of theseveral States. The composition of the

Senate was originally determined by thelegislatures of the States, which wouldguarantee that their interests could not beignored by Congress.1 S 94The Framersalso directed that the House be composedof Representatives selected by voters inthe several States, the consequence ofwhich is that ‘‘the states are the strategicyardsticks for the measurement of interestand opinion, the special centers of politicalactivity, the separate geographical deter-minants of national as well as local poli-tics.’’ Id., at 546.

Whenever Congress passes a statute, itdoes so against the background of statelaw already in place; the propriety of tak-ing national action is thus measured by themetric of the existing state norms thatCongress seeks to supplement or sup-plant.2 The persuasiveness of any justifi-cation for overcoming legislative inertiaand taking national action, either creatingnew federal obligations or providing fortheir enforcement, must necessarily bejudged in reference to state interests, asexpressed in existing state laws. The pre-cise scope of federal laws, of course, can beshaped with nuanced attention to stateinterests. The Congress also has the au-thority to grant or withhold jurisdiction inlower federal courts. The burden of beinghaled into a federal forum for the enforce-ment of federal law, thus, can be expandedor contracted as Congress deems proper,which decision, like all other legislativeacts, necessarily contemplates state inter-ests. Thus, Congress can use its broadrange of flexible legislative tools to ap-proach the delicate issue of how to balancelocal and national interests in the S 95mostresponsive and careful manner.3 It is

1. The Federalist No. 45, p. 291 (C. Rossitered. 1961) (J. Madison) (‘‘The State govern-ments may be regarded as constituent andessential parts of the federal governmentTTTT

The Senate will be elected absolutely andexclusively by the State legislaturesTTTT

Thus, [it] will owe its existence more or less tothe favor of the State governments, and mustconsequently feel a dependence, which ismuch more likely to beget a disposition tooobsequious than too overbearing towardsthem’’).

2. When Congress expanded the Age Discrimi-nation in Employment Act of 1967 (ADEA) in1974 to apply to public employers, all 50States had some form of age discriminationlaw, but 24 of them did not extend their ownlaws to public employers. See App. to Brieffor Respondents 1a–25a.

3. Thus, the present majority’s view does morethan simply aggrandize the power of the Judi-cial Branch. It also limits Congress’ optionsfor responding with precise attention to stateinterests when it takes national action. The


quite evident, therefore, that the Framersdid not view this Court as the ultimateguardian of the States’ interest in protect-ing their own sovereignty from impairmentby ‘‘burdensome’’ federal laws.4

S 96Federalism concerns do make it ap-propriate for Congress to speak clearlywhen it regulates state action. But whenit does so, as it has in these cases,5 we cansafely presume that the burdens the stat-ute imposes on the sovereignty of the sev-eral States were taken into account duringthe deliberative process leading to the en-actment of the measure. Those burdensnecessarily include the cost of defendingagainst enforcement proceedings and pay-ing whatever penalties might be incurredfor violating the statute. In my judgment,the question whether those enforcementproceedings should be conducted exclusive-ly by federal agencies, or may be broughtby private parties as well, is a matter ofpolicy for Congress to decide. In either

event, once Congress has made its policychoice, the sovereignty concerns of theseveral States are satisfied, and the feder-al interest in evenhanded enforcement offederal law, explicitly endorsed in ArticleVI of the Constitution, does not counte-nance further limitations. There is not aword in the text of the Constitution sup-porting the Court’s conclusion that thejudge-made doctrine of sovereign immuni-ty limits Congress’ power to authorize pri-vate parties, as well as federal agencies, toenforce federal law against the States.The importance of respecting the Framers’decision to assign the business of lawmak-ing to the Congress dictates firm resis-tance to the present majority’s repeatedsubstitution of its own views of federalismfor those expressed in statutes enacted bythe Congress and signed by the President.

S 97The Eleventh Amendment simply doesnot support the Court’s view. As has beenstated before, the Amendment only places

majority’s view, therefore, does not bolsterthe Framers’ plan of structural safeguards forstate interests. Rather, it is fundamentally atodds with that plan. Indeed, as JusticeBREYER has explained, forbidding privateremedies may necessitate the enlargement ofthe federal bureaucracy and make it moredifficult ‘‘to decentralize governmental deci-sionmaking and to provide individual citizens,or local communities, with a variety of en-forcement powers.’’ College Savings Bank v.Florida Prepaid Postsecondary Ed. ExpenseBd., 527 U.S. 666, 705, 119 S.Ct. 2219, 144L.Ed.2d 605 (1999) (dissenting opinion); seealso Printz v. United States, 521 U.S. 898,976–978, 117 S.Ct. 2365, 138 L.Ed.2d 914(1997) (BREYER, J., dissenting).

