Kimel v. Florida Board of Regents

    J. DANIEL KIMEL, Jr., et al., Petitioners
v

FLORIDA BOARD OF REGENTS et al. (No. 98-791) 

UNITED STATES, Petitioners
v

FLORIDA BOARD OF REGENTS et al. (No. 98-796) 

528 US —, 145 L Ed 2d 522, 120 S Ct —
[Nos. 98-791 and 98-796]

Argued October 13, 1999. Decided January 11, 2000.

D ecision : Age Discrim ination in Employment Act held to contain clear 
statem ent of Congress in ten t to abrogate sta tes’ Eleventh Amendment 
immunity from suit in federal court by private individuals, but purported 
abrogation held to exceed Congress’ authority  under § 5 of Fourteenth  
Amendment.

SUMMARY

Section 5 of the Federal C onstitution’s Fourteenth Am endment g rants 
Congress the power to enforce, by appropriate legislation, the Fourteenth 
Amendment s provisions, which include the equal protection clause. The Age 
?*1Ŝ mmatl0n in EmPlc,yment Act of 1967, as amended (ADEA) (29 USCS 
§§ 621 et seq. ) which prohibits employment discrimination on the basis of
T  A?f^nASt indlvlduals aSe 40 and over, provides in 29 USCS § 626(b) tha t 
the ADEA shall be enforced in accordance with the powers, remedies, and 
procedures provided in certain Fair Labor Standards Act (FLSA) provisions 
that include (1) 29 USCS § 216(b), which authorizes employees to m aintain 
smits against a public agency in any federal or state court of competent ju­
risdiction, and (2) 29 USCS § 203(x), which defines “public agency” to include 
the government of a state  or its political subdivision and any agency of a 
state or its political subdivision. Three suits—one by two associate profes­
sors at an Alabama state university, one by a group of current and former 
laculty and librarians of two Florida state universities, and one by an em- 
ployee of the Florida department of corrections—were filed under the ADEA 
which suits sought among other remedies, money damages from sta te  
employers for alleged age discrimination. The United States District Court
522



KIMEL v FLORIDA
( 2000)145

Congress had no reason to believe 
th a t broad prophylactic legislation 
was necessary in this field.

(e) Today’s decision does not signal 
the end of the line for employees who 
find themselves subject to age dis­
crim ination a t the hands of th e ir 
s ta te  employers. Those employees 
are protected by state age discrimi­
nation  s ta tu te s , and may recover 
m oney dam ages from th e ir  s ta te  
employers, in almost every State of 
the Union.

139 F3d 1426, affirmed.

OPINION OF

Justice  O’C onnor delivered the 
opinion of the Court.

[1a] The Age D iscrim ination  in 
Employment Act of 1967 (ADEA or 
Act), 81 S tat. 602, as amended, 29 
USC §§ 621 et seq. (1994 ed. and 
Supp III) [29 USCS §§ 621 et seq.], 
makes it unlawful for an employer, 
including a State, “to fail or refuse 
to hire or to discharge any individ­
ual or otherwise discriminate against 
any individual . . . because of such 
individual’s age.” 29 USC § 623(a)(1) 
[29 USCS § 623(a)(1)], In these cases, 
three sets of plaintiffs filed suit un­
der the Act, seeking money damages 
for th e ir  s ta te  em ployers’ alleged 
discrimination on the basis of age. In 
each case, the state employer moved 
to dismiss the suit on the basis of its 
Eleventh Amendment immunity. The 
D istrict Court in one case granted 
the motion to dismiss, while in each 
of the rem aining cases the District 
Court denied the motion. Appeals in 
the th ree  cases were consolidated 
before the Court of Appeals for the 
E leventh Circuit, which held th a t 
the ADEA does not validly abrogate 
the States’ Eleventh Amendment im­
munity. In these cases, we are asked 
to consider whether the ADEA con-

O’Connor, J., delivered the opinion 
of the Court, Parts I, II, and IV of 
which were joined by Rehnquist, 
C .J., and Scalia, K ennedy, and 
Thomas, JJ ., and P art III of which 
was joined by Rehnquist, C. J., and 
Stevens, Scalia, Souter, Ginsburg, 
and Breyer, JJ . Stevens, J., filed an 
opinion dissenting in part and con­
curring in part, in which Souter, Gins­
bu rg , and  B reyer, J J . ,  jo ined . 
Thomas, J., filed an opinion concur­
ring in part and dissenting in part, 
in which Kennedy, J., joined.

THE COURT

tains a clear statem ent of Congress’ 
intent to abrogate the States’ Elev­
enth Amendment im m unity and, if 
so, w hether the ADEA is a proper 
exercise of Congress’ constitutional 
au thority . We conclude th a t the 
ADEA does contain a clear s ta te ­
ment of Congress’ intent to abrogate 
the S ta tes’ imm unity, but th a t the 
abrogation exceeded Congress’ au­
thority under § 5 of the Fourteenth 
Amendment.

I
A

The ADEA makes it unlawful for 
an employer “to fail or refuse to hire 
or to discharge any individual or 
otherwise discrim inate against any 
individual with respect to his com­
pensation, terms, conditions, or priv­
ileges of em ploym ent, because of 
such ind iv idua l’s age.” 29 USC 
§ 623(a)(1) [29 USCS § 623(a)(1)]. 
The Act also provides several excep­
tions to this broad prohibition. For 
example, an employer may rely on 
age where it “is a bona fide occupa­
tional qualification reasonably neces­
sary to the normal operation of the 
particular business.” § 623(f)(1). The 
Act also permits an employer to en-

BD. OF REGENTS
Ed 2d 522

531



U.S. SUPREME COURT REPORTS 145 L Ed 2d

gage in conduct otherwise prohibited 
by § 623(a)(1) if the employer’s action 
“is based on reasonable factors other 
than age,” §623(0(1), or if the em­
ployer “discharge[s] or otherw ise 
discipline [s] an individual for good 
cau se ,” § 623(f)(3). A lthough the  
Act’s prohibitions originally applied 
only to individuals “a t least forty 
years of age but less than  sixty-five 
years of age,” 81 Stat. 607, 29 USC 
§ 631 (1964 ed., Supp III) [29 USCS 
§ 631], Congress subsequently re­
moved the upper age limit, and the 
Act now covers individuals age 40 
and over, 29 USC § 631(a) [29 USCS 
§ 631(a)], Any person aggrieved by 
an employer’s violation of the Act 
“may bring a civil action in any court 
of competent jurisdiction” for legal or 
equitable relief. § 626(c)(1). Section 
626(b) also perm its aggrieved em­
ployees to enforce the Act through 
certain provisions of the Fair Labor 
Standards Act of 1938 (FLSA), and 
the ADEA specifically incorporates 
§ 16(b) of the FLSA, 29 USC § 216(b) 
[29 USCS § 216(b)],

Since its enactm ent, the ADEA’s 
scope of coverage has been expanded 
by amendment. Of particular impor­
tance to these cases is the Act’s trea t­
ment of state employers and employ­
ees. When first passed in 1967, the 
ADEA applied only to private em­
ployers. See 29 USC § 630(b) (1964 
ed., Supp III) [29 USCS § 630(b)] 
(defining term “employer” to exclude 
“the U nited S tates, a corporation 
wholly owned by the Government of 
the United States, or a State or po­
litical subdivision thereof’). In 1974, 
in a sta tu te  consisting prim arily of 
amendments to the FLSA, Congress 
extended application of the ADEA’s 
substan tive  requirem ents to the 
S ta te s .  F a ir  L abor S ta n d a rd s  
Amendments of 1974 (1974 Act),
532

§ 28, 88 Stat. 74. C onfess accom­
plished that expansion in scope by a 
simple amendment to the definition 
of “employer” contained in 29 USC 
§ 630(b) [29 USCS § 630(b)]: “The 
term  [employer] also means . . .  a 
S ta te  or political subdivision of a 
State and any agency or instrumen­
tality of a State or a political subdivi­
sion of a State . . . .” Congress also 
amended the ADEA’s definition of 
“employee,” still defining the term to 
m ean “an individual employed by 
any employer,” but excluding elected 
officials and appointed policymakers 
at the state and local levels. § 630(f). 
In the same 1974 Act, Congress 
amended 29 USC § 216(b) [29 USCS 
§ 216(b)], the FLSA enforcement pro­
vision incorporated by reference into 
the ADEA. 88 S ta t. 61. Section 
216(b) now permits an individual to 
bring  a civil action “ag a in st any 
employer (including a public agency) 
in any Federal or State court of com­
petent jurisdiction.” Section 203(x) 
defines “[p]ublic agency” to include 
“the Government of a State or politi­
cal subdivision thereof,” and “any 
agency of . . . a  State, or a political 
subdivision of a S tate .” Finally, in 
the 1974 Act, Congress added a pro­
vision prohibiting age discrimination 
generally in employment at the Fed­
eral Government. 88 S ta t. 74, 29 
USC § 633a (1994 ed. and Supp III) 
[29 USCS § 633a]. Under the current 
ADEA, mandatory age limits for law 
enforcem ent officers and firefight­
ers—at federal, state, and local lev­
els—are exempted from the statute’s 
coverage. 5 USC §§ 3307(d), (e) [5 
USCS §§ 3307(d), (e)]; 29 USC 
§ 623(j) (1994 ed., Supp III) [29 
USCS § 623(j)].

B

In D ecem ber 1994, R oderick



KIMEL v FLORIDA BD. OF REGENTS
(2000) 145 L Ed 2d 522

MacPherson and Marvin Narz, ages 
57 and 58 a t the  tim e, filed su it 
under the ADEA against their em­
ployer, the University of Montevallo, 
in the United States D istrict Court 
for the Northern District of Alabama. 
In their complaint, they alleged that 
the un ivers ity  had d iscrim inated  
against them  on the basis of their 
age, th a t it had reta lia ted  against 
them  for filing  d isc r im in a tio n  
charges with the Equal Employment 
O pportunity  Commission (EEOC), 
and th a t its College of Business, at 
which they were associate professors, 
employed an evaluation system that 
had a disparate impact on older fac­
ulty members. MacPherson and Narz 
sought declaratory  and injunctive 
relief, backpay, promotions to full 
professor, and compensatory and pu­
n itive  dam ages. App. 21-25. The 
University of Montevallo moved to 
dismiss the su it for lack of subject 
m atte r ju risd ic tion , contending it 
was barred by the Eleventh Amend­
ment. No party disputes the District 
Court’s holding th a t the University 
is an instrum entality of the State of 
Alabama. On September 9, 1996, the 
District Court granted the Universi­
ty’s motion. MacPherson v University 
of Montevallo, Civ. Action No. 94-AR- 
2962-S (ND Ala., Sept. 9, 1996), App. 
to Pet. for Cert, in No. 98-796, pp 
63a-71a. The court determined that, 
although the ADEA contains a clear 
statement of Congress’ intent to ab­
rogate the S tates’ Eleventh Amend­
ment immunity, Congress did not en­
act or extend the ADEA under its 
Fourteenth Amendment § 5 enforce­
m ent power. Id., a t 67a, 69a-70a. 
The D istrict Court therefore held 
tha t the ADEA did not abrogate the 
S ta te s ’ E leventh  A m endm ent im ­
munity. Id . , at 71a.

In April 1995, a group of current

and former faculty and librarians of 
Florida S tate  University, including 
J. Daniel Kimel, Jr., the named peti­
tioner in one of today’s cases, filed 
su it against the Florida Board of 
Regents in the United States District 
Court for the N orthern D istrict of 
Florida. Complaint and Demand for 
Ju ry  T rial in No. 95-CV-40194, 1 
Record, Doc. No. 2. The complaint 
was subsequently amended to add as 
plaintiffs current and former faculty 
and librarians of Florida In terna­
tional University. App. 41. The plain­
tiffs, all over age 40, alleged that the 
Florida Board of Regents refused to 
require the two state universities to 
allocate funds to provide previously 
agreed upon m arket adjustm ents to 
the salaries of eligible university em­
ployees. The p lain tiffs contended 
that the failure to allocate the funds 
v io lated  both the  ADEA and the 
Florida Civil Rights Act of 1992, Fla. 
Stat. § 760.01 et seq. (1997 and Supp 
1998), because it had a d isparate  
impact on the base pay of employees 
with a longer record of service, most 
of whom were older employees. App. 
42-45. The plaintiffs sought backpay, 
liquidated damages, and perm anent 
salary adjustm ents as relief. Id., at 
46. The Florida Board of Regents 
moved to dism iss the su it on the 
grounds of Eleventh Amendment im­
munity. On May 17, 1996, the Dis­
trict Court denied the motion, hold­
ing th a t Congress expressed its 
intent to abrogate the States’ Elev­
enth Am endment im m unity in the 
ADEA, and th a t the ADEA is a 
proper exercise of congressional au­
th o r ity  u n d e r th e  F o u r te e n th  
Am endm ent. No. TCA 95-40194- 
MMP (ND Fla., May 17, 1996), App. 
to Pet. for Cert, in No. 98-796, pp 
57a-62a.

