(Slip Opinion) OCTOBER TERM, 1999 1 Syllabus NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus KIMEL ET AL. v. FLORIDA BOARD OF REGENTS ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT No. 98­791. Argued October 13, 1999- Decided January 11, 2000* The Age Discrimination in Employment Act of 1967 (ADEA or Act), as amended, makes it unlawful for an employer, including a State, "to fail or refuse to hire or to discharge any individual or otherwise dis- criminate against any individual . . . because of such individual's age." 29 U. S. C. §623(a)(1). Petitioners, three sets of plaintiffs, filed suit under the ADEA against respondents, their state employers. Pe- titioners' suits sought money damages for respondents' alleged dis- crimination on the basis of age. Respondents in all three cases moved to dismiss the suits on the basis of the Eleventh Amendment. The District Court in one case granted the motion to dismiss, while in each of the remaining cases the District Court denied the motion. All three decisions were appealed and consolidated before the Eleventh Circuit. Petitioner United States intervened on appeal to defend the constitutionality of the ADEA's abrogation of the States' Eleventh Amendment immunity. In a divided panel opinion, the Eleventh Cir- cuit held that the ADEA does not abrogate the States' Eleventh Amendment immunity. Held: Although the ADEA does contain a clear statement of Congress' intent to abrogate the States' immunity, that abrogation exceeded Congress' authority under §5 of the Fourteenth Amendment. Pp. 7­28. (a) The ADEA satisfies the simple but stringent test this Court uses to determine whether a federal statute properly subjects States to suits by individuals: Congress made its intention to abrogate the - - - - - - * Together with No. 98­796, United States v. Florida Board of Re- gents et al., also on certiorari to the same court. 2 KIMEL v. FLORIDA BD. OF REGENTS Syllabus States' immunity unmistakably clear in the language of the statute. Dellmuth v. Muth, 491 U. S. 223, 228. The ADEA states that its provi- sions "shall be enforced in accordance with the powers, remedies, and procedures provided in sections 211(b), 216 (except for subsection (a) thereof), and 217 of this title, and subsection (c) of this section." 29 U. S. C. §626(b). Section 216(b), in turn, authorizes employees to main- tain actions for backpay "against any employer (including a public agency) in any Federal or State court of competent jurisdiction . . . ." Section 203(x) defines "public agency" to include "the government of a State or political subdivision thereof," and "any agency of . . . a State, or a political subdivision of a State." The text of §626(b) forecloses respon- dents' claim that the existence of an enforcement provision in the ADEA itself renders Congress' intent to incorporate §216(b)'s clear statement of abrogation ambiguous. Congress' use of the phrase "court of compe- tent jurisdiction" in §216(b) also does not render its intent to abrogate less than clear. Finally, because the clear statement inquiry focuses on what Congress did enact, not when it did so, the Court will not infer ambiguity from the sequence in which a clear textual statement is added to a statute. Pp. 8­13. (b) This Court held in EEOC v. Wyoming, 460 U. S. 226, 243, that the ADEA constitutes a valid exercise of Congress' Article I Commerce Clause power. Congress' powers under Article I, however, do not in- clude the power to subject States to suit at the hands of private indi- viduals. Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 72­73. Section 5 of the Fourteenth Amendment does grant Congress the authority to abrogate the States' sovereign immunity. Fitzpatrick v. Bitzer, 427 U. S. 445, 456. Pp. 13­16. (c) Section 5 of the Fourteenth Amendment is an affirmative grant of power to Congress. City of Boerne v. Flores, 521 U. S. 507, 517. That power includes the authority both to remedy and to deter the violation of rights guaranteed thereunder by prohibiting a somewhat broader swath of conduct, including that which is not itself forbidden by the Amendment's text. Congress cannot, however, decree the substance of the Fourteenth Amendment's restrictions on the States. Id., at 519. The ultimate interpretation and determination of the Amendment's substantive meaning remains the province of the Judicial Branch. This Court has held that for remedial legislation to be appropriate under §5, "[t]here must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end." Id., at 520. Pp. 16­18. (d) The ADEA is not "appropriate legislation" under §5 of the Four- teenth Amendment. The ADEA's purported abrogation of the States' sovereign immunity is accordingly invalid. Pp. 18­27. (1) The substantive requirements the ADEA imposes on state and Cite as: 528 U. S. ____ (2000) 3 Syllabus local governments are disproportionate to any unconstitutional conduct that conceivably could be targeted by the Act. Age is not a suspect clas- sification under the Equal Protection Clause. See, e.g., Gregory v. Ash- croft, 501 U. S. 452, 470. States therefore may discriminate on the basis of age without offending the Fourteenth Amendment if the age classifi- cation in question is rationally related to a legitimate state interest. The rationality commanded by the Equal Protection Clause does not