4. The President also plays a role in the enact-ment of federal law, and the Framers likewiseprovided structural safeguards to protect stateinterests in the selection of the President.The electors who choose the President areappointed in a manner directed by the statelegislatures. Art. II, § 1, cl. 2. And if a major-ity of electors do not cast their vote for oneperson, then the President is chosen by theHouse of Representatives. ‘‘But in chusingthe President’’ by this manner, the Constitu-tion directs that ‘‘the Votes shall be taken byStates, the Representatives from each Statehaving one Vote.’’ Art. II, § 1, cl. 3 (emphasisadded); see also Amdt. 12.

Moreover, the Constitution certainly pro-tects state interests in other ways as well, asin the provisions of Articles IV, V, and VII.My concern here, however, is with the respectfor state interests safeguarded by the ordinarylegislative process. The balance between na-tional and local interests reflected in otherconstitutional provisions may vary, see, e.g.,U.S. Term Limits, Inc. v. Thornton, 514 U.S.779, 115 S.Ct. 1842, 131 L.Ed.2d 881 (1995),but insofar as Congress’ legislative authorityis concerned, the relevant constitutional pro-visions were crafted to ensure that the pro-cess itself adequately accounted for local in-terests.

I also recognize that the Judicial Branchsometimes plays a role in limiting the productof the legislative process. It may do so, forexample, when the exercise of legislative au-thority runs up against some other constitu-tional command. See Seminole Tribe of Fla.v. Florida, 517 U.S. 44, 166–167, 116 S.Ct.1114, 134 L.Ed.2d 252 (1996) (SOUTER, J.,dissenting). But in those instances, courtsare not crafting wholly judge-made doctrinesunrelated to any constitutional text, nor arethey doing so solely under the guise of thenecessity of safeguarding state interests.

5. Because Congress has clearly expressed itsintention to subject States to suits by privateparties under the ADEA, I join Part III of theopinion of the Court.


528 U.S. 98

a textual limitation on the diversity juris-diction of the federal courts. See Atas-cadero State Hospital v. Scanlon, 473 U.S.234, 286–289, 105 S.Ct. 3142, 87 L.Ed.2d171 (1985) (Brennan, J., dissenting). Be-cause the Amendment is a part of theConstitution, I have never understood howits limitation on the diversity jurisdictionof federal courts defined in Article IIIcould be ‘‘abrogated’’ by an Act of Con-gress. Seminole Tribe, 517 U.S., at 93,116 S.Ct. 1114 (STEVENS, J., dissenting).Here, however, private petitioners did notinvoke the federal courts’ diversity juris-diction; they are citizens of the same Stateas the defendants and they are assertingclaims that arise under federal law. Thus,today’s decision (relying as it does on Sem-inole Tribe ) rests entirely on a novel judi-cial interpretation of the doctrine of sover-eign immunity,6 which the Court treats asthough it were a constitutional precept. Itis nevertheless clear to me that if Con-gress has the power to create the federalrights that these petitioners are asserting,it must also have the power to give thefederal courts jurisdiction to remedy viola-tions of those rights, even if it is necessaryto ‘‘abrogate’’ the Court’s ‘‘EleventhAmendment’’ version of the common-lawdefense of sovereign immunity to do so.That is the essence of the Court’s holdingin Pennsylvania v. Union Gas Co., 491U.S. 1, 13–23, 109 S.Ct. 2273, 105 L.Ed.2d1 (1989).

I remain convinced that Union Gas wascorrectly decided and that the decision offive Justices in Seminole Tribe to overrulethat case was profoundly misguided. De-spite my respect for stare decisis, I amunwilling to accept Seminole Tribe as con-trolling precedent. First and foremost,