In May 1996, Wellington Dickson

533



U.S. SUPREME COURT REPORTS 145 L Ed 2d

filed suit against his employer, the 
Florida Departm ent of Corrections, 
in the United States District Court 
for the Northern District of Florida. 
Dickson alleged that the state em­
ployer failed to promote him because 
of his age and because he had filed 
grievances w ith respect to the al­
leged acts of age d iscrim ination . 
Dickson sought in junctive  relief, 
backpay, and compensatory and pu­
nitive damages. App. 83-109. The 
Florida D epartm ent of Corrections 
moved to dism iss the su it on the 
grounds th a t it was barred by the 
Eleventh Amendment. The District 
Court denied that motion on Novem­
ber 5, 1996, holding th a t Congress 
unequivocally expressed its intent to 
a b ro g a te  th e  S ta te s ’ E le v en th  
Amendment immunity in the ADEA, 
and tha t Congress had authority to 
do so under § 5 of the Fourteenth 
Amendment. Dickson v Florida Dept, 
of Corrections, No. 5:9cv207-RH (ND 
Fla., Nov. 5, 1996), 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 and Dickson cases, appealed 
to the Court of Appeals for the Elev­
enth Circuit. The United States also 
intervened in all three cases to de­
fend the ADEA’s abrogation of the 
S ta te s ’ E leventh Am endm ent im ­
munity. The Court of Appeals con­
solidated the appeals and, in a di­
vided panel opinion, held th a t the 
ADEA does not abrogate the States’ 
Eleventh Amendment immunity. 139 
F3d 1426, 1433 (1998). Judge Ed­
mondson, although sta ting  th a t he 
believed “good reason exists to doubt 
th a t the ADEA was (or could have 
been properly) enacted pursuant to 
the Fourteenth Amendment,” id., at 
1430, rested  his opinion on the 
ADEA’s lack of unm istakably clear

language evidencing Congress’ intent 
to abrogate the States’ sovereign im­
munity. Ibid. He noted th a t the 
ADEA lacks any reference to the 
E leven th  A m endm ent or to the 
States’ sovereign immunity and does 
not contain, in one place, a plain 
statement that States can be sued by 
individuals in federal court. Id ., a t 
1430-1431. Judge Cox concurred in 
Judge Edmondson’s ultimate conclu­
sion th a t the  S ta tes are  immune 
from ADEA suits brought by indi­
viduals in federal court. Id., at 1444. 
Judge Cox, however, chose not to ad­
dress “the thorny issue of Congress’s 
in te n t,” id., a t 1445, but instead  
found that Congress lacks the power 
under § 5 of the Fourteenth Amend­
ment to abrogate the States’ Elev­
enth  Amendment im m unity under 
the ADEA. Ibid. He concluded tha t 
“the ADEA confers rights far more 
extensive than those the Fourteenth 
Amendment provides,” id., a t 1446, 
and that “Congress did not enact the 
ADEA as a proportional response to 
any widespread violation of the eld­
erly’s constitutional rights.” Id., a t 
1447. Chief Judge Hatchett dissented 
from both grounds. Id., at 1434.

We granted certiorari, 525 US 
1121, 142 L Ed 2d 901, 119 S Ct 901 
(1999), to resolve a conflict among 
the Federal Courts of Appeals on the 
question whether the ADEA validly 
ab roga tes  the  S ta te s ’ E leven th  
Am endm ent im m unity. Compare 
Cooper v New York State Office o f 
Mental Health, 162 F3d 770 (CA2 
1998) (holding th a t the ADEA does 
validly abrogate the States’ Eleventh 
Amendment immunity), cert, pend­
ing, No. 98-1524; Migneault v Peck, 
158 F3d 1131 (CA10 1998) (same), 
cert, pending, No. 98-1178; Coger v 
Board o f Regents o f the State of 
Term., 154 F3d 296 (CA6 1998)

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534



KIMEL v FLORIDA BD. OF REGENTS
(2000) 145 L Ed 2d 522

(same), cert, pending, No. 98-821; 
Keeton v University o f Nev. System, 
150 F3d 1055 (CA9 1998) (same); 
Scott v University o f Miss., 148 F3d 
493 (CA5 1998) (same); and Gosh- 
tasby v Board o f Trustees o f the Univ. 
o f III., 141 F3d 761 (CA7 1998) 
(same), with Humenansky v Regents 
of Univ. o f Minn., 152 F3d 822 (CA8 
1998) (holding th a t the ADEA does 
not validly abrogate the States’ Elev­
enth Am endment imm unity), cert, 
pending, No. 98-1235; and 139 F3d 
1426 (CA11 1998) (case below).

II
The Eleventh Amendment states:

v Louisiana, 134 US 1, 15, 33 L Ed 
842, 10 S Ct 504 (1890). Petitioners 
nevertheless contend that the States 
of Alabama and Florida must defend 
the present suits on the merits be­
cause Congress abrogated their Elev­
enth Amendment imm unity in the 
ADEA. To determine whether peti­
tioners are correct, we must resolve 
two p re d ic a te  q u e s tio n s : firs t, 
whether Congress unequivocally ex­
pressed its in tent to abrogate tha t 
immunity; and second, if it did, 
whether Congress acted pursuant to 
a valid grant of constitutional au­
thority. Seminole Tribe, supra, at 55, 
134 L Ed 2d 252, 116 S Ct 1114.

I

“The Judicial power of the United 
S tates shall not be construed to 
extend to any suit in law or equity, 
commenced or prosecuted against 
one of the United States by Citi­
zens of another State, or by Citi­
zens or Subjects of any Foreign 
State.”

Although today’s cases concern suits 
brought by citizens against their own 
States, this Court has long “ ‘under­
stood the Eleventh Amendment to 
stand not so much for what it says, 
but for the presupposition . . . which 
it confirms.’ ” Seminole Tribe o f Fla. 
v Florida, 517 US 44, 54, 134 L Ed 
2d 252, 116 S Ct 1114 (1996) (quot­
ing Blatchford  v Native Village of 
Noatak, 501 US 775, 779, 115 L Ed 
2d 686, 111 S Ct 2578 (1991)). Ac­
cordingly, for over a century now, we 
have made clear th a t the Constitu­
tion does not provide for federal ju ­
risdiction over suits against noncon­
senting States. College Savings Bank 
v Florida Prepaid Postsecondary Ed.
Expense Bd., 527 U S ----- , ------, 144
L Ed 2d 605, 119 S Ct 2219 (1999); 
Seminole Tribe, supra, a t 54, 134 L 
Ed 2d 252, 116 S Ct 1114; see Hans

III

[2, 3a] To determ ine w hether a 
federal s ta tu te  properly  subjects 
States to suits by individuals, we ap­
ply a “sim ple bu t s tr in g en t test: 
‘Congress may abrogate the S tates’ 
constitutionally  secured im m unity 
from su it in federal court only by 
m aking its intention unm istakably 
clear in the language of the s ta t­
ute.’ ” Dellmuth v Muth, 491 US 223, 
228, 105 L Ed 2d 181, 109 S Ct 2397 
(1989) (quoting Atascadero State  
Hospital v Scanlon, 473 US 234, 242, 
87 L Ed 2d 171, 105 S Ct 3142 
(1985)). We agree w ith petitioners 
th a t the ADEA satisfies th a t test. 
The ADEA states that its provisions 
“shall be enforced in accordance with 
the powers, remedies, and proce­
dures provided in sections 211(b), 
216 (except for subsection (a) there­
of), and 217 of this title, and subsec­
tion (c) of this section.” 29 USC 
§ 626(b) [29 USCS § 626(b)], Section 
216(b), in turn, clearly provides for 
suits by individuals against States. 
That provision authorizes employees 
to m ain tain  actions for backpay 
“against any employer (including a

535



U.S. SUPREME COURT REPORTS 145 L Ed 2d

public agency) in any Federal or 
State court of competent jurisdiction

. . Any doubt concerning the 
identity of the “public agency” defen­
dant named in § 216(b) is dispelled 
by looking to § 203(x), which defines 
the term to include “the government 
of a S ta te  or political subdivision 
thereof,” and “any agency of . . . a  
State, or a political subdivision of a 
S tate.” Read as a whole, the plain 
language of these provisions clearly 
dem onstra tes C ongress’ in ten t to 
subject the States to suit for money 
damages at the hands of individual 
employees.

Respondents m aintain th a t these 
statutory sections are less than “un­
m istakably clear” for two reasons. 
Brief for Respondents 15. First, they 
note tha t the ADEA already contains 
its  own enforcem ent provision, 
§ 626(c)(1), which provides in rele­
v an t p a rt th a t “ [a]ny person ag­
grieved may bring a civil action in 
any court of competent jurisdiction 
for such legal or equitable relief as 
will effectuate the purposes of this 
chapter.” Respondents claim that the 
existence of § 626(c)(1) renders Con­
gress’ intent to incorporate the clear 
statem ent of abrogation in § 216(b), 
the FLSA’s enforcement provision, 
ambiguous. The text of the ADEA 
forecloses respondents’ argum ent. 
Section 626(b) clearly states that the 
ADEA “shall be enforced in accor­
dance w ith the powers, remedies, 
and procedures provided in [section 
216(b)] and subsection (c) of this sec­
tion.” § 626(b) (emphasis added). In 
accord with that statutory language, 
we have explained repeatedly that 
§ 626(b) incorporates the  FLSA’s 
enforcem ent provisions, and th a t 
those remedial options operate to­
gether with § 626(c)(1). See McKen- 
non v Nashville Banner Publishing

Co., 513 US 352, 357, 130 L Ed 2d 
852, 115 S Ct 879 (1995) (“[The 
ADEA’s] remedial provisions incorpo­
rate  by reference the provisions of 
the  F a ir Labor S tan d ard s Act of 
1938”); Hoffman-La Roche Inc. v 
Sperling, 493 US 165, 167, 107 L Ed 
2d 480, 110 S Ct 482 (1989) (“[T]he 
ADEA incorporates enforcement pro­
visions of the Fair Labor Standards 
Act of 1938, and provides that the 
ADEA shall be enforced using certain 
of the powers, remedies, and proce­
dures of the FLSA” (citation omit­
ted)); Lorillard v Pons, 434 US 575, 
582, 55 L Ed 2d 40, 98 S Ct 866 
(1978) (“[B]ut for those changes Con­
gress expressly made [in the ADEA], 
it intended to incorporate fully the 
rem edies and procedures of the 
FLSA”). Respondents’ argum ent a t­
tem pts to create ambiguity where, 
according to the s ta tu te ’s text and 
this Court’s repeated interpretations 
thereof, there is none.

Respondents next point to the 
phrase “court of competent jurisdic­
tion” in § 216(b), and contend that it 
makes Congress’ in tent to abrogate 
less than clear. Relying on our deci­
sion in the distinct context of a state 
waiver of sovereign immunity, Ken- 
necott Copper Corp. v State Tax 
Comm’n, 327 US 573, 90 L Ed 862, 
66 S Ct 745 (1946), respondents 
maintain that perhaps Congress sim­
ply intended to permit an ADEA suit 
against a State only in those cases 
w here the  S ta te  previously has 
waived its Eleventh Amendment im­
munity to suit. We disagree. Our de­
cision in Kennecott Copper m ust be 
read in context. The petitioner there 
contended that Utah had waived its 
Eleventh Amendment immunity to 
suit in federal court through a state 
statute that authorized taxpayers to 
pay their taxes under protest and

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536



KIMEL v FLORIDA BD. OF REGENTS
(2000) 145 L Ed 2d 522

“ ‘thereafter bring an action in any 
court of competent jurisdiction for 
the re tu rn  thereof Id ., a t
575, n 1, 90 L Ed 862, 66 S Ct 745 
(quoting U tah Code Ann. § 80-5-76 
(1943)). Although the sta tu te  un­
doubtedly provided for suit against 
the State of U tah in its own courts, 
we held that the statute fell short of 
the required “clear declaration by a 
State of its consent to be sued in the 
federal courts.” 327 US, a t 579-580, 
90 L Ed 862, 66 S Ct 745 (emphasis 
added). Section 216(b) contains no 
such ambiguity. The statute autho­
rizes employee suits against States 
“in any Federal or S ta te  court of 
com petent ju r isd ic tio n .” § 216(b) 
(em phasis added). T hat language 
elim inates the ambiguity identified 
in Kennecott Copper—whether U tah 
intended to permit suits against the 
sovereign in sta te  court only, or in 
s ta te  and federa l court. U nder 
§ 216(b), the answer to that question 
is clear—actions may be maintained 
in federal and sta te  court. T hat 
choice of language sufficiently indi­
cates Congress’ intent, in the ADEA, 
to abrogate  the  S ta te s ’ E leven th  
Am endm ent im m unity to su its by 
individuals.

[3b, 4] Although Justice  Thomas 
concedes in his opinion that our cases 
have never required th a t Congress 
make its clear statem ent in a single 
section or in sta tu to ry  provisions 
enacted a t the same time, post, a t 
----- , 145 L Ed 2d, at 556, he con­
cludes that the ADEA lacks the req­
uisite clarity because of the “se­
quence of events” surrounding the 
e n a c tm e n t and  a m e n d m e n t of
§§ 216(b) and 626(b), post, a t ----- ,
145 L Ed 2d, a t 554. Justice Thomas 
states tha t he is unwilling to assume 
th a t  w hen  C ongress am ended  
§ 216(b) in 1974, it recognized the

consequences that amendment would
have for the ADEA. Post, a t ----- ,
145 L Ed 2d, a t 554. We respectfully 
d isagree. The fact th a t  Congress 
amended the ADEA itself in the 
same 1974 Act makes it more than 
clear th a t Congress understood the 
consequences of its actions. Indeed, 
Congress amended § 216(b) to pro­
vide for suits against States in pre­
cisely the same Act in which it ex­
tended  th e  ADEA’s su b s tan tiv e  
requirements to the States. See 1974 
Act, § 6(d)(1), 88 Stat. 61 (amending 
§ 216(b)); § 28(a), 88 Stat. 74 (extend­
ing ADEA to the States). Those pro­
visions confirm for us that the effect 
on the ADEA of the § 216(b) amend­
ment was not mere happenstance. In 
any event, we have never held that 
Congress m ust speak with different 
gradations of clarity depending on 
the specific circumstances of the rel­
evant leg isla tion  (e.g., am ending 
incorporated provisions as opposed 
to enacting a s ta tu te  for the  first 
time). The clear sta tem ent inquiry 
focuses on what Congress did enact, 
not when it did so. We will not infer 
am biguity from the sequence in 
which a clear textual statem ent is 
added to a statute.