re- quire States to match age distinctions and the legitimate interests they serve with razorlike precision. Rather, a State may rely on age as a proxy for other qualities, abilities, or characteristics that are relevant to the State's legitimate interests. That age proves to be an inaccurate proxy in any individual case is irrelevant. Judged against the backdrop of this Court's equal protection jurisprudence, it is clear that 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, uncon- stitutional behavior." City of Boerne, supra, at 532. The Act, through its broad restriction on the use of age as a discriminating factor, pro- hibits substantially more state employment decisions and practices than would likely be held unconstitutional under the applicable equal protection, rational basis standard. Petitioners' reliance on the "bona fide occupational qualification" defense of §623(f)(1) is misplaced. This Court's decision in Western Air Lines, Inc. v. Criswell, 472 U. S. 400, conclusively demonstrates that the defense is a far cry from the rational basis standard the Court applies to age discrimination under the Equal Protection Clause. Although it is true that the existence of the defense makes the ADEA's prohibition of age discrimination less than absolute, the Act's substantive requirements nevertheless remain at a level akin to the Court's heightened scrutiny cases under the Equal Protection Clause. The exception in §623(f)(1) that permits employers to engage in conduct otherwise prohibited by the Act "where the differentiation is based on reasonable factors other than age" confirms, rather than dis- proves, the conclusion that the ADEA extends beyond the requirements of the Equal Protection Clause. That exception makes clear that the employer cannot rely on age as a proxy for an employee's characteris- tics, Hazen Paper Co. v. Biggins, 507 U. S. 604, 611, whereas the Con- stitution permits such reliance, see, e.g., Gregory, supra, at 473. Pp. 18­ 24. (2) That the ADEA prohibits very little conduct likely to be held unconstitutional, while significant, does not alone provide the answer to the §5 inquiry. Difficult and intractable problems often require power- ful remedies, and this Court has never held that §5 precludes Congress from enacting reasonably prophylactic legislation. One means by which the Court has determined the difference between a statute that consti- tutes an appropriate remedy and one that attempts to substantively re- 4 KIMEL v. FLORIDA BD. OF REGENTS Syllabus define the States' legal obligations is by examining the legislative record containing the reasons for Congress' action. See, e.g., City of Boerne, supra, at 530­531. A review of the ADEA's legislative record as a whole reveals that Congress had virtually no reason to believe that state and local governments were unconstitutionally discriminating against their employees on the basis of age. Congress never identified any pattern of age discrimination by the States, much less any discrimination whatso- ever that rose to the level of constitutional violation. That failure con- firms that Congress had no reason to believe that broad prophylactic legislation was necessary in this field. Pp. 24­27. (e) Today's decision does not signal the end of the line for employ- ees who find themselves subject to age discrimination at the hands of their state employers. Those employees are protected by state age discrimination statutes, and may recover money damages from their state employers, in almost every State of the Union. Pp. 27­28. 139 F. 3d 1426, affirmed. O'CONNOR, J., delivered the opinion of the Court, Parts I, II, and IV of which were joined by REHNQUIST, C. J., and SCALIA, KENNEDY, and THOMAS, JJ., and Part 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 concurring in part, in which SOUTER, GINSBURG, and BREYER, JJ., joined. THOMAS, J., filed an opin- ion concurring in part and dissenting in part, in which KENNEDY, J., joined. Cite as: 528 U. S. ____ (2000) 1 Opinion of the Court NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Wash- ington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ Nos. 98­791 and 98­796 _________________ J. DANIEL KIMEL, JR., ET AL., PETITIONERS 98­791 v. FLORIDA BOARD OF REGENTS ET AL. UNITED STATES, PETITIONER 98­796 v. FLORIDA BOARD OF REGENTS ET AL. ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT [January 11, 2000] JUSTICE O'CONNOR delivered the opinion of the Court. The Age Discrimination in Employment Act of 1967 (ADEA or Act), 81 Stat. 602, as amended, 29 U. S. C. §621 et seq. (1994 ed. and Supp. III), makes it unlawful for an employer, including a State, "to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual . . . because of such individual's age." 29 U. S. C. §623(a)(1). In these cases, three sets of plaintiffs filed suit under the Act, seeking money damages for their state employers' 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 District Court in one case granted the motion to dismiss, while in each of the remaining cases the District Court denied the motion. Appeals in the three cases were co n- solidated before the Court of Appeals for the Eleventh 2 KIMEL v. FLORIDA BD. OF REGENTS Opinion of the Court Circuit, which held that the ADEA does not validly ab- rogate the States' Eleventh Amendment immunity. In these