the reasoning of that opinion is so pro-foundly mistaken and so S 98fundamentallyinconsistent with the Framers’ conceptionof the constitutional order that it has for-saken any claim to the usual deference orrespect owed to decisions of this Court.Stare decisis, furthermore, has less forcein the area of constitutional law. See, e.g.,Burnet v. Coronado Oil & Gas Co., 285U.S. 393, 406–410, 52 S.Ct. 443, 76 L.Ed.815 (1932) (Brandeis, J., dissenting). Andin this instance, it is but a hollow pretensefor any State to seek refuge in stare deci-sis ’ protection of reliance interests. Itcannot be credibly maintained that aState’s ordering of its affairs with respectto potential liability under federal law re-quires adherence to Seminole Tribe, asthat decision leaves open a State’s liabilityupon enforcement of federal law by federalagencies. Nor can a State find solace inthe stare decisis interest of promoting ‘‘theevenhanded TTT and consistent develop-ment of legal principles.’’ Payne v. Ten-nessee, 501 U.S. 808, 827, 111 S.Ct. 2597,115 L.Ed.2d 720 (1991). That principle isperverted when invoked to rely on sover-eign immunity as a defense to deliberateviolations of settled federal law. Further,Seminole Tribe is a case that will unques-tionably have serious ramifications in fu-ture cases; indeed, it has already had suchan effect, as in the Court’s decision todayand in the equally misguided opinion ofAlden v. Maine, 527 U.S. 706, 119 S.Ct.2240, 144 L.Ed.2d 636 (1999). Furtherstill, the Seminole Tribe decision unneces-sarily forces the Court to resolve vexingquestions of constitutional law respectingCongress’ § 5 authority. Finally, by itsown repeated overruling of earlier prece-dent, the majority has itself discounted theimportance of stare decisis in this area ofthe law.7 The kind of judicial activismmanifested in cases like Seminole Tribe,

6. Under the traditional view, the sovereignimmunity defense was recognized only as amatter of comity when asserted in the courtsof another sovereign, rather than as a limita-tion on the jurisdiction of that forum. SeeSchooner Exchange v. McFaddon, 7 Cranch116, 136, 3 L.Ed. 287 (1812) (Marshall, C. J.);Nevada v. Hall, 440 U.S. 410, 414–418, 99S.Ct. 1182, 59 L.Ed.2d 416 (1979).

7. See, e.g., College Savings Bank v. FloridaPrepaid Postsecondary Ed. Expense Bd., 527U.S., at 675–683, 119 S.Ct. 2219 (overrulingParden v. Terminal Ry. of Ala. Docks Dept.,377 U.S. 184, 84 S.Ct. 1207, 12 L.Ed.2d 233(1964)); Seminole Tribe, 517 U.S., at 63–73,116 S.Ct. 1114 (overruling Pennsylvania v.Union Gas Co., 491 U.S. 1, 109 S.Ct. 2273,105 L.Ed.2d 1 (1989)); Pennhurst State


S 99Alden v. Maine, Florida Prepaid Post-secondary Ed. Expense Bd. v. College Sav-ings Bank, 527 U.S. 627, 119 S.Ct. 2199,144 L.Ed.2d 575 (1999), and College Sav-ings Bank v. Florida Prepaid Postsecond-ary Ed. Expense Bd., 527 U.S. 666, 119S.Ct. 2219, 144 L.Ed.2d 605 (1999), repre-sents such a radical departure from theproper role of this Court that it should beopposed whenever the opportunity arises.

Accordingly, I respectfully dissent.

Justice THOMAS, with whom JusticeKENNEDY joins, concurring in part anddissenting in part.

In Atascadero State Hospital v. Scan-lon, 473 U.S. 234, 105 S.Ct. 3142, 87L.Ed.2d 171 (1985), this Court, cognizantof the impact of an abrogation of theStates’ Eleventh Amendment immunityfrom suit in federal court on ‘‘the usualconstitutional balance between the Statesand the Federal Government,’’ reaffirmedthat ‘‘Congress may abrogate TTT only bymaking its intention unmistakably clear inthe language of the statute.’’ Id., at 242,105 S.Ct. 3142. This rule ‘‘ ‘assures thatthe legislature has in fact faced, and in-tended to bring into issue, the critical mat-ters involved in the judicial decision.’ ’’Will v. Michigan Dept. of State Police, 491U.S. 58, 65, 109 S.Ct. 2304, 105 L.Ed.2d 45(1989) (quoting United States v. Bass, 404U.S. 336, 349, 92 S.Ct. 515, 30 L.Ed.2d 488(1971)). And it is especially applicablewhen this Court deals with a statute likethe Age Discrimination in EmploymentAct of 1967 (ADEA), whose substantivemandates extend to ‘‘elevator operators,janitors, charwomen, security guards, sec-retaries, and the like in every office build-ing in a State’s governmental hierarchy.’’Employees of Dept. of Public Health andWelfare of Mo. v. Department of Public

Health and Welfare of Mo., 411 U.S. 279,285, 93 S.Ct. 1614, 36 L.Ed.2d 251 (1973).Because I think that Congress has notmade its intention to abrogate ‘‘unmistak-ably clear’’ in the text of the ADEA, Irespectfully dissent from Part III of theCourt’s opinion.1

