Washington Law Review


Congress may constitutionally abrogate state sovereign immunity only through legislation enacted pursuant to Section 5 of the Fourteenth Amendment to the U.S. Constitution. In Kimel v. Florida Board of Regents, the U.S. Supreme Court held the Age Discrimination in Employment Act to be inappropriate Section 5 legislation. Kimel was the first time the Court held an anti-discrimination statute enacted to protect civil rights inapplicable to the states. Based on the Kimel decision, other civil rights statutes, such as the Equal Pay Act (EPA), may face similar challenges. This Comment argues that the EPA is appropriate Section 5 legislation. Unlike recent statutes struck down as inappropriate Section 5 legislation, the EPA does not grant plaintiffs more substantive rights than the Constitution. The EPA is a narrowly tailored statute enacted to prevent gender-based wage discrimination that violates the Fourteenth Amendment. Congress reviewed substantial evidence of gender-based wage discrimination by state employers before it enacted the EPA. Based on this evidence, Congress enacted the EPA to provide a remedy for such prevalent discrimination. Courts should find that the EPA is appropriate legislation under Section 5 to enforce the substantive guarantees of the Fourteenth Amendment's Equal Protection Clause.

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