[3c] We also disagree with Justice 
Thomas’ rem aining points, see post,
a t ---------------, 145 L Ed 2d, a t 554-
559. Although the ADEA does con­
tain  its own enforcement provision 
in § 626(c)(1), the tex t of § 626(b) 
acknowledges § 626(c)(l)’s existence 
and makes clear that the ADEA also 
incorporates § 216(b), save as indi­
cated otherwise in § 626(b)’s proviso. 
See § 626(b) (“The provisions of this 
chapter shall be enforced in accor­
dance w ith the  powers, rem edies, 
and procedures provided in sectio[n]
. . .2 1 6  (except for subsection (a) 
thereof) . . . and subsection (c) o f

537



U.S. SUPREME COURT REPORTS 145 L Ed 2d

this section“ (emphasis added)). We 
fail to see how the in te rp re ta tion  
suggested by Justice Thomas, under 
which § 626(b) would carry over only 
those § 216(b) “embellishments” not 
already provided for in § 626(c)(1) 
except for the authorization of suits
against States, see post, a t ----- , 145
L Ed 2d, at 557, could be a permis­
sible one. To accept tha t in terpreta­
tion, for example, one would have to 
conclude th a t Congress intended to 
incorpora te  only th e  portion  of 
§ 216(b)’s third sentence tha t pro­
vides for collective actions, but not 
the part of the very same sentence 
that authorizes suits against States. 
See § 216(b) (“An action to recover 
the liability prescribed in either of 
the  preceding sentences may be 
m ain tained  again st any employer 
(including a public agency) in any 
Federal or State court of competent 
jurisdiction by any one or more em­
ployees for and in behalf of himself 
or themselves and other employees 
similarly situated”).

Justice Thomas also concludes that 
§ 216(b) itself fails the clear s ta te ­
ment test. Post, a t ---------------, 145 L
Ed 2d, a t 557-559. As we have al­
ready explained, the presence of the 
word “com petent” in § 216(b) does 
not render th a t provision less than  
“unm istakably clear.” See supra, at
---------------, 145 L Ed 2d, at 536-537.
Justice Thomas’ reliance on a single 
phrase from our decision in Employ­
ees o f Dept, o f Public Health and  
Welfare o f Mo. v Department o f Pub­
lic Health and Welfare o f Mo., 411 
US 279, 36 L Ed 2d 251, 93 S Ct
1614 (1973), see post, a t ----- , 145 L
Ed 2d, a t 558, as support for the con­
trary  proposition is puzzling, given 
his separate argum ent with respect 
to § 6(d)(2)(A) of the 1974 Act. Cru­
cial to Justice Thomas’ argum ent

on that front is his acknowledgement 
that Congress did  intend in the 1974 
amendments to permit “FLSA plain­
tiffs who had been fru s tra te d  by 
state defendants’ invocation of Elev­
enth  Amendment im m unity under 
Employees to avail themselves of the 
newly amended § 216(b).” Post, a t
------, 145 L Ed 2d, a t 555; see also
post, a t ---------------, 145 L Ed 2d, at
558-559. We agree with the implica­
tion of th a t statem ent: In response 
to Employees, Congress clearly in­
tended through “the newly amended 
§ 216(b)” to abrogate  the  S ta te s ’ 
sovereign immunity. In light of our 
conclusion th a t Congress unequivo­
cally expressed its intent to abrogate 
the States’ Eleventh Amendment im­
m unity, we now m ust determ ine 
w hether Congress effectuated th a t 
abrogation pursuant to a valid exer­
cise of constitutional authority.

IV
A

This is not the first time we have 
considered the constitutional validity 
of the 1974 extension of the ADEA 
to sta te  and local governments. In 
EEOC v Wyoming, 460 US 226, 243, 
75 L Ed 2d 18, 103 S Ct 1054 (1983), 
we held that the ADEA constitutes a 
valid exercise of Congress’ power 
“[t]o regulate Commerce . . . among 
the several States,” Art. I, § 8, cl. 3, 
and tha t the Act did not transgress 
any external restra in ts  imposed on 
the commerce power by the Tenth 
Amendment. Because we found the 
ADEA valid under Congress’ Com­
merce Clause power, we concluded 
tha t it was unnecessary to determine 
w hether the Act also could be sup­
ported by Congress’ power under § 5 
of the Fourteenth Amendment. Wyo­
ming, 460 US, at 243, 75 L Ed 2d 18, 
103 S Ct 1054. But see id., a t 259-

538



KIMEL v FLORIDA BD. OF REGENTS
(2000) 145 L Ed 2d 522

263, 75 L Ed 2d 18, 103 S Ct 1054 
(Burger, C. J ., dissenting). Resolu­
tion of today’s cases requires us to 
decide that question.

[5] In Seminole Tribe, we held that 
Congress lacks power under Article I 
to abrogate the States’ sovereign im­
munity. 517 US, at 72-73, 134 L Ed 
2d 252, 116 S Ct 1114. “Even when 
the Constitution vests in Congress 
complete lawmaking authority  over 
a p a rticu la r area , the  E leventh  
Amendment prevents congressional 
authorization of suits by private par­
ties against unconsenting S ta tes.” 
Id., at 72, 134 L Ed 2d 252, 116 S Ct 
1114. Last Term, in a series of three 
decisions, we reaffirmed that central 
holding of Seminole Tribe. See Col­
lege Savings Bank, 527 US, a t ----- ,
144 L Ed 2d 605, 119 S Ct 2219; 
Florida Prepaid Postsecondary Ed. 
Expense Bd. v College Savings Bank,
527 U S ----- , ------, 144 L Ed 2d 575,
119 S Ct 2199 (1999); Alden v Maine,
527 U S ----- , ------, 144 L Ed 2d 636,
119 S Ct 2240 (1999). Indeed, in Col­
lege Savings Bank, we rested our de­
cision to overrule the constructive 
waiver rule of Parden v Terminal R. 
Co. o f Ala. Docks Dept., 377 US 184, 
12 L Ed 2d 233, 84 S Ct 1207 (1964), 
in part, on our Seminole Tribe hold­
ing. See College Savings Bank, su­
pra, a t ----- , 144 L Ed 2d 605, 119 S
Ct 2219 (“Recognizing a congressio­
nal power to exact constructive waiv­
ers of sovereign im m unity through 
the exercise of Article I powers would 
also, as a practical m atter, perm it 
Congress to circumvent the antiabro­
gation holding of Seminole Tribe11). 
Under our firmly established prece­
dent then, if the ADEA rests solely 
on Congress’ Article I commerce 
power, the  p rivate  p e titio n ers  in 
today’s cases cannot m aintain their 
suits against their state employers.

[1b] Justice Stevens disputes that 
w ell-established  precedent again.
Compare p o s t ,-------------- , 145 L Ed
2d, at 548-552, with Alden, supra, at
----- , 144 L Ed 2d 636, 119 S Ct 2240
(Souter, J., dissenting); College Sav­
ings Bank, 527 US, a t ----- , 144 L Ed
2d 605, 119 S Ct 2219 (Stevens, J.,
dissenting); id., a t ----- , 144 L Ed 2d
605, 119 S Ct 2219 (Breyer, J., dis­
senting); Florida Prepaid, supra, a t
----- , 144 L Ed 2d 575, 119 S Ct 2199
(Stevens, J ., dissenting); Seminole 
Tribe, 517 US, at 76-100, 134 L Ed 
2d 252, 116 S Ct 1114 (Stevens, J., 
dissenting); id., a t 100-185, 134 L Ed 
2d 252, 116 S Ct 1114 (Souter, J., 
dissenting). In Alden, we explained 
tha t, “[a lthough  the sovereign im­
munity of the States derives a t least 
in part from the common-law trad i­
tion, the structure and history of the 
Constitution make clear that the im­
munity exists today by constitutional
design.” 527 US, a t ----- , 144 L Ed
2d 636, 119 S Ct 2240. For purposes 
of today’s decision, it is sufficient to 
note that we have on more than one 
occasion explained the substan tia l 
reasons for adhering to tha t constitu­
tional design. See id., a t ----- , 144 L
Ed 2d 636, 119 S Ct 2240; College
Savings Bank, supra, a t ----- , 144 L
Ed 2d 605, 119 S Ct 2219; Seminole 
Tribe, supra, a t 54-55, 59-73, 134 L 
Ed 2d 252, 116 S Ct 1114; Petinsylva- 
nia v Union Gas Co.,, 491 US 1, 30- 
42, 105 L Ed 2d 1, 109 S Ct 2273 
(1989) (Scalia, J., concurring in part 
and dissenting in part). Indeed, the 
present dissenters’ refusal to accept 
the validity and na tu ra l import of 
decisions like Hans, rendered over a 
full century ago by this Court, makes 
it difficult to engage in additional 
meaningful debate on the place of 
state sovereign immunity in the Con­
stitution. Compare Hans, 134 US, at

539



U.S. SUPREME COURT REPORTS 145 L Ed 2d

10, 14-16, 33 L Ed 842, 10 S Ct 504,
w ith post, a t ---------------, 145 L Ed
2d, at 550-551. Today we adhere to 
our holding in Seminole Tribe: Con­
gress’ powers under Article I of the 
C onstitu tion  do not include the 
power to subject States to suit at the 
hands of private individuals.

[6] Section 5 of the  F ourteen th  
Am endm ent, however, does g ran t 
Congress the authority to abrogate 
the S ta tes’ sovereign immunity. In 
Fitzpatrick v Bitzer, 427 US 445, 49 
L Ed 2d 614, 96 S Ct 2666 (1976), we 
recognized  th a t  “ th e  E lev en th  
Am endm ent, and the principle of 
state sovereignty which it embodies, 
are necessarily limited by the en­
forcement provisions of § 5 of the 
Fourteenth Amendment.” Id ., at 456, 
49 L Ed 2d 614, 96 S Ct 2666 (cita­
tion omitted). Since our decision in 
Fitzpatrick, we have reaffirmed the 
validity of tha t congressional power 
on num erous occasions. See, e.g., 
College Savings Bank, supra, at , 
144 L Ed 2d 605, 119 S Ct 2219;
Florida Prepaid, supra, a t ----- , 144
L Ed 2d 575, 119 S Ct 2199; Alden,
supra, a t ----- , 144 L Ed 2d 636, 119
S Ct 2240; Seminole Tribe, supra, at 
59, 134 L Ed 2d 252, 116 S Ct 1114. 
Accordingly, the private petitioners 
in these cases may m aintain their 
ADEA suits against the States of Al­
abama and Florida if, and only if, the 
ADEA is appropriate legislation un­
der § 5.

B
[7] The Fourteen th  Am endment 

provides, in relevant part:

“Section 1. . . .  No S ta te  shall 
m ake or enforce any law which 
shall abridge the privileges or im­
munities of citizens of the United 
States; nor shall any State deprive

any person of life, liberty, or prop­
erty, without due process of law; 
nor deny to any person within its 
jurisdiction the equal protection of 
the laws.”

“Section 5. The Congress shall 
have power to enforce, by appropri­
ate legislation, the provisions of 
this article.”

As we recognized most recently in 
City o f Boerne v Flores, 521 US 507, 
517, 138 L Ed 2d 624, 117 S Ct 2157
(1997), § 5 is an affirmative grant of 
power to Congress. “It is for Congress 
in the first instance to ldetermin[e] 
w hether and w hat legislation is 
needed to secure the guarantees of 
the Fourteenth Amendment,’ and its 
conclusions are entitled to much def­
erence.” Id ., at 536, 138 L Ed 2d 624, 
117 S Ct 2157 (quoting Katzenbach v 
Morgan, 384 US 641, 651, 16 L Ed 
2d 828, 86 S Ct 1717 (1966)). Con­
gress’ § 5 power is not confined to the 
enactment of legislation that merely 
parrots the precise wording of the 
F o u rteen th  A m endm ent. R ather, 
C ongress’ power “to enforce” the  
Amendment includes the authority 
both to remedy and to deter violation 
of rights guaranteed thereunder by 
prohib iting  a som ew hat broader 
sw ath  of conduct, including th a t  
which is not itself forbidden by the 
Amendment’s text. 521 US, at 518, 
138 L Ed 2d 624, 117 S Ct 2157.

[8] Nevertheless, we have also rec­
ognized that the same language that 
serves as the basis for the affirma­
tive g ran t of congressional power 
also serves to limit th a t power. For 
example, Congress cannot “decree 
the  substance of the Fourteenth  
A m endm ent’s res tric tio n s  on the 
States. . . .  It has been given the 
power ‘to enforce,’ not the power to

540



determine what constitutes a consti­
tutional violation.” Id., at 519, 138 L 
Ed 2d 624, 117 S Ct 2157 (emphases 
added). The ultim ate interpretation 
and determination of the Fourteenth 
Am endment’s substantive m eaning 
remains the province of the Judicial 
Branch. Id., a t 536, 138 L Ed 2d 624, 
117 S Ct 2157. In City o f Boerne, we 
no ted  th a t  th e  d e te rm in a tio n  
w hether purported ly  prophylactic 
legislation constitu tes appropriate 
remedial legislation, or instead ef­
fects a substantive redefinition of the 
Fourteenth Amendment right a t is­
sue, is often difficult. Id., at 519-520, 
138 L Ed 2d 624, 117 S Ct 2157. The 
line between the two is a fine one. 
Accordingly, recognizing tha t “Con­
gress m ust have wide la titu d e  in 
determining where [that line] lies,” 
we held that “[t]here must be a con­
gruence and proportionality between 
the injury to be prevented or rem­
edied and the means adopted to that 
end.” Id., a t 520, 138 L Ed 2d 624, 
117 S Ct 2157.