S 100I

It is natural to begin the clear statementinquiry by examining those provisions thatreside within the four corners of the Act inquestion. Private petitioners and the gov-ernment correctly observe that theADEA’s substantive provisions extend tothe States as employers, see 29 U.S.C.§ 623(a) (providing that ‘‘[i]t shall be un-lawful for an employer’’ to engage in cer-tain age discriminatory practices);§ 630(b) (defining ‘‘employer’’ to include ‘‘aState or a political subdivision of a State’’);§ 630(f) (defining ‘‘employee’’ as ‘‘an indi-vidual employed by any employer’’), andthat the ADEA establishes an individualright-of-action provision for ‘‘aggrieved’’persons, see § 626(c)(1) (‘‘Any person ag-grieved may bring a civil action in anycourt of competent jurisdiction for suchlegal or equitable relief as will effectuatethe purposes of this chapter’’). Since, inthe case of a state employee, the onlypossible defendant is the State, it is sub-mitted that Congress clearly expressed itsintent that a state employee may qualify asa ‘‘person aggrieved’’ under § 626(c)(1)and bring suit against his state employerin federal court.

While the argument may have some log-ical appeal, it is squarely foreclosed byprecedent—which explains the Court’s de-cision to employ different reasoning infinding a clear statement, see ante, at 640.In Employees, we confronted the pre–1974version of the Fair Labor Standards Act of

School and Hospital v. Halderman, 465 U.S.89, 127, 132–137, 104 S.Ct. 900, 79 L.Ed.2d67 (1984) (STEVENS, J., dissenting) (‘‘[T]heCourt repudiates at least 28 cases, spanningwell over a century of this Court’s jurispru-dence’’).

1. I concur in Parts I, II, and IV of the Court’sopinion because I agree that the purportedabrogation of the States’ Eleventh Amend-ment immunity in the ADEA falls outsideCongress’ § 5 enforcement power.


528 U.S. 102

1938 (FLSA), which clearly extended as asubstantive matter to state employers, andincluded the following private right-of-ac-tion provision: ‘‘ ‘Action to recover suchliability may be maintained in any court ofcompetent jurisdiction.’ ’’ Employees, su-pra, at 283, 93 S.Ct. 1614 (quoting 29U.S.C. § 216(b) (1970 ed.)). We held thatthis language fell short of a clear state-ment of Congress’ intent to abrogate. TheFLSA’s substantive coverage of state em-ployers could be given meaning throughenforcement by the Secretary of Labor,which would raise no Eleventh Amend-ment issue, 411 U.S., at 285–286, 93 S.Ct.1614, and we were ‘‘reluctant to believethat Congress in pursuit S 101of a harmoni-ous federalism desired to treat the Statesso harshly’’ by abrogating their EleventhAmendment immunity, id., at 286, 93 S.Ct.1614. See also, e.g., Dellmuth v. Muth,491 U.S. 223, 228, 109 S.Ct. 2397, 105L.Ed.2d 181 (1989) (holding that Congresshad not clearly stated its intent to abro-gate in a statute that authorized ‘‘partiesaggrieved TTT to ‘bring a civil action TTT inany State court of competent jurisdictionor in a district court of the United Stateswithout regard to the amount in controver-sy’ ’’) (quoting 20 U.S.C. § 1415(e)(2) (1982ed.)).

The ADEA is no different from the ver-sion of the FLSA we examined in Employ-ees. It unquestionably extends as a sub-stantive matter to state employers, butdoes not mention States in its right-of-action provision: ‘‘Any person aggrievedmay bring a civil action in any court ofcompetent jurisdiction for such legal orequitable relief as will effectuate the pur-poses of this chapter.’’ 29 U.S.C.§ 626(c)(1). This provision simply doesnot reveal Congress’ attention to the aug-mented liability and diminished sovereign-ty concomitant to an abrogation of Elev-enth Amendment immunity. ‘‘Congress,acting responsibly, would not be presumedto take such action silently.’’ Employees,supra, at 284–285, 93 S.Ct. 1614.