In City of Boerne, we applied that 
“congruence and proportionality” test 
and held tha t the Religious Freedom 
Restoration Act of 1993 (RFRA) was 
not appropriate legislation under § 5. 
We first noted th a t the legislative 
record contained very little evidence 
of the unconstitutional conduct pur­
portedly targeted by RFRA’s sub­
stantive provisions. Rather, Congress 
had uncovered only “anecdotal evi­
dence” that, standing alone, did not 
reveal a “widespread pattern of reli­
gious discrimination in this country.” 
Id., a t 531, 138 L Ed 2d 624, 117 S 
Ct 2157. Second, we found th a t 
RFRA is “so out of proportion to a 
supposed rem edia l or p reven tive  
object th a t it cannot be understood 
as responsive to, or designed to pre­
vent, unconstitutional behavior.” Id.,

KIMEL v FLORIDA
(2000) 145 L

at 532, 138 L Ed 2d 624, 117 S Ct 
2157.

Last Term, we again had occasion 
to apply the “congruence and propor­
tionality” test. In Florida Prepaid, 
we considered the  valid ity  of the 
E leven th  A m endm ent abrogation  
provision in the Paten t and P lan t 
Variety Protection Remedy Clarifica­
tion Act (Patent Remedy Act). We 
held tha t the statute, which sub­
jected States to patent infringement 
suits, was not appropriate legislation 
under § 5 of the Fourteenth Amend­
ment. The Patent Remedy Act failed 
to meet our congruence and propor­
tionality test first because “Congress 
identified no pa ttern  of pa ten t in ­
fringement by the States, let alone a 
pattern of constitutional violations.”
527 US, at ----- , 144 L Ed 2d 575,
119 S Ct 2199 (em phasis added). 
Moreover, because it was unlikely 
th a t many of the acts of paten t in­
fringem ent affected by the s ta tu te  
had any likelihood of being unconsti­
tutional, we concluded that the scope 
of the Act was out of proportion to 
its supposed remedial or preventive
objectives. Id., a t ----- , 144 L Ed 2d
575, 119 S Ct 2199. Instead, “[t]he 
s ta tu te ’s apparen t and more basic 
aims were to provide a uniform rem­
edy for paten t infringem ent and to 
place States on the same footing as 
private parties under th a t regime.”
Id., a t ----- , 144 L Ed 2d 575, 119 S
Ct 2199. W hile we acknowledged 
th a t such aims may be proper con­
gressional concerns under Article I, 
we found them  insufficient to sup­
port an abrogation of the  S ta te s ’ 
Eleventh Amendment imm unity af­
ter Seminole Tribe. Florida Prepaid,
supra, a t ----- , 144 L Ed 2d 575, 119
S Ct 2199.

BD. OF REGENTS
Ed 2d 522

541



U.S. SUPREME COURT REPORTS 145 L Ed 2d

C

[1c] Applying the same “congru­
ence and proportionality” te s t in 
these cases, we conclude th a t the 
ADEA is not “appropriate legisla­
tion” under § 5 of the Fourteenth  
Amendment. Initially, the substan­
tive requirements the ADEA imposes 
on state  and local governments are 
disproportionate to any unconstitu­
tional conduct that conceivably could 
be targe ted  by the Act. We have 
considered claims of unconstitutional 
age discrimination under the Equal 
Protection Clause three times. See 
Gregory v Ashcroft, 501 US 452, 115 
L Ed 2d 410, 111 S Ct 2395 (1991); 
Vance v Bradley, 440 US 93, 59 L Ed 
2d 171, 99 S Ct 939 (1979); M as­
sachusetts Bd. o f R etirem en t v 
Murgia, 427 US 307, 49 L Ed 2d 520, 
96 S Ct 2562 (1976) (per curiam). In 
all three cases, we held that the age 
classifications at issue did not violate 
the Equal Protection Clause. See 
Gregory, supra, at 473, 115 L Ed 2d 
410, 111 S Ct 2395; Bradley, supra, 
a t 102-103, n 20, 108-112, 59 L Ed 
2d 171, 99 S Ct 939; Murgia, supra, 
a t 317, 49 L Ed 2d 520, 96 S Ct 2562. 
Age classifications, unlike govern­
m ental conduct based on race or 
gender, cannot be characterized as 
“so seldom relevant to the achieve­
ment of any legitimate state interest 
that laws grounded in such consider­
ations are deemed to reflect prejudice 
and antipathy.” Cleburne v Cleburne 
Living Center, Inc., 473 US 432, 440, 
87 L Ed 2d 313, 105 S Ct 3249 
(1985). Older persons, again, unlike 
those who suffer discrim ination on 
the basis of race or gender, have not 
been subjected to a “ ‘history of 
purposeful unequal trea tm en t.’ ” 
Murgia, supra, at 313, 49 L Ed 2d 
520, 96 S Ct 2562 (quoting San Anto­
nio Independent School Dist. v Rod­

riguez, 411 US 1, 28, 36 L Ed 2d 16, 
93 S Ct 1278 (1973)). Old age also 
does not define a discrete and insular 
minority because all persons, if they 
live out their normal life spans, will 
experience it. 427 US. at 313-314, 49 
L Ed 2d 520, 96 S Ct 2562. Accord­
ingly, as we recognized in Murgia, 
Bradley, and Gregory, age is not a 
suspect classification under the 
Equal Protection Clause. See, e.g., 
Gregory, supra, at 470, 115 L Ed 2d 
410, 111 S Ct 2395; Bradley, supra, 
at 97, 59 L Ed 2d 171, 99 S Ct 939; 
Murgia, supra, at 313-314, 49 L Ed 
2d 520, 96 S Ct 2562.

[9a, 10] States may discriminate on 
the basis of age w ithout offending 
the Fourteenth Amendment if the 
age classification in question is ratio­
nally related to a legitim ate state  
interest. The rationality commanded 
by the Equal Protection Clause does 
not require States to match age dis­
tinctions and the legitimate interests 
they serve with razorlike precision. 
As we have explained, when conduct­
ing rational basis review “we will not 
overturn such [government action] 
unless the varying treatm ent of dif­
ferent groups or persons is so unre­
lated to the achievement of any com­
bination of legitimate purposes that 
we can only conclude that the [gov­
ernm ent’s] actions were irrational.” 
Bradley, supra, a t 97, 59 L Ed 2d 
171, 99 S Ct 939. In contrast, when 
a State discriminates on the basis of 
race or gender, we require a tighter 
fit between the discriminatory means 
and the legitimate ends they serve. 
See, e.g., Adarand Constructors, Inc. 
v Pena, 515 US 200, 227, 132 L Ed 
2d 158, 115 S Ct 2097 (1995) (“[Ra­
cial] classifications are constitutional 
only if they are narrow ly tailored 
m easures th a t fu rther compelling 
governmental interests”); Mississippi

Univ. fo, 
718, 724. 
3331 (1< 
classifica 
if they se 
tal objec 
natory r 
stantiall; 
of those 
ted)). Un 
ment, a 
proxy foi 
characte 
the Stat* 
Constitu 
ance on 
age prow 
in any ii 
“[W ]hen 
S ta te  ‘d 
P rotecth  
the class 
are imp( 
316, 49 1 
(quoting 
US 471, 
Ct 1153 ( 
age class 
rational, 
its constii 
of provin 
the classi 
could not 
be true 
sionmaks 
59 L Ed 
Gregory, 
410, 111

[11] Ou
ley, and 
principles 
th a t  the 
g e n e r a l  
did not v 
C lau se , 
against a 
a M assa 
s ta te  pol

542



KIMEL v FLORIDA BD. OF REGENTS
(2000) 145 L Ed 2d 522

Univ. for Women v Hogan, 458 US 
718, 724, 73 L Ed 2d 1090, 102 S Ct 
3331 (1982) (holding th a t gender 
classifications are constitutional only 
if they serve “ ‘important governmen­
tal objectives and . . . the discrimi­
natory means employed’ are ‘sub­
stantially related to the achievement 
of those objectives’ ” (citation omit­
ted)). Under the Fourteenth Amend­
ment, a State may rely on age as a 
proxy for other qualities, abilities, or 
characteristics th a t are relevant to 
the S tate’s legitimate interests. The 
Constitution does not preclude reli­
ance on such generalizations. That 
age proves to be an inaccurate proxy' 
in any individual case is irrelevant. 
“ [W]here rationality  is the test, a 
S ta te  ‘does not violate the  Equal 
Protection Clause m erely because 
the classifications made by its laws 
are imperfect.’ ” Murgia, supra, a t 
316, 49 L Ed 2d 520, 96 S Ct 2562 
(quoting Dandridge v Williams, 397 
US 471, 485, 25 L Ed 2d 491, 90 S 
Ct 1153 (1970)). Finally, because an 
age classification is presum ptively 
rational, the individual challenging 
its constitutionality bears the burden 
of proving tha t the “facts on which 
the classification is apparently based 
could not reasonably be conceived to 
be true by the governmental deci­
sionmaker.” Bradley, supra, a t 111, 
59 L Ed 2d 171, 99 S Ct 939; see 
Gregory, supra, at 473, 115 L Ed 2d 
410, 111 S Ct 2395. 11

[11] Our decisions in Murgia, Brad­
ley , and Gregory i llu s tra te  these  
principles. In all three cases, we held 
th a t the S ta tes’ reliance on broad 
generalizations with respect to age 
did not violate the Equal Protection 
C lause. In M urgia , we upheld  
against an equal protection challenge 
a M assachusetts s ta tu te  requiring 
sta te  police officers to retire a t age

50. The State justified the provision 
on the ground that the age classifica­
tion assured the State of the physi­
cal preparedness of its officers. 427 
US, at 314-315. 49 L Ed 2d 520, 96 
S Ct 2562. Although we acknowl­
edged th a t Officer Murgia him self 
was in excellent physical health and 
could still perform the duties of a 
state police officer, we found that the 
statute clearly met the requirements 
of the Equal Protection Clause. Id., 
at 311, 314-317, 49 L Ed 2d 520, 96 
S Ct 2562. “That the S tate chooses 
not to determine fitness more pre­
cisely through individualized testing 
after age 50 [does not prove] that the 
objective of assuring physical fitness 
is not rationally  fu rthered  by a 
m axim um -age lim ita tio n .” Id ., a t 
316, 49 L Ed 2d 520, 96 S Ct 2562. 
In Bradley, we considered an equal 
protection challenge to a federal sta t­
ute requiring Foreign Service officers 
to retire at age 60. We explained: “If 
increasing age brings with it increas­
ing susceptibility to physical difficul­
ties, . . . the fact th a t individual 
Foreign Service employees may be 
able to perform past age 60 does not 
invalidate  [the sta tu te] any more 
than did the similar tru th  undercut 
compulsory retirem ent at age 50 for 
uniformed sta te  police in Murgia." 
440 US, at 108, 59 L Ed 2d 171, 99 
S Ct 939. Finally, in Gregory, we up­
held a provision of the Missouri Con­
s titu tio n  th a t  requ ired  judges to 
retire at age 70. Noting that the Mis­
souri provision was based on a gener­
alization about the effect of old age 
on the ability of individuals to serve 
as judges, we acknowledged that “[i]t 
is far from true that all judges suffer 
significant deterioration in perfor­
mance at age 70,” “[i]t is probably 
not true that most do,” and “[i]t may 
not be true at all.” 501 US, at 473,

543



U.S. SUPREME COURT REPORTS 145 L Ed 2d

115 L Ed 2d 410, 111 S Ct 2395. 
Nevertheless, because Missouri’s age 
classification was subject only to 
rational basis review, we held tha t 
the State’s reliance on such imperfect 
generalizations was entirely proper 
under the Equal Protection Clause. 
Ibid. These decisions thus demon­
stra te  tha t the constitutionality of 
sta te  classifications on the basis of 
age cannot be determ ined on a 
person-by-person basis. Our Consti­
tution permits States to draw lines 
on the basis of age when they have a 
rational basis for doing so at a class- 
based level, even if it “is probably 
not true” that those reasons are valid 
in the majority of cases.

[1d] Judged against the backdrop 
of our equal pro tection  ju r is p ru ­
dence, it is clear th a t the ADEA is 
“so out of proportion to a supposed 
remedial or preventive object that it 
cannot be understood as responsive 
to, or designed to prevent, unconsti­
tutional behavior.” City o f Boerne, 
521 US, at 532, 138 L Ed 2d 624, 117 
S Ct 2157. The Act, through its broad 
restriction on the use of age as a 
discriminating factor, prohibits sub­
stantially more state employment de­
cisions and practices th an  would 
likely be held unconstitutional under 
the applicable equal protection, ratio­
nal basis s ta n d a rd . The ADEA 
makes unlawful, in the employment 
context, all “discriminat[ion] against 
any individual . . . because of such 
individual’s age.” 29 USC § 623(a)(1) 
[29 USCS § 623(a)(1)], Petitioners, 
relying on the Act’s exceptions, dis­
pute the extent to which the ADEA 
erects protections beyond the Consti­
tution’s requirements. They contend 
that the Act’s prohibition, considered 
together with its exceptions, applies 
only to arbitrary age discrimination, 
which in the majority of cases cor­

responds to conduct that violates the 
Equal Protection Clause. We d is­
agree.

Petitioners stake the ir claim on 
§ 623(f)(1). That section permits em­
ployers to rely on age when it “is a 
bona fide occupational qualification 
reasonably necessary to the normal 
operation of the particular business.” 
P etitioners’ reliance on the “bona 
fide occupational q u a lifica tio n ” 
(BFOQ) defense is misplaced. Our in­
terpretation of § 623(f)(1) in Western 
A ir Lines, Inc. v Criswell, 472 US 
400, 86 L Ed 2d 321, 105 S Ct 2743 
(1985), conclusively dem onstrates 
that the defense is a far cry from the 
rational basis standard we apply to 
age discrimination under the Equal 
Protection Clause. The petitioner in 
that case maintained that, pursuant 
to the  BFOQ defense, em ployers 
m ust be perm itted to rely on age 
when such reliance has a “rational 
basis in fact.” Id., a t 417, 86 L Ed 2d 
321, 105 S Ct 2743. We rejected that 
argum ent, exp lain ing  th a t  “ [t]he 
BFOQ standard adopted in the sta t­
ute is one of ‘reasonable necessity,’ 
not reasonableness,” id., at 419, 86 L 
Ed 2d 321, 105 S Ct 2743, and that 
the ADEA standard and the rational 
basis tes t are “significantly differ­
ent,” id., at 421, 86 L Ed 2d 321, 105 
S Ct 2743.