II

Perhaps recognizing the obstacle posedby Employees, private petitioners and theGovernment contend that the ADEA incor-porates a clear statement from the FLSA.The ADEA’s incorporating reference,which has remained constant since the en-actment of the ADEA in 1967, provides:‘‘The provisions of this chapter shall beenforced in accordance with the powers,remedies, and procedures provided in sec-tions 211(b), 216 (except for subsection (a)thereof), and 217 of this title, and subsec-tion (c) of this section.’’ 29 U.S.C.§ 626(b). It is argued that § 216(b)—oneof the incorporated provisions from theFLSA—unequivocally abrogates theStates’ immunity from suit in federalcourt. That section states in relevant partthat ‘‘[a]n action S 102to recover the liabilityprescribed in either of the preceding sen-tences may be maintained against any em-ployer (including a public agency) in anyFederal or State court of competent juris-diction.’’ 29 U.S.C. § 216(b).

But, as noted in the above discussion ofEmployees, § 216(b) was not always soworded. At the time the ADEA was en-acted in 1967, a relatively sparse version of§ 216(b)—which Employees held insuffi-cient to abrogate the States’ immunity—provided that an ‘‘[a]ction to recover suchliability may be maintained in any court ofcompetent jurisdiction.’’ 29 U.S.C.§ 216(b) (1964 ed.). It was not until 1974that Congress modified § 216(b) to its cur-rent formulation. Fair Labor StandardsAmendments of 1974 (1974 Amendments),§ 6(d)(1), 88 Stat. 61.

This sequence of events suggests, in myview, that we should approach with cir-cumspection any theory of ‘‘clear state-ment by incorporation.’’ Where Congressamends an Act whose provisions are incor-porated by other Acts, the bill under con-sideration does not necessarily mention theincorporating references in those otherActs, and so fails to inspire confidence thatCongress has deliberated on the conse-


quences of the amendment for the otherActs. That is the case here. The legisla-tion that amended § 216(b), § 6(d)(1) ofthe 1974 Amendments, did not even ac-knowledge § 626(b). And, given the pur-pose of the clear statement rule to ‘‘ ‘as-sur[e] that the legislature has in factfaced’ ’’ the issue of abrogation, Will, 491U.S., at 65, 109 S.Ct. 2304 (quoting Bass,404 U.S., at 349, 92 S.Ct. 515), I am unwill-ing to indulge the fiction that Congress,when it amended § 216(b), recognized theconsequences for a separate Act (theADEA) that incorporates the amendedprovision.

To be sure, § 28 of the 1974 Amend-ments, 88 Stat. 74, did modify certain pro-visions of the ADEA, which might suggestthat Congress understood the impact of§ 6(d)(1) on the ADEA. See ante, at 641–642. But § 6(d)(2)(A), another of the 1974Amendments, suggests just the opposite.Section S 1036(d)(2)(A) added to the statuteof limitations provision of the FLSA, 29U.S.C. § 255, a new subsection (d), whichsuspended the running of the statutoryperiods of limitation on ‘‘any cause of ac-tion brought under section 16(b) of the[FLSA, 29 U.S.C. § 216(b) ] TTT on orbefore April 18, 1973,’’ the date Employeeswas decided, until ‘‘one hundred and eightydays after the effective date of [the 1974Amendments].’’ The purpose of this newsubsection—revealed not only by its refer-ence to the date Employees was decided,but also by its exception for actions inwhich ‘‘judgment has been entered for thedefendant on the grounds other than Stateimmunity from Federal jurisdiction’’—wasto allow FLSA plaintiffs who had beenfrustrated by state defendants’ invocation

of Eleventh Amendment immunity underEmployees to avail themselves of the new-ly amended § 216(b).2 It appears, howev-er, that Congress was oblivious to the im-pact of § 6(d)(2)(A) on the ADEA. Thenew § 255(d), by operation of § 7(e) of theADEA, 29 U.S.C. § 626(e) (1988 ed.)(‘‘Sectio[n] 255 TTT of this title shall applyto actions under this chapter’’),3 automati-cally became part of the ADEA in 1974.And yet the new § 255(d) could have nopossible application to the ADEA because,as the Court observes, ante, at 641–642(citing § 28(a) of the 1974 Amendments),the ADEA’s substantive mandates did noteven apply to the States until the 1974Amendments. Thus, before 1974, S 104therewere no ADEA suits against States thatcould be affected by § 255(d)’s tolling pro-vision. If Congress had recognized this‘‘overinclusiveness’’ problem, it likelywould have amended § 626(e) to incorpo-rate only §§ 255(a)-(c). Cf. § 626(b) (in-corporating ‘‘the powers, remedies, andprocedures provided in sectio[n] TTT 216(except for subsection (a) thereof ’’) (em-phasis added)). But since Congress didnot do so, we are left to conclude thatCongress did not clearly focus on the im-pact of § 6(d)(2)(A) on the ADEA. AndCongress’ insouciance with respect to theimpact of § 6(d)(2)(A) suggests that Con-gress was similarly inattentive to the im-pact of § 6(d)(1).