U nder the ADEA, even with its 
BFOQ defense, the State’s use of age 
is prima facie unlawful. See 29 USC 
§ 623(a)(1) [29 USCS § 623(a)(1)]; 
Western Air Lines, 472 US, a t 422, 
86 L Ed 2d 321, 105 S Ct 2743 (“Un­
der the Act, employers are to evalu­
ate employees . . .  on their m erits 
and not their age”). Application of 
the Act therefore starts with a pre­
sumption in favor of requiring the 
employer to make an individualized 
determination. See ibid. In Western

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544



KIMEL v FLORIDA BD. OF REGENTS
(2000) 145 L Ed 2d 522

A ir Lines, we concluded th a t  the 
BFOQ defense, which shifts the focus 
from the merits of the individual em­
ployee to the necessity for the age 
classification as a whole, is “ ‘m eant 
to be an extremely narrow exception 
to the  general prohib ition’ of age 
d iscrim ination  contained  in the 
ADEA.” Id., a t 412, 86 L Ed 2d 321, 
105 S Ct 2743 (citation omitted). We 
based that conclusion on both the re­
strictive language of the sta tu tory  
BFOQ provision itself and the EE­
OC’s regu lation  in te rp re tin g  th a t 
exception. See 29 CFR § 1625.6(a)
(1998) (“It is anticipated th a t this 
concept of a [BFOQ] will have limited 
scope and application. Further, as 
th is is an exception to the  Act it 
m ust be narrow ly construed”). To 
succeed under the BFOQ defense, we 
held th a t an employer must demon­
strate either “a substantial basis for 
believing th a t all or nearly all em ­
ployees above an age lack the qualifi­
cations required for the position,” or 
that reliance on the age classification 
is necessary because “it is highly im ­
practical for the employer to insure 
by individual testing that its employ­
ees will have the necessary qualifica­
tions for the job.” 472 US, at 422- 
423, 86 L Ed 2d 321, 105 S Ct 2743 
(emphases added). Measured against 
the rational basis standard  of our 
equal protection jurisprudence, the 
ADEA plainly imposes substantially 
higher burdens on state  employers. 
Thus, although it is true that the ex­
istence of the BFOQ defense makes 
the ADEA’s prohibition of age dis­
crim ination less than  absolute, the 
Act’s substantive requirements nev­
ertheless rem ain a t a level akin to 
our heightened scrutiny cases under 
the Equal Protection Clause.

[1 e, 9b, 12] Petitioners also place 
some reliance on the next clause in

§ 623(f)(1), which permits employers 
to engage in conduct otherwise pro­
hibited by the Act “where the dif­
ferentiation is based on reasonable 
factors other than age.” This excep­
tion confirms, however, ra ther than 
disproves, the conclusion th a t the 
ADEA’s protection extends beyond 
the requirements of the Equal Pro­
tection Clause. The exception simply 
m akes clear th a t “ [t]he employer 
cannot rely on age as a proxy for an 
employee’s remaining characteristics, 
such as productivity, but must in­
stead focus on those factors directly.” 
Hazen Paper Co. v Biggins, 507 US 
604, 611, 123 L Ed 2d 338, 113 S Ct 
1701 (1993). Under the Constitution, 
in contrast, States may rely on age 
as a proxy for other characteristics. 
See Gregory, 501 US, at 473, 115 L 
Ed 2d 410, 111 S Ct 2395 (generali­
zation about ability  to serve as 
judges at age 70); Bradley, 440 US, 
at 108-109, 112, 59 L Ed 2d 171, 99 
S Ct 939 (generalization about abil­
ity to serve as Foreign Service officer 
at age 60); Murgia, 427 US, a t 314- 
317, 49 L Ed 2d 520, 96 S Ct 2562 
(generalization about ability to serve 
as state police officer at age 50). Sec­
tion 623(f)(1), then, merely confirms 
th a t Congress, through the ADEA, 
has effectively elevated the standard 
for analyzing age discrim ination to 
heightened scrutiny.

[1f, 13] That the ADEA prohibits 
very little conduct likely to be held 
unconstitutional, while significant, 
does not alone provide the answer to 
our § 5 inquiry. Difficult and intrac­
table problems often require power­
ful remedies, and we have never held 
th a t § 5 precludes Congress from 
enacting  reasonably  prophylactic  
legislation. Our task is to determine 
w hether the ADEA is in fact ju s t 
such an appropriate remedy or, in-

545



U.S. SUPREME COURT REPORTS 145 L Ed 2d

stead, merely an attem pt to substan­
tively redefine the States legal obli­
g a tio n s  w ith  re sp e c t to age 
discrimination. One means by which 
we have made such a determination 
in the past is by examining the legis­
lative record containing the reasons 
for Congress’ action. See, e.g., Flor­
ida Prepaid, 527 US, a t ------------ ,
144 L Ed 2d 575, 119 S Ct 2199; City 
of Boerne, 521 US, at 530-531, 138 L 
Ed 2d 624, 117 S Ct 2157. “The ap­
propriateness of remedial measures 
m ust be considered in light of the 
evil presented. Strong measures ap­
propriate to address one harm  may 
be an unw arranted response to an ­
other, lesser one.” Id., at 530, 138 L 
Ed 2d 624, 117 S Ct 2157 (citing 
South Carolina v Katzenbach, 383 
US 301, 308, 15 L Ed 2d 769, 86 S 
Ct 803 (1966)).

Our exam ination of the ADEA’s 
legislative record confirms that Con­
gress’ 1974 extension of the Act to 
the States was an unw arranted re­
sponse to a perhaps inconsequential 
problem. Congress never identified 
any pattern of age discrimination by 
the States, much less any discrimina­
tion whatsoever tha t rose to the level 
of constitutional violation. The evi­
dence compiled by p e titio n e rs  to 
demonstrate such attention by Con­
gress to age discrim ination by the 
S tates falls well short of the mark. 
That evidence consists almost en­
tirely of isolated sentences clipped 
from floor debates 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 Committee 
on Aging, Improving the Age Dis­
crim ination Law, 93d Cong., 1st 
Sess., 14 (Comm. P rin t 1973); 113 
Cong. Rec. 34742 (1967) (remarks of

Sen. Steiger); id., a t 34749 (remarks 
of Rep. Donohue); 110 Cong. Rec. 
13490 (1964) (rem ark s  of Sen. 
Smathers); id., a t 9912 (rem arks of 
Sen. Sparkman); id., a t 2596 (re­
marks of Rep. Beckworth). The state­
m ents of Senator B entsen on the 
floor of the Senate are indicative of 
the strength of the evidence relied on 
by petitioners. See, e.g., 118 Cong. 
Rec. 24397 (1972) (s ta tin g  th a t 
“there  is ample evidence th a t age 
discrim ination is broadly practiced 
in governm ent em ploym ent,” but 
relying on newspaper articles about 
federal employees); id., a t 7745 (“Let­
ters  from my own S ta te  have re ­
vealed th a t S tate and local govern­
m ents have also been guilty  of 
discrimination toward older employ­
ees”); ibid. (“[TJhere are strong indi­
cations th a t the h iring  and firing 
practices of governmental units dis­
criminate against the elderly . . .”).

Petitioners place additional reli­
ance on Congress’ consideration of a 
1966 report prepared by the State of 
California on age discrim ination in 
its public agencies. See Hearings on 
H. R. 3651 et al. before the Subcom­
mittee on Labor of the House of Rep­
resentatives Committee on Educa­
tion and Labor, 90th Cong., 1st Sess., 
pp 161-201 (1967) (Hearings) (re­
printing State of California, Citizens’ 
Advisory Committee on Aging, Age 
D iscrim ination in Public Agencies 
(1966)). Like the assorted sentences 
petitioners cobble together from a 
decade’s worth of congressional re­
ports and floor debates, the Califor­
nia study does not indicate tha t the 
State had engaged in any unconsti­
tutional age discrimination. In fact, 
the report stated tha t the majority of 
the age limits uncovered in the state 
survey applied in the law enforce­
m ent and firefighting occupations.

546



KIMEL v FLORIDA BD. OF REGENTS
(2000) 145 L Ed 2d 522

Hearings 168. Those age limits were 
not only perm itted under California 
law a t the time, see ibid., but are 
also currently  perm itted under the 
ADEA. See 5 USC §§ 3307(d), (e) [5 
USCS §§ 3307(d), (e)]; 29 USC 
§ 623(j) (1994 ed., Supp III) [29 
USCS § 623(j)]. Even if the Califor­
nia report had uncovered a pattern  
of unconstitutional age discrim ina­
tion in the State’s public agencies at 
the time, it nevertheless would have 
been insufficient to support Congress’ 
1974 extension of the ADEA to every 
State of the Union. The report simply 
does not constitute “evidence th a t 
[unconstitutional age discrimination] 
had become a problem of national 
im port.” Florida Prepaid, supra, a t
----- , 144 L Ed 2d 575, 119 S Ct
2199.

Finally, the United S ta tes’ argu­
ment tha t Congress found substan­
tial age discrimination in the private 
sector, see Brief for United States 38, 
is beside the point. Congress made 
no such findings with respect to the 
States. Although we also have doubts 
w hether the findings Congress did 
make with respect to the private sec­
tor could be extrapolated to support 
a finding of unconstitu tiona l age 
discrimination in the public sector, it 
is sufficient for these cases to note 
th a t Congress failed to identify a 
widespread pattern of age discrimi­
nation by the States. See Florida
Prepaid, 527 US, a t ----- , 144 L Ed
2d 575, 119 S Ct 2199.

[1 g] A review of the ADEA’s legis­
lative record as a whole, then, re­

veals that Congress had virtually no 
reason to believe that state and local 
governments were unconstitutionally 
discriminating against their employ­
ees on the basis of age. Although 
that lack of support is not determina­
tive of the § 5 inquiry, id., a t ----- ,
144 L Ed 2d 575, 119 S Ct 2199; City 
of Boerne, 521 US, at 531-532, 138 L 
Ed 2d 624, 117 S Ct 2157, Congress’ 
failure to uncover any significant 
pattern of unconstitutional discrimi­
nation here confirms th a t Congress 
had no reason to believe tha t broad 
prophylactic legislation was neces­
sary  in th is  field. In ligh t of the 
ind iscrim ina te  scope of the  Act’s 
substantive requirem ents, and the 
lack of evidence of widespread and 
unconstitutional age discrimination 
by the S tates, we hold th a t the 
ADEA is not a valid exercise of Con­
gress’ power under § 5 of the Four­
tee n th  A m endm ent. The ADEA’s 
purported abrogation of the S ta tes’ 
sovereign im m unity is accordingly 
invalid.

D
[14] Our decision today does not 

signal the end of the line for employ­
ees who find themselves subject to 
age discrim ination a t the hands of 
their state employers. We hold only 
that, in the ADEA, Congress did not 
validly abrogate the States’ sovereign 
immunity to suits by private indi­
viduals. State employees are pro­
tected by sta te  age discrim ination 
s ta tu te s , and may recover money 
damages from their state employers, 
in almost every State of the Union.*

* 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 et seq. (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. Ann. §§ 112.044, 760.01 
et seq. (1997 and Supp 1998); Ga. Code Ann. § 45-19-21 et seq. (1990 and Supp 1996); Haw. 
Rev. Stat. § 378-1 et seq. (1993 and Cum. Supp 1998); Idaho Code § 67-5901 et seq. (1995 and 
Supp 1999); 111. Comp. Stat., ch 775, § 5/1-101 et seq. (1998); Ind. Code § 22-9-2-1 et seq. (1993);

547



U .s. SUPREME COURT REPORTS 145 L Ed 2d

Those avenues of relief remain avail­
able today, ju st as they were before 
this decision.

[1 h] Because the ADEA does not 
validly abrogate the States’ sovereign

SEPARATE

Justice Stevens, with whom Ju s­
tice Souter, Justice Ginsburg, and 
Justice B reyer join, dissenting in 
part and concurring in part.

Congress’ power to regulate  the 
A m erican economy includes the 
power to regulate  both the public 
and the private sectors of the labor 
m arke t. F edera l ru les  outlaw ing  
discrimination in the workplace, like 
the regulation of wages and hours or 
health and safety standards, may be 
enforced against public as well as 
private employers. In my opinion, 
Congress’ power to authorize federal 
remedies against state agencies that 
violate federal statu tory  obligations 
is coextensive with its power to im­
pose those obligations on the States 
in the first place. Neither the Elev­
enth Amendment nor the doctrine of 
sovereign immunity places any limit 
on that power. See Seminole Tribe of

immunity, however, the present suits 
m ust be dismissed. Accordingly, the 
judgment of the Court of Appeals is 
affirmed.

It is so ordered.
OPINIONS

Fla. v Florida, 517 US 44, 165-168, 
134 L Ed 2d 252, 116 S Ct 1114 
(1996) (Souter, J., dissenting); EEOC 
v Wyoming, 460 US 226, 247-248, 75 
L Ed 2d 18, 103 S Ct 1054 (1983) 
(Stevens, J., concurring).

The application of the ancient 
judge-made doctrine of sovereign im­
munity in cases like these is suppos­
edly justified as a freestanding limit 
on congressional authority , a lim it 
necessary to protect S tates’ "dignity 
and respect” from impairment by the 
National Government. The Fram ers 
did not, however, select the Judicial 
Branch as the constitutional guard­
ian of those state  interests. Rather, 
the Fram ers designed im portan t 
structural safeguards to ensure that 
when the National Government en­
acted substantive law (and provided 
for its enforcement), the normal op­
era tion  of the  leg islative  process

Iowa Code § 216.1 et seq. (1994 and Supp 1999); Kan. Stat. Ann. § 44-1111 et seq. (1993 and 
Cum. 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. (West Supp 1999); Me. Rev. Stat. 
Ann., Tit. 5, § 4551 et seq. (1998-1999 Supp); Md. Ann. Code, Art. 49B, § 1 et seq. (1998 and 
Supp 1999); Mass. Gen. Laws § 151:1 et seq. (West 1997 and Supp 1998); Mich. Comp. Laws 
§ 37.2101 et seq. (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:l et seq. (1995 and Supp 1998); N. 
J. Stat. Ann. §§ 10:3-1, 10:5-1 et seq. (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. (1997 and 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. (1995 and Supp 1997); S. C. Code Ann. § 1-13-10 et seq. (1986 
and Cum. Supp 1998); Tenn. Code Ann. § 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 et seq. (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 and Supp 1998); Wyo. Stat. Ann. § 27-9-101 et seq. (1999).

548



I

KIMEL v FLORIDA BD. OF REGENTS
(2000) 145 L Ed 2d 522

itself would adequately defend state 
interests from undue infringement. 
See generally Wechsler, The Political 
Safeguards of Federalism: The Role 
of the States in the Composition and 
Selection of the N ational Govern­
ment, 54 Colum. L. Rev. 543 (1954).

It is the Fram ers’ compromise giv­
ing each State equal representation 
in the Senate tha t provides the prin­
cipal s tru c tu ra l protection for the 
sovereignty of the several S ta tes. 
The composition of the Senate was 
originally determined by the legisla­
tu res  of the  S ta tes, which would 
guarantee th a t their interests could 
not be ignored by Congress.1 The 
Framers also directed tha t the House 
be composed of Representatives se­
lected by voters in the several States, 
the consequence of which is th a t “the 
states are the strategic yardsticks for 
the  m easurem ent of in te re s t and 
opinion, the special centers of politi­
cal activity, the separate geographi­
cal determ inants of national as well 
as local politics.” Id.., a t 546.

Whenever Congress passes a s ta t­
ute, it does so against the back­
ground of state law already in place;

the propriety of taking national ac­
tion is thus measured by the metric 
of the existing state norms that Con­
gress seeks to supplem ent or sup­
p lan t.1 2 The persuasiveness of any 
justification for overcoming legisla­
tive inertia  and taking national ac­
tion, e ith e r c rea ting  new federal 
obligations or providing for th e ir 
enforcem ent, m ust necessarily  be 
judged in reference to state interests, 
as expressed in existing state laws. 
The precise scope of federal laws, of 
course, can be shaped with nuanced 
attention to state interests. The Con­
gress also has the authority to grant 
or w ithhold  ju risd ic tion  in lower 
federal courts. The burden of being 
haled into a federal forum for the 
enforcement of federal law, thus, can 
be expanded or contracted as Con­
gress deems proper, which decision, 
like all other legislative acts, neces­
sarily contemplates state  interests. 
Thus, Congress can use its  broad 
range of flexible legislative tools to 
approach the delicate issue of how to 
balance local and national interests 
in the most responsive and careful 
manner.3 It is quite evident, there­
fore, tha t the Fram ers did not view

1. The Federalist No. 45, p 291 (C. Rossiter ed. 1961 (J. Madison)) (“The State governments 
may be regarded as constituent and essential parts of the federal government . . . .  The Sen­
ate will be elected absolutely and exclusively by the State legislatures . . . .  Thus, [it] will owe 
its existence more or less to the favor of the State governments, and must consequently feel a 
dependence, which is much more likely to beget a disposition too obsequious than too overbear­
ing towards them”).

2. When Congress expanded the ADEA in 1974 to apply to public employers, all 50 States 
had some form of age discrimination law, but 24 of them did not extend their own laws to pub­
lic employers. See App. to Brief for Respondents la-25a.

3. Thus, the present majority’s view does more than simply aggrandize the power of the 
Judicial Branch. It also limits Congress’ options for responding with precise attention to state 
interests when it takes national action. The majority’s view, therefore, does not bolster the 
Framers’ plan of structural safeguards for state interests. Rather, it is fundamentally at odds 
with that plan. Indeed, as Justice Breyer has explained, forbidding private remedies may neces­
sitate the enlargement of the federal bureaucracy and make it more difficult “to decentralize 
governmental decisionmaking and to provide individual citizens, or local communities, with a 
variety of enforcement powers.” College Savings Bank v Florida Prepaid Postsecondary Ed.
Expense Bd., 527 U S-----, ----- , 144 L Ed 2d 605, 119 S Ct 2219 (1999) (dissenting opinion); see
also Printz v United States, 521 US 898, 976-978, 138 L Ed 2d 914, 117 S Ct 2365 (1997) 
(Breyer, J., dissenting).

549



U.S. SUPREME COURT REPORTS 145 L Ed 2d

this Court as the ultim ate guardian 
of the S tates’ in terest in protecting 
their own sovereignty from im pair­
ment by “burdensome” federal laws.4

Federalism  concerns do make it 
appropriate for Congress to speak 
clearly when it regulates state ac­
tion. But when it does so, as it has 
in these cases,5 we can safely pre­
sume tha t the burdens the sta tu te  
imposes on the sovereignty of the 
several S tates were taken into ac­
count during the deliberative process 
leading to the enactment of the mea­
sure. Those burdens necessarily in­
clude the cost of defending against 
enforcement proceedings and paying 
w hatever penalties m ight be in ­
curred for violating the sta tu te . In 
my judgment, the question whether 
th o se  en fo rcem en t p roceed ings 
should be conducted exclusively by 
federal agencies, or may be brought 
by private parties as well, is a m at­
ter of policy for Congress to decide. 
In either event, once Congress has 
made its policy choice, the sover­
eignty concerns of the several States 
are satisfied, and the federal interest

in evenhanded enforcement of fed­
eral law, explicitly endorsed in Ar­
ticle VI of the Constitution, does not 
countenance fu rth e r  lim ita tions. 
There is not a word in the text of the 
Constitution supporting the Court’s 
conclusion that the judge-made doc­
trine of sovereign imm unity limits 
Congress’ power to authorize private 
parties, as well as federal agencies, 
to enforce federal law against the 
States. The importance of respecting 
the Fram ers’ decision to assign the 
business of lawmaking to the Con­
gress dictates firm resistance to the 
present majority’s repeated substitu­
tion of its own views of federalism for 
those expressed in sta tu tes enacted 
by the Congress and signed by the 
President.

The Eleventh Amendment simply 
does not support the Court’s view. As 
has been stated before, the Amend­
ment only places a textual limitation 
on the diversity jurisdiction of the 
federal courts. See Atascadero State 
Hospital v Scanlon, 473 US 234, 286- 
289, 87 L Ed 2d 171, 105 S Ct 3142 
(1985) (B rennan , J ., d issen ting).

4. The President also plays a role in the enactment of federal law, and the Framers likewise 
provided structural safeguards to protect state interests in the selection of the President. The 
electors who choose the President are appointed in a manner directed by the state legislatures. 
Art. II, § 1, cl. 2. And if a majority of electors do not cast their vote for one person, then the 
President is chosen by the House of Representatives. “But in chusing the President” by this 
manner, the Constitution directs that “the Votes shall be taken by States, the Representatives 
from each State having one Vote.” Art. II, § 1, cl. 3 (emphasis added); see also Arndt. 12.

Moreover, the Constitution certainly protects state interests in other ways as well, as in the 
provisions of Articles IV, V, and VII. My concern here, however, is with the respect for state 
interests safeguarded by the ordinary legislative process. The balance between national and lo­
cal interests reflected in other constitutional provisions may vary, see, e.g., U. S. Term Limits, 
Inc. v Thornton, 514 US 779, 131 L Ed 2d 881, 115 S Ct 1842 (1995), but insofar as Congress’ 
legislative authority is concerned, the relevant constitutional provisions were crafted to ensure 
that the process itself adequately accounted for local interests.

I also recognize that the Judicial Branch sometimes plays a role in limiting the product of the 
legislative process. It may do so, for example, when the exercise of legislative authority runs up 
against some other constitutional command. See Seminole Tribe of Fla. v Florida, 517 US 44, 
166-167, 134 L Ed 2d 252, 116 S Ct 1114 (1996) (Souter, J., dissenting). But in those instances, 
courts are not crafting wholly judge-made doctrines unrelated to any constitutional text, nor 
are they doing so solely under the guise of the necessity of safeguarding state interests.

5. Because Congress has clearly expressed its intention to subject States to suits by private 
parties under the ADEA, I join Part III of the Opinion of the Court.

550



Because the Amendment is a part 
tBe Constitution, I have never under­
stood how its limitation on the diver­
sity ju risd ic tion  of federal courts 
defined in Article III could be “abro­
gated” by an Act of Congress. Sem i­
nole Tribe, 517 US, at 93, 134 L Ed 
2d 252, 116 S Ct 1114 (Stevens, J., 
dissenting). Here, however, private 
petitioners did not invoke the federal 
courts’ d iversity  jurisdiction; they 
are citizens of the same State as the 
defendants and they are asserting 
claims tha t arise under federal law. 
Thus, today’s decision (relying as it 
does on Seminole Tribe) rests en­
tirely on a novel judicial in terpreta­
tion of the doctrine of sovereign im­
m unity,I 6 which the Court trea ts  as 
though it were a constitutional pre­
cept. It is nevertheless clear to me 
th a t if Congress has the power to 
create the federal rights th a t these 
petitioners are  asserting , it m ust 
also have the power to give the fed­
eral courts jurisd ic tion  to rem edy 
violations of those rights, even if it is 
necessary to “abrogate” the Court’s 
“E leventh Am endm ent” version of 
the common-law defense of sovereign 
immunity to do so. That is the es­
sence of the Court’s holding in Penn­
sylvania v Union Gas Co., 491 US 1, 
13-23, 105 L Ed 2d 1, 109 S Ct 2273 
(1989).

I remain convinced that Union Gas 
was correctly decided and th a t the 
decision of five Justices in Seminole 
Tribe to overrule tha t case was pro­
foundly misguided. Despite my re ­
spect for stare decisis, I am unwill­
ing to accept Seminole Tribe as 
controlling precedent. First and fore­

most, the reasoning of tha t opinion 
is so profoundly m istaken and so 
fundamentally inconsistent with the 
Fram ers’ conception of the constitu­
tional order that it has forsaken any 
claim to the usual deference or re­
spect owed to decisions of this Court. 
Stare decisis, furtherm ore, has less 
force in the area of constitutional 
law. See, e.g., Burnet v Coronado Oil 
& Gas Co., 285 US 393, 406-410, 76 
L Ed 815, 52 S Ct 443 (1932) (Bran- 
deis, J ., d issen ting). And in th is  
instance, it is but a hollow pretense 
for any State to seek refuge in stare 
decisis’ protection of reliance inter­
ests. It cannot be credibly m ain­
tained th a t a S tate’s ordering of its 
affairs with respect to potential li­
ability under federal law requires 
adherence to Seminole Tribe, as that 
decision leaves open a S ta te ’s li­
ability upon enforcement of federal 
law by federal agencies. Nor can a 
State find solace in the stare decisis 
in te rest of prom oting “the even- 
handed . . . and consistent develop­
m ent of legal principles.” Payne v 
Tennessee, 501 US 808, 827, 115 L 
Ed 2d 720, 111 S Ct 2597 (1991). 
T hat principle is perverted  when 
invoked to rely  on sovereign im ­
m unity as a defense to deliberate 
violations of settled federal law. Fur­
ther, Seminole Tribe is a case th a t 
will unquestionab ly  have serious 
ramifications in future cases; indeed, 
it has already had such an effect, as 
in the Court’s decision today and in 
the  equally  m isguided opinion of
Alden  v Maine, 527 U S ----- , 144 L
Ed 2d 636, 119 S Ct 2240 (1999). 
Further still, the Seminole Tribe de­
cision unnecessarily forces the Court

6. Under the traditional view, the sovereign immunity defense was recognized only as a mat­
ter of comity when asserted in the courts of another sovereign, rather than as a limitation on 
the jurisdiction of that forum. See Schooner Exchange v McFaddon, 7 Cranch 116, 136, 3 L Ed 
287 (1812) (Marshall, C. J.); Nevada v Hall, 440 US 410, 414-418, 59 L Ed 2d 416, 99 S Ct 1182 
(1979).

KIMEL v FLORIDA BD. OF REGENTS
(2000) 145 L Ed 2d 522 

of

551



U.S. SUPREME COURT REPORTS 145 L Ed 2d

to resolve vexing questions of consti­
tutional law respecting Congress’ § 5 
authority. Finally, by its own re­
peated overruling of earlier prece­
dent, the majority has itself dis­
counted the im portance of stare 
decisis in this area of the law.7 The 
kind of judicial activism manifested 
in cases like Seminole Tribe, Alden v 
Maine, Florida Prepaid Postsecond­
ary Ed. Expense Bd. v College Sav­
ings Bank, 527 U S ----- , 144 L Ed 2d
575, 119 S Ct 2199 (1999), and Col­
lege Savings Bank v Florida Prepaid 
Postsecondary Ed. Expense Bd., 527
U S ----- , 144 L Ed 2d 605, 119 S Ct
2219 (1999), represents such a radi­
cal departure from the proper role of 
this Court tha t it should be opposed 
whenever the opportunity arises.

Accordingly, I respectfully dissent.

Justice Thomas, with whom Ju s­
tice K ennedy joins, concurring in 
part and dissenting in part.