Insofar as § 6(d)(2)(A) is closer to§ 6(d)(1) in terms of space and purposethan is § 28, the implication I would drawfrom § 6(d)(2)(A) almost certainly out-weighs the inference the Court would drawfrom § 28. In any event, the notion that§ 28 of the 1974 Amendments evidences

2. That Congress had this purpose in mind asto the FLSA does not mean that the productof Congress’ efforts—the amended § 216(b)—qualifies as a clear statement. The amended§ 216(b)’s description of the forum as ‘‘anyFederal TTT court of competent jurisdiction,’’29 U.S.C. § 216(b) (emphasis added), is am-biguous insofar as a Federal court might notbe ‘‘competent’’ unless the State defendantconsents to suit. See infra, at 659. My pres-

ent point is simply that, even assuming theamended § 216(b) qualifies as a clear state-ment, the 1974 Congress likely did not con-template the impact of the new § 216(b) onthe ADEA.

3. The ADEA was amended in 1991 to removethe incorporating reference. See Civil RightsAct of 1991, § 115, 105 Stat. 1079, 29 U.S.C.§ 626(e).


528 U.S. 106

Congress’ awareness of every last ripplethose amendments might cause in theADEA is at best a permissible inference,not ‘‘the unequivocal declaration which TTT

is necessary before we will determine thatCongress intended to exercise its powersof abrogation.’’ Dellmuth, 491 U.S., at232, 109 S.Ct. 2397.

The Court advances a more general cri-tique of my approach, explaining that ‘‘wehave never held that Congress must speakwith different gradations of clarity depend-ing on the specific circumstances of therelevant legislationTTTT’’ Ante, at 642.But that descriptive observation, withwhich I agree, is hardly probative in lightof the fact that a ‘‘clear statement byincorporation’’ argument has not to datebeen presented to this Court. I acknowl-edge that our previous cases have not re-quired a clear statement to appear withina single section or subsection of an Act.Pennsylvania v. Union Gas Co., 491 U.S.1, 7–10, 109 S.Ct. 2273, 105 L.Ed.2d 1(1989), overruled on other grounds, Semi-nole Tribe of Fla. v. Florida, 517 U.S. 44,116 S.Ct. 1114, 134 L.Ed.2d 252 (1996);see also id., at 56–57, 116 S.Ct. 1114 (con-firming clear statement in one statutorysubsection by looking to provisions in oth-er S 105subsection). Nor have our cases re-quired that such separate sections or sub-sections of an Act be passed at the sametime. Union Gas, supra, at 7–13, and n. 2,109 S.Ct. 2273 (consulting original provi-sions of the Comprehensive EnvironmentalResponse, Compensation, and Liability Actof 1980 and 1986 amendments to that Act).But, even accepting Union Gas to be cor-rectly decided, I do not think the situationwhere Congress amends an incorporatedprovision is analogous to Union Gas. Inthe Union Gas setting, where the laterCongress actually amends the earlier en-acted Act, it is reasonable to assume thatthe later Congress focused on each of thevarious provisions, whether new or old,that combine to express an intent to abro-gate.

IIIEven if a clarifying amendment to an

incorporated provision might sometimesprovide a clear statement to abrogate forpurposes of the Act into which the provi-sion is incorporated, this is not such a casefor two reasons. First, § 626(b) does notclearly incorporate the part of § 216(b)that establishes a private right of actionagainst employers. Second, even assum-ing § 626(b) incorporates § 216(b) in itsentirety, § 216(b) itself falls short of an‘‘unmistakably clear’’ expression of Con-gress’ intent to abrogate the States’ Elev-enth Amendment immunity from suit infederal court.

AI do not dispute that § 626(b) incorpo-

rates into the ADEA some provisions of§ 216(b). But it seems to me at least opento debate whether § 626(b) incorporatesthe portion of § 216(b) that creates anindividual private right of action, for theADEA already contains its own privateright-of-action provision—§ 626(c)(1). SeeMcKennon v. Nashville Banner Publish-ing Co., 513 U.S. 352, 358, 115 S.Ct. 879,130 L.Ed.2d 852 (1995) (‘‘The ADEA TTT