In Atascadero S ta te  H ospital v 
Scanlon, 473 US 234, 87 L Ed 2d 
171, 105 S Ct 3142 (1985), this 
Court, cognizant of the impact of an 
abrogation of the S ta tes’ Eleventh 
Amendment imm unity from suit in 
federal court on “the usual constitu­
tional balance between the S tates 
and the Federal Government,” reaf­
firmed tha t “Congress may abrogate 
. . . only by m aking its in tention 
unm istakably clear in the language 
of the sta tu te .” Id., a t 242, 87 L Ed

2d 171, 105 S Ct 3142. This rule 
“ ‘assures tha t the legislature has in 
fact faced, and intended to bring into 
issue, the critical m atters involved 
in the judicial decision.’ ” Will v 
Michigan Dept, o f State Police, 491 
US 58, 65, 105 L Ed 2d 45, 109 S Ct 
2304 (1989) (quoting United States v 
Bass, 404 US 336, 349, 30 L Ed 2d 
488, 92 S Ct 515 (1971)). And it is 
especially applicable when this Court 
deals w ith a s ta tu te  like the Age 
Discrimination in Employment Act 
of 1967 (ADEA), whose substantive 
mandates extend to “elevator opera­
tors, jan itors, charwomen, security 
guards, secretaries, and the like in 
every office bu ild ing  in a S ta te ’s 
governmental hierarchy.” Employees 
o f Dept, o f Public Health and Welfare 
of Mo. v Department of Public Health 
and Welfare o f Mo., 411 US 279, 285, 
36 L Ed 2d 251, 93 S Ct 1614 (1973). 
Because I th ink th a t Congress has 
not made its intention to abrogate 
“unm istakably clear” in the text of 
the  ADEA, I respectfu lly  d issen t 
from Part III of the Court’s opinion.1 1

I
It is n a tu ra l to begin the clear 

sta tem en t inquiry  by exam ining 
those provisions th a t reside within 
the four corners of the Act in ques­
tion. P riva te  p e titio n ers  and the  
governm ent correctly observe th a t 
the ADEA’s substantive provisions 
extend to the S tates as employers, 
see 29 USC § 623(a) [29 USCS

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7. See, e.g., College Savings Bank v Florida Prepaid Postsecondary Ed. Expense Bd., 527 US, J
a t -----, 144 L Ed 2d 605, 119 S Ct 2219 (overruling Parden v Terminal R. Co. of Ala. Docks 1
Dept., 377 US 184, 12 L Ed 2d 233, 84 S Ct 1207 (1964)); Seminole Tribe, 517 US, at 63-73, 134 (
L Ed 2d 252, 116 S Ct 1114 (overruling Pennsylvania v Union Gas Co., 491 US 1, 105 L Ed 2d i
1, 109 S Ct 2273 (1989)); Pennhurst State School and Hospital v Halderman, 465 US 89, 127,
132-137, 79 L Ed 2d 67, 104 S Ct 900 (1984) (Stevens, J., dissenting) (“[T]he Court repudiates
at least 28 cases, spanning well over a century of this Court’s jurisprudence”). f

1. I concur in Parts I, II, and IV of the Court’s opinion because I agree that the purported 
abrogation of the States’ Eleventh Amendment immunity in the ADEA falls outside Congress’
§ 5 enforcement power.

552



KIMEL v FLORIDA BD. OF REGENTS
(2000) 145 L Ed 2d 522

§ 623(a)] (providing th a t “[i]t shall 
be unlawful for an employer” to en­
gage in certain age discrim inatory 
practices); § 630(b) (defining “em­
ployer” to include “a State or a polit­
ical subdivision of a State”); § 630(f) 
(defining “employee” as “an individ­
ual employed by any employer”), and 
tha t the ADEA establishes an indi­
vidual right-of-action provision for 
“aggrieved” persons, see § 626(c)(1) 
(“Any person aggrieved may bring a 
civil action in any court of competent 
jurisdiction for such legal or equita­
ble relief as will effectuate the pur­
poses of this chapter”). Since, in the 
case of a sta te  employee, the only 
possible defendant is the State, it is 
submitted that Congress clearly ex­
pressed its in tent th a t a sta te  em­
ployee may qualify as a “person ag­
grieved” under § 626(c)(1) and bring 
su it against his s ta te  employer in 
federal court.

While the argum ent may have 
some logical appeal, it is squarely 
foreclosed by precedent—which ex­
plains the Court’s decision to employ 
different reasoning in finding a clear
statem ent, see ante, a t ----- , 145 L
Ed 2d, a t 535. In Employees, we 
confronted the pre-1974 version of 
th e  F a ir  L abor S ta n d a rd s  Act 
(FLSA), which clearly extended as a 
substantive m atter to state employ­
ers, and included the following pri­
vate right-of-action provision: “ ‘Ac­
tion to recover such liability may be 
maintained in any court of competent 
jurisdiction.’ ” Employees, supra, a t 
283, 36 L Ed 2d 251, 93 S Ct 1614 
(quoting 29 USC § 216(b) (1970 ed.) 
[29 USCS § 216(b)]). We held th a t 
th is language fell short of a clear 
statem ent of Congress’ intent to ab­
rogate. The FLSA’s substantive cov­
erage of s ta te  employers could be 
given meaning through enforcement

by the Secretary  of Labor, which 
would raise no Eleventh Amendment 
issue, 411 US, at 285-286, 36 L Ed 
2d 251, 93 S Ct 1614, and we were 
“reluctant to believe th a t Congress 
in pursuit of a harmonious federal­
ism desired to trea t the S tates so 
harshly” by abrogating their Elev­
enth Amendment immunity, id., at 
286, 36 L Ed 2d 251, 93 S Ct 1614. 
See also, e.g., Dellmuth v Muth, 491 
US 223, 228, 105 L Ed 2d 181, 109 S 
Ct 2397 (1989) (holding that Con­
gress had not clearly stated its intent 
to abrogate in a statute that autho­
rized “parties aggrieved . . .  to ‘bring 
a civil action . . .  in any State court 
of com petent ju risd ic tion  or in a 
d istrict court of the United S tates 
w ithout regard  to the  am ount in 
controversy’ ”) (quoting 20 USC 
§ 1415(e)(2) (1982 ed.) [20 USCS 
§ 1415(e)(2)]).

The ADEA is no different from the 
version of the FLSA we examined in 
Employees. It unquestionably ex­
tends as a substan tive  m a tte r  to 
sta te  employers, but does not m en­
tion States in its right-of-action pro­
vision: “Any person aggrieved may 
bring a civil action in any court of 
competent jurisdiction for such legal 
or equitable relief as will effectuate 
the purposes of th is chapter.” 
29 USC § 626(c)(1) [29 USCS 
§ 626(c)(1)]. This provision simply 
does not reveal Congress’ attention 
to the augmented liability and dimin­
ished sovereignty concomitant to an 
abrogation of Eleventh Amendment 
immunity. “Congress, acting respon­
sibly, would not be presumed to take 
such action silently.” Employees, 
supra, a t 284-285, 36 L Ed 2d 251, 
93 S Ct 1614.

II
Perhaps recognizing the obstacle

553



U.S. SUPREME COURT REPORTS 145 L Ed 2d

posed by Employees, private petition­
ers and the government contend that 
the ADEA incorporates a clear state­
m ent from the FLSA. The ADEA’s 
incorporating reference, which has 
rem ained constant since the enact­
ment of the ADEA in 1967, provides: 
“The provisions of this chapter shall 
be enforced in accordance with the 
powers, rem edies, and procedures 
provided in sections 211(b), 216 (ex­
cept for subsection (a) thereof), and 
217 of this title, and subsection (c) of 
th is section.” 29 USC § 626(b) [29 
USCS § 626(b)]. It is argued th a t 
§ 216;b)—one of the  incorporated 
provisions from th e  FLSA—u n ­
equivocally abrogates the States’ im­
m unity from suit in federal court. 
That section states in relevant part 
th a t “[a]n action to recover the li­
ability  prescribed in e ither of the 
preceding sentences may be main­
tained against any employer (includ­
ing a public agency) in any Federal 
or State court of competent jurisdic­
tion .” 29 USC § 216(b) [29 USCS 
§ 216(b)],

But, as noted in the above discus­
sion of Employees, § 216(b) was not 
always so worded. At the time the 
ADEA was enacted in 1967, a rela­
tively sparse version of § 216(b)— 
which Employees held insufficient to 
ab rogate  the  S ta te s ’ im m unity— 
provided that an “[a]ction to recover 
such liability may be maintained in 
any court of competent jurisdiction.” 
29 USC § 216(b) (1964 ed.) [29 USCS 
§ 216(b)]. It was not until 1974 that 
Congress modified § 216(b) to its cur­
ren t formulation. Fair Labor S tan ­
dards Am endm ents of 1974 (1974 
Amendments), § 6(d)(1), 88 Stat. 61.

This sequence of events suggests, 
in my view, tha t we should approach 
w ith circumspection any theory of 
“clear statem ent by incorporation.”

W here Congress am ends an Act 
whose provisions are incorporated by 
other Acts, the bill under consider­
ation does not necessarily mention 
the incorporating references in those 
other Acts, and so fails to inspire 
confidence that Congress has deliber­
ated on the consequences of the 
amendment for the other Acts. That 
is the case here. The legislation that 
am ended § 216(b), § 6(d)(1) of the 
1974 Amendments, did not even ac­
knowledge § 626(b). And, given the 
purpose of the clear statem ent rule 
to “ ‘assurfe] that the legislature has 
in fact faced’ ” the issue of abroga­
tion, Will, 491 US, a t 65, 105 L Ed 
2d 45, 109 S Ct 2304 (quoting Bass, 
404 US, at 349, 30 L Ed 2d 488, 92 
S Ct 515), I am unwilling to indulge 
the fiction th a t Congress, when it 
am ended § 216(b), recognized the 
consequences for a separate Act (the 
ADEA) th a t  in c o rp o ra te s  th e  
amended provision.

To be sure, § 28 of the  1974 
Amendments, 88 Stat. 74, did modify 
certain  provisions of the ADEA, 
which might suggest th a t Congress 
understood the impact of § 6(d)(1) on
the ADEA. See ante, a t ----- , 145 L
Ed 2d, a t 537. But § 6(d)(2)(A), an­
other of the 1974 Amendments, sug­
gests ju s t  the  opposite. Section 
6(d)(2)(A) added to the statute of lim­
itations provision of the FLSA, 29 
USC § 255 [29 USCS § 255], a new 
subsection (d), which suspended the 
running of the sta tu tory  periods of 
lim itation on “any cause of action 
brought under section 16(b) of the 
[FLSA, 29 USC § 216(b) [29 USCS 
§ 216(b)]] . . .  on or before April 18, 
1973,” the date Employees was de­
cided, until “one hundred and eighty 
days after the effective date of [the 
1974 Amendments].” The purpose of 
th is new subsection—revealed not



KIMEL v FLORIDA BD. OF REGENTS
(2000) 145 L Ed 2d 522

only by its reference to the date Em ­
ployees was decided, but also by its 
exception for actions in which “judg­
ment has been entered for the defen­
dant on the grounds other than State 
im m unity from Federal ju risd ic ­
tion”—was to allow FLSA plaintiffs 
■who had been fru stra ted  by sta te  
defendants’ invocation of Eleventh 
Am endm ent im m unity under E m ­
ployees to avail them selves of the 
newly amended § 216(b).2 It appears, 
however, th a t Congress was oblivi­
ous to the impact of § 6(d)(2)(A) on 
the  ADEA. The new § 255(d), by 
operation of § 7(e) of the ADEA, 29 
USC § 626(e) [29 USCS § 626(e)] 
(1988 ed.) (“Sectiofn] 255 . . .  of this 
title shall apply to actions under this 
ch ap te r”),3 au tom atica lly  becam e 
part of the ADEA in 1974. And yet 
the new § 255(d) could have no pos­
sible application to the ADEA be­
cause, as the Court observes, ante,
a t ----- , 145 L Ed 2d, a t 537 (citing
§ 28(a) of the 1974 Amendments), 
the ADEA’s substantive m andates 
did not even apply to the States until 
the 1974 Amendments. Thus, before 
1974, th e re  were no ADEA su its  
against States that could be affected 
by § 255(d)’s to lling  provision. If 
Congress had recognized this “over­
inclusiveness” problem, it likely 
would have amended § 626(e) to in­
corporate  only §§ 255(a)-(c). Cf. 
§ 626(b) (incorporating “the powers, 
remedies, and procedures provided 
in sectiofn] . . . 216 (except for sub­

section (a) thereof’) (emphasis add­
ed)). But since Congress did not do 
so, we are left to conclude that Con­
gress did not clearly focus on the 
impact of § 6(d)(2)(A)" on the ADEA. 
And Congress’ insouciance with re­
spect to the impact of § 6(d)(2)(A) 
suggests that Congress was similarly 
inattentive to the impact of § 6(d)(1).

Insofar as § 6(d)(2)(A) is closer to 
§ 6(d)(1) in terms of space and pur­
pose than  is § 28, the implication I 
would draw from § 6(d)(2)(A) almost 
certainly outweighs the inference the 
Court would draw from § 28. In any 
event, the notion th a t § 28 of the 
1974 Amendments evidences Con­
gress’ awareness of every last ripple 
those am endm ents might cause in 
the ADEA is at best a permissible 
inference, not “the unequivocal dec­
la ra tio n  which . . .  is necessary  
before we will determine that Con­
gress intended to exercise its powers 
of abrogation.” Dellmuth, 491 US, at 
232, 105 L Ed 2d 181, 109 S Ct 2397.