contains a vital element found in both TitleVII and the Fair Labor Standards Act: Itgrants an injured employee a S 106right ofaction to obtain the authorized relief. 29U.S.C. § 626(c)’’); 1 B. Lindemann & P.Grossman, Employment DiscriminationLaw 573–574 (3d ed. 1996) (‘‘The ADEAgrants any aggrieved person the right tosue for legal or equitable relief that willeffectuate the purposes of the Act’’ (citing§ 626(c)(1)) (footnote omitted)). While theright-of-action provisions in §§ 626(c) and216(b) are not identically phrased, compare§ 626(c)(1) (‘‘Any person aggrieved maybring a civil action in any court of compe-tent jurisdiction for such legal or equitablerelief as will effectuate the purposes of thischapter’’), with § 216(b) (‘‘An action to re-cover the liability prescribed in either ofthe preceding sentences may be main-tained against any employer (including a


public agency) in any Federal or Statecourt of competent jurisdiction TTT ’’), theyare certainly similar in function.

Indeed, if § 216(b)’s private right-of-ac-tion provision were incorporated by§ 626(b) and hence available to ADEAplaintiffs, the analogous right of action es-tablished by § 626(c)(1) would be whollysuperfluous—an interpretive problem theCourt does not even pause to acknowledge.To avoid the overlap, one might read theADEA to create an exclusive private rightof action in § 626(c)(1), and then to addvarious embellishments, whether fromelsewhere in the ADEA, see § 626(c)(2)(trial by jury), or from the incorporatedparts of the FLSA, see, e.g., § 216(b) (col-lective actions); ibid. (attorney’s fees);ibid. (liquidated damages).4

Of course the Court’s interpretation—that an ADEA plaintiff may choose§ 626(c)(1) or § 216(b) as the basis for hisprivate right of action—is also plausible.‘‘But such a permissible inference, whatev-er its logical force, would remain just that:a permissible inference. It would not bethe unequivocal declaration which TTT isnecessary before we will determine thatCongress intended to exercise its powersS 107of abrogation.’’ Dellmuth, 491 U.S., at232, 109 S.Ct. 2397. Apparently cognizantof this rule, the Court resorts to extrinsicevidence: our prior decisions. See, e.g.,ante, at 640–641 (‘‘ ‘[T]he ADEA incorpo-rates enforcement provisions of the FairLabor Standards Act of 1938, and provides

that the ADEA shall be enforced usingcertain of the powers, remedies, and proce-dures of the FLSA’ ’’ (alteration in origi-nal)) (quoting Hoffmann–La Roche Inc. v.Sperling, 493 U.S. 165, 167, 110 S.Ct. 482,107 L.Ed.2d 480 (1989) (citations omitted)).But judicial opinions, especially those is-sued subsequent to the enactments inquestion, have no bearing on whether Con-gress has clearly stated its intent to abro-gate in the text of the statute. How couldthey, given that legislative history—whichat least antedates the enactments underreview—is ‘‘irrelevant to a judicial inquiryinto whether Congress intended to abro-gate the Eleventh Amendment’’? Dell-muth, supra, at 230, 109 S.Ct. 2397. Inany event, Hoffmann–La Roche, which didnot present the question of a State’s Elev-enth Amendment immunity,5 is perfectlyconsistent with the view that the ADEAincorporates only ‘‘extras’’ from the FLSA,not overlapping provisions. Hoffmann–LaRoche involved the ADEA’s incorporationof the FLSA’s authorization of collectiveactions, which follows § 216(b)’s individualprivate right-of-action provision, see§ 216(b) (‘‘An action to recover the liabilityprescribed in either of the preceding sen-tences may be maintained against any em-ployer (including a public agency) in anyFederal or State court of competent juris-diction by any one S 108or more employeesfor and in behalf of himself or themselvesand other employees similarly situated ’’(emphasis added)), and so may be viewedas falling outside the overlap describedabove.6

4. The ADEA expressly limits this last remedyto ‘‘cases of willful violations.’’ 29 U.S.C.§ 626(b); see Lorillard v. Pons, 434 U.S. 575,581, 98 S.Ct. 866, 55 L.Ed.2d 40 (1978).

5. That the Hoffmann–La Roche Court did notconsider § 216(b)’s implications for the Elev-enth Amendment clear statement rule is ap-parent from its selective quotation of§ 216(b)—omitting the words ‘‘(including apublic agency).’’ See 493 U.S., at 167–168,110 S.Ct. 482 (‘‘This controversy centersaround one of the provisions the ADEA incor-porates, which states, in pertinent part, that

an action ‘may be maintained against anyemployer TTT in any Federal or State court ofcompetent jurisdiction by any one or moreemployees for and in behalf of himself orthemselves and other employees similarly sit-uated’ ’’ (alteration in original)) (quoting 29U.S.C. § 216(b) (1982 ed.)).

6. The other two cases upon which the Courtrelies, see ante, at 641 (citing McKennon v.Nashville Banner Publishing Co., 513 U.S.352, 357, 115 S.Ct. 879, 130 L.Ed.2d 852(1995), and Lorillard v. Pons, supra, at 582, 98S.Ct. 866), are also consistent with the viewthat the ADEA incorporates only ‘‘extras’’

659NEW YORK v. HILLCite as 120 S.Ct. 659 (2000)

528 U.S. 110

BEven if § 626(b) incorporates § 216(b)’s

individual right-of-action provision, thatprovision itself falls short of ‘‘unmistak-able’’ clarity insofar as it describes theforum for suit as ‘‘any Federal or Statecourt of competent jurisdiction.’’ § 216(b)(emphasis added). For it may be that afederal court is not ‘‘competent’’ under theEleventh Amendment to adjudicate a suitby a private citizen against a State unlessthe State consents to the suit. As weexplained in Employees, ‘‘[t]he history andtradition of the Eleventh Amendment indi-cate that by reason of that barrier a feder-al court is not competent to render judg-ment against a nonconsenting State.’’ 411U.S., at 284, 93 S.Ct. 1614 (emphasis add-ed). The Court suggests, ante, at 642,that its ability to distinguish a single pre-cedent, ante, at 641 (discussing KennecottCopper Corp. v. State Tax Comm’n, 327U.S. 573, 66 S.Ct. 745, 90 L.Ed. 862(1946)), illuminates this aspect of § 216(b).But the Court neither acknowledges whatEmployees had to say on this point norexplains why it follows from the modern§ 216(b)’s clarity relative to the old§ 216(b) that the modern § 216(b) is clearenough as an absolute matter to satisfy theAtascadero rule, which requires ‘‘unmis-takable’’ clarity.

That is not to say that the FLSA as awhole lacks a clear statement of Congress’intent to abrogate. Section 255(d)S 109elucidates the ambiguity within§ 216(b). Section 255(d), it will be re-called, suspended the running of the stat-ute of limitations on actions under § 216(b)brought against a State or political subdi-vision on or before April 18, 1973 (the date

Employees was decided) until ‘‘one hun-dred and eighty days after the effectivedate of the [1974 Amendments], exceptthat such suspension shall not be applica-ble if in such action judgment has beenentered for the defendant on the groundsother than State immunity from Federaljurisdiction.’’ § 255(d) (emphasis added).As I explained in Part II,7 however, notonly does § 255(d) on its face apply only tothe FLSA, but Congress’ failure to amendthe ADEA’s general incorporation of§ 255, 29 U.S.C. § 626(e) (1988 ed.),strongly suggests that Congress paid scantattention to the impact of § 255(d) uponthe ADEA. Accordingly, I cannot acceptthe notion that § 255(d) furnishes clarify-ing guidance in interpreting § 216(b) forADEA purposes, whatever assistance itmight provide to a construction of § 216(b)for FLSA purposes.8

* * *

For these reasons, I respectfully dissentfrom Part III of the Court’s opinion.

,

528 U.S. 110, 145 L.Ed.2d 560

S 110NEW YORK, Petitioner,v.

Michael HILL.No. 98–1299.

Argued Nov. 2, 1999.

Decided Jan. 11, 2000.

Defendant charged with murder androbbery moved to dismiss indictment pur-

from the FLSA, not overlapping provisions.In neither case did we consider whether theADEA incorporates the part of § 216(b) thatcreates a private action ‘‘against any employ-er (including a public agency) in any Federalor State court of competent jurisdiction.’’

7. Supra, at 655.

8. While § 255 once was incorporated by theADEA, see § 7(e), 81 Stat. 605, 29 U.S.C.§ 626(e) (1988 ed.), the ADEA was amended

in 1991 to remove the incorporating refer-ence, see Civil Rights Act of 1991, § 115, 105Stat. 1079, 29 U.S.C. § 626(e). The current‘‘unavailability’’ of § 255(d) for ADEA pur-poses perhaps explains why the Court, whichpurports to examine only the statute in itscurrent form, ante, at 641–642, does not relyon § 255(d). But, as I have explained, with-out the light § 255(d) sheds on § 216(b),§ 216(b) falls short of a clear statement ofCongress’ intent to abrogate.

528 u.s. 62 kimel v. florida bd. of regents 631...judicial branch. u.s.c.a. const.amend. 14. 16....

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