The Court advances a more gen­
eral critique of my approach, explain­
ing th a t “we have never held th a t 
Congress m ust speak with differ­
ent gradations of clarity depen­
ding on the specific circumstances of 
the relevant legislation . . . .” Ante,
a t ---------------, 145 L Ed 2d, a t 537-
538. But th a t descriptive observa­
tion, with which I agree, is hardly 
probative in light of the fact th a t a 
“clear sta tem ent by incorporation” 
argum ent has not to date been

2. That Congress had this purpose in mind as to the FLSA does not mean that the product of 
Congress’ efforts—the amended § 216(b)— qualifies as a clear statement. The amended 
§ 216(b)’s description of the forum as “any Federal . . . court of competent jurisdiction,” 29 USC 
§ 216(b) [29 USCS § 216(b)] (emphasis added), is ambiguous insofar as a Federal court might
not be “competent” unless the State defendant consents to suit. See infra, a t ------------- , 145 L
Ed 2d, at 558-559. My present point is simply that, even assuming the amended § 216(b) quali­
fies as a clear statement, the 1974 Congress likely did not contemplate the impact of the new 
§ 216(b) on the ADEA.

3. The ADEA was amended in 1991 to remove the incorporating reference. See Civil Rights 
Act of 1991, § 115, 105 Stat. 1079, 29 USC § 626(e) [29 USCS § 626(e)],

555



U.S. SUPREME COURT REPORTS 145 L Ed 2d

presented to th is Court. I acknowl­
edge th a t our previous cases have 
not required a clear statement to ap­
pear within a single section or sub­
section of an Act. Pennsylvania  v 
Union Gas Co., 491 US 1, 7-10, 105 
L Ed 2d 1, 109 S Ct 2273 (1989), 
overruled on other grounds, Seminole 
Tribe o f Fla. v Florida, 517 US 44, 
134 L Ed 2d 252, 116 S Ct 1114 
(1996); see also id., a t 56-57, 134 L 
Ed 2d 252, 116 S Ct 1114 (confirm­
ing clear statem ent in one statutory 
subsection by looking to provisions 
in other subsection). Nor have our 
cases required th a t such separate  
sections or subsections of an Act be 
passed at the same time. Union Gas, 
supra, at 7-13, and n 2, 105 L Ed 2d 
1, 109 S Ct 2273 (consulting original 
provisions of the  C om prehensive 
Environmental Response, Compensa­
tion, and Liability Act of 1980 and 
1986 amendments to tha t Act). But, 
even accepting Union Gas to be cor­
rectly decided, I do not think the sit­
uation where Congress amends an 
incorporated provision is analogous 
to Union Gas. In the Union Gas set­
ting, where the later Congress actu­
ally amends the earlier-enacted Act, 
it is reasonable to assume th a t the 
later Congress focused on each of the 
various provisions, w hether new or 
old, that combine to express an in­
tent to abrogate. Ill

Ill

Even if a clarifying amendment to 
an incorporated provision m ight 
sometimes provide a clear statement 
to abrogate for purposes of the Act 
into which the provision is incorpo­
rated, this is not such a case for two 
reasons. F irst, § 626(b) does not 
c learly  in co rp o ra te  th e  p a r t  of 
§ 216(b) th a t establishes a private 
right-of-action again st employers.

Second, even assuming § 626(b) in­
corporates § 216(b) in its entirety , 
§ 216(b) itself falls short of an “un­
mistakably clear” expression of Con­
gress’ intent to abrogate the S tates’ 
E leven th  A m endm ent im m unity  
from suit in federal court.

A

I do not dispute tha t § 626(b) incor­
porates into the ADEA some provi­
sions of § 216(b). But it seems to me 
a t least open to debate w hether 
§ 626(b) incorporates the portion of 
§ 216(b) th a t creates an individual 
private right of action, for the ADEA 
a lready  contains its  own p riv a te  
right-of-action provision—§ 626(c)(1). 
See McKennon v Nashville Banner 
Publishing Co., 513 US 352, 358, 130 
L Ed 2d 852, 115 S Ct 879 (1995) 
(“The ADEA . . . contains a vital el­
ement found in both Title VII and 
the  F a ir Labor S tandards Act: It 
g rants an injured employee a right 
of action to obtain the  authorized 
relief. 29 USC § 626(c) [29 USCS 
§ 626(c)]”); 1 B. L indem ann & P. 
Grossman, Employment Discrimina­
tion Law 573-574 (3d ed. 1996) (“The 
ADEA grants any aggrieved person 
the right to sue for legal or equitable 
relief that will effectuate the pur­
poses of the Act” (citing § 626(c)(1)) 
(footnote omitted)). While the right- 
of-action provisions in § 626(c) and 
§ 216(b) are not identically phrased, 
compare § 626(c)(1) (“Any person ag­
grieved may bring a civil action in 
any court of competent jurisdiction 
for such legal or equitable relief as 
will effectuate the purposes of th is 
chapter”), with § 216(b) (“An action 
to recover the liability prescribed in 
e ither of the  preceding sentences 
may be maintained against any em­
ployer (including a public agency) in 
any Federal or State court of compe­

556



KIMEL v FLORIDA BD. OF REGENTS
(2000) 145 L Ed 2d 522

ten t ju risd ic tion  . . . “), they are 
certainly similar in function.

Indeed, if § 216(b)’s private right- 
of-action provision were incorporated 
by § 626(b) and hence available to 
ADEA plaintiffs, the analogous right 
of action established by § 626(c)(1) 
would be wholly superfluous—an 
interpretive problem the Court does 
not even pause to acknowledge. To 
avoid the overlap, one m ight read 
the  ADEA to create  an exclusive  
private right-of-action in § 626(c)(1), 
and then to add various embellish­
ments, w hether from elsewhere in 
the ADEA, see § 626(c)(2) (trial by 
jury), or from the incorporated parts 
of the FLSA, see, e.g., § 216(b) (col­
lective actions); ibid, (a tto rn ey ’s 
fees); ibid, (liquidated damages).4

Of course the Court’s in te rp re ta ­
tion—th a t an ADEA plaintiff may 
choose § 626(c)(1) or § 216(b) as the 
basis for his private right of ac­
tion—is also plausible. “But such a 
permissible inference, w hatever its 
logical force, would remain just that: 
a permissible inference. It would not 
be the unequivocal declaration which 
. . .  is necessary before we will de­
term ine th a t Congress intended to 
exercise its powers of abrogation.” 
Dellmuth, 491 US, at 232, 105 L Ed 
2d 181, 109 S Ct 2397. Apparently 
cognizant of th is  ru le, the  C ourt 
reso rts  to ex trinsic  evidence: our 
prior decisions. See, e.g., ante, a t
----- , 145 L Ed 2d, a t 536 (“ ‘[T]he
ADEA incorporates enforcement pro­

visions of the Fair Labor Standards 
Act of 1938, and provides th a t the 
ADEA shall be enforced using certain 
of the powers, remedies, and proce­
dures of the FLSA' ” (alteration in 
orig inal)) (quoting H offm ann-La  
Roche Inc. v Sperling, 493 US 165, 
167, 107 L Ed 2d 480, 110 S Ct 482 
(1989) (citation omitted)). But judi­
cial opinions, especially those issued 
subsequen t to the  enactm ents in 
q u e s tio n , have  no b e a rin g  on 
whether Congress has clearly stated 
its in tent to abrogate in the text of 
the sta tu te . How could they, given 
th a t legislative h isto ry—which a t 
least antedates the enactments un­
der review—is “irrelevant to a judi­
cial inquiry into w hether Congress 
intended to abrogate the Eleventh 
Am endm ent”? Dellmuth, supra, a t 
230, 105 L Ed 2d 181, 109 S Ct 2397. 
In any event, Hoffmann-La Roche, 
which did not present the ques­
tion of a S ta te ’s Eleventh Amend­
ment immunity,5 is perfectly consis­
ten t with the view th a t the ADEA 
incorporates only “extras” from the 
FLSA, not overlapping provisions. 
H offm ann-La Roche involved the  
ADEA’s incorporation of FLSA’s au­
tho rization  of collective actions, 
which follows § 216(b)’s individual 
private right-of-action provision, see 
§ 216(b) (“An action to recover the li­
ability prescribed in e ither of the 
preceding sentences may be main­
tained against any employer (includ­
ing a public agency) in any Federal

4. The ADEA expressly limits this last remedy to “cases of willful violations.” 29 USC § 626(b) 
[29 USCS § 626(b)]; see Lorillard v Pons, 434 US 575, 581, 55 L Ed 2d 40, 98 S Ct 866 (1978).

5. That the Hoffmann-La Roche Court did not consider § 216(b)’s implications for the Eleventh 
Amendment clear statement rule is apparent from its selective quotation of § 216(b)—omitting 
the words “(including a public agency).” See Hoffmann-La Roche, Inc. v Sperling, 493 US, at 
167-168, 107 L Ed 2d 480, 110 S Ct 482 (“This controversy centers around one of the provisions 
the ADEA incorporates, which states, in pertinent part, that an action ‘may be maintained 
against any employer . . .  in any Federal or State court of competent jurisdiction by any one or 
more employees for and in behalf of himself or themselves and other employees similarly situ­
ated’ ” (alteration in original)) (quoting 29 USC § 216(b) (1982 ed.) [29 USCS § 216(b)]).

557



U.S. SUPREME COURT REPORTS 145 L Ed 2d

or State court of competent jurisdic­
tion by any one or more employees 
for and in behalf of himself or them­
selves and other employees similarly 
situated“ (emphasis added)), and so 
may be viewed as falling outside the 
overlap described above.6

follows from the modern § 216(b)’s 
clarity relative to the old § 216(b) 
th a t the modern § 216(b) is clear 
enough as an absolute  m a tte r  to 
satisfy the Atascadero rule, which 
requires “unmistakable” clarity.

B

Even if  § 626(b) inco rpo ra tes 
§ 216(b)’s individual right-of-action 
provision, tha t provision itself falls 
short of “unmistakable” clarity inso­
far as it describes the forum for suit 
as “any Federal or S ta te  court of 
competent jurisdiction.” § 216(b) (em­
phasis added). For it may be tha t a 
federal court is not “competent” un­
der the Eleventh Amendment to ad­
judicate a suit by a private citizen 
ag a in st a S ta te  unless the  S ta te  
consents to the suit. As we explained 
in Employees, “[t]he history and tra ­
dition of the Eleventh Amendment 
indicate th a t by reason of tha t bar­
rier a federal court is not competent 
to render judgment against a noncon­
senting State.” 411 US, at 284, 36 L 
Ed 2d 251, 93 S Ct 1614 (emphasis 
added). The Court suggests, ante, at 
——, 145 L Ed 2d, a t 538, that its 
ability to distinguish a single prece­
dent, ante, a t ----- , 145 L Ed 2d, at
536 (discussing Kennecott Copper 
Corp. v State Tax Comm’n, 327 US 
573, 90 L Ed 862, 66 S Ct 745 
(1946)), illum inates th is aspect of 
§ 216(b). But the Court neither ac­
knowledges what Employees had to 
say on this point nor explains why it

That is not to say th a t the FLSA  
as a whole lacks a clear statement of 
Congress’ intent to abrogate. Section 
255(d) elucidates the  am biguity 
w ithin § 216(b). Section 255(d), it 
will be recalled, suspended the run­
ning of the statute of limitations on 
actions under § 216(b) b rough t 
against a State or political subdivi­
sion on or before April 18, 1973 (the 
date Employees was decided) until 
one hundred and eighty days after 

the  effective date  of the  [1974 
Amendments], except that such sus­
pension shall not be applicable if in 
such action judgment has been en­
tered  for the defendant on the 
grounds other than State immunity  
from Federal jurisdiction.” § 255(d) 
(emphasis added). As I explained in 
P a rt II,7 however, not only does 
§ 255(d) on its face apply only to the 
FLSA, bu t C ongress’ fa ilu re  to 
amend the ADEA’s general incorpo­
ration of § 255, 29 USC § 626(e) 
(1988 ed.) [29 USCS § 626(e)], 
strongly suggests that Congress paid 
scant a ttention to the im pact of 
§ 255(d) upon the ADEA. Accord­
ingly, I cannot accept the notion that 
§ 255(d) furnishes clarifying guid­
ance in in terpreting  § 216(b) for 
ADEA purposes, whatever assistance

°ther two cases upon which the Court relies, see ante, a t -----, 145 L Ed 2d, at 536
nlor,gn , ^ eJ l:n0n7  Nashvllle Banner Publishing Co., 513 US 352, 357, 130 L Ed 2d 852 115 S 
Ct 879 (1995), and Lonllard v Pons, supra, at 582, 55 L Ed 2d 40, 98 S Ct 866), are also consis­
tent with the view that the ADEA incorporates only “extras” from the FLSA, not overlapping 
provisions. In neither case did we consider whether the ADEA incorporates the part of § 216(b) 
that creates a private action “against any employer (including a public agency) in any Federal 
or State court of competent jurisdiction.”

7. Supra, a t ------------- , 145 L Ed 2d, at 553-556.

558



it might provide to a construction of For these reasons, I respectfully 
§ 216(b) for FLSA purposes.8 dissent from Part III of the Court’s

* * * opinion.

KIMEL v FLORIDA BD. OF REGENTS
(2000) 145 L Ed 2d 522

8. While § 255 once was incorporated by the ADEA, see § 7(e), 81 Stat. 605. 29 USC § 626(e) 
(1988 ed.) [29 USCS § 626(e)], the ADEA was amended in 1991 to remove the incorporating ref­
erence, see Civil Rights Act of 1991, § 115, 105 Stat. 1079, 29 USC § 626(e) [29 USCS § 626(e)], 
The current “unavailability” of § 255(d) for ADEA purposes perhaps explains why the Court,
which purports to examine only the statute in its current form, ante, a t -----, 145 L Ed 2d, at
538. does not rely on § 255(d). But, as I have explained, without the light § 255(d) sheds on 
§ 216(b), § 216(b) falls short of a clear statement of Congress’ intent to abrogate.

559