cases, we are asked to consider whether the ADEA contains a clear statement of Congress' intent to abrogate the States' Eleventh Amendment immunity and, if so, whether the ADEA is a proper exercise of Congress' constitutional authority. We conclude that the ADEA does contain a clear statement of Congress' intent to abr o- gate the States' immunity, but that the abrogation ex- ceeded Congress' authority under §5 of the Fourteenth Amendment. IA The ADEA makes it unlawful for an employer "to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of emplo y- ment, because of such individual's age." 29 U. S. C. §623(a)(1). The Act also provides several exceptions to this broad prohibition. For example, an employer may rely on age where it "is a bona fide occupational qualific a- tion reasonably necessary to the normal operation of the particular business." §623(f)(1). The Act also permits an employer to engage in conduct otherwise prohibited by §623(a)(1) if the employer's action "is based on reasonable factors other than age," §623(f)(1), or if the employer "discharge[s] or otherwise discipline[s] an individual for good cause," §623(f)(3). Although the Act's prohibitions originally applied only to individuals "at least forty years of age but less than sixty-five years of age," 81 Stat. 607, 29 U. S. C. §631 (1964 ed., Supp. III), Congress subs e- quently removed the upper age limit, and the Act now covers individuals age 40 and over, 29 U. S. C. §631(a). Any person aggrieved by an employer's violation of the Act "may bring a civil action in any court of competent juri s- Cite as: 528 U. S. ____ (2000) 3 Opinion of the Court diction" for legal or equitable relief. §626(c)(1). Section 626(b) also permits aggrieved employees to enforce the Act through certain provisions of the Fair Labor Standards Act of 1938 (FLSA), and the ADEA specifically incorp o- rates §16(b) of the FLSA, 29 U. S. C. §216(b). Since its enactment, the ADEA's scope of coverage has been expanded by amendment. Of particular importance to these cases is the Act's treatment of state employers and employees. When first passed in 1967, the ADEA ap- plied only to private employers. See 29 U. S. C. §630(b) (1964 ed., Supp. III) (defining term "employer" to exclude "the United States, a corporation wholly owned by the Government of the United States, or a State or political subdivision thereof "). In 1974, in a statute consisting primarily of amendments to the FLSA, Congress extended application of the ADEA's substantive requirements to the States. Fair Labor Standards Amendments of 1974 (1974 Act), §28, 88 Stat. 74. Congress accomplished that ex- pansion in scope by a simple amendment to the definition of "employer" contained in 29 U. S. C. §630(b): "The term [employer] also means . . . a State or political subdivision of a State and any agency or instrumentality of a State or a political subdivision of a State . . . ." Congress also amended the ADEA's definition of "employee," still defi n- ing the term to mean "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 U. S. C. §216(b), the FLSA enforcement provision incorporated by reference into the ADEA. 88 Stat. 61. Section 216(b) now permits an individual to bring a civil action "against any employer (including a public agency) in any Federal or State court of competent jurisdiction." Section 203(x) defines "[p]ublic agency" to include "the Government of a State or political subdivision thereof," and "any agency of . . . a State, or a political subdivision of a State." Finally, in the 1974 Act, 4 KIMEL v. FLORIDA BD. OF REGENTS Opinion of the Court Congress added a provision prohibiting age discrimination generally in employment at the Federal Government. 88 Stat. 74, 29 U. S. C. §633a (1994 ed. and Supp. III). Under the current ADEA, mandatory age limits for law en- forcement officers and firefighters- at federal, state, and local levels- are exempted from the statute's coverage. 5 U. S. C. §§3307(d), (e); 29 U. S. C. §623(j) (1994 ed., Supp. III). B In December 1994, Roderick MacPherson and Marvin Narz, ages 57 and 58 at the time, filed suit under the ADEA against their employer, the University of Mon- tevallo, in the United States District Court for the North- ern District of Alabama. In their complaint, they alleged that the university had discriminated against them on the basis of their age, that it had retaliated against them for filing discrimination charges with the Equal Employment Opportunity Commission (EEOC), and that its College of Business, at which they were associate professors, e m- ployed an evaluation system that had a disparate impact on older faculty members. MacPherson and Narz sought declaratory and injunctive relief, backpay, promotions to full professor, and compensatory and punitive damages. App. 21­25. The University of Montevallo moved to di s- miss the suit for lack of subject matter jurisdiction, con- tending it was barred by the Eleventh Amendment. No party disputes the District Court's holding that the Uni- versity is an instrumentality of the State of Alabama. On September 9, 1996, the District Court granted the Univer- sity's motion. MacPherson v. University of Montevallo, Civ. Action No. 94­AR­2962­S (ND Ala., Sept. 9, 1996), App. to Pet. for Cert. in No. 98­796, pp. 63a­71a. The court determined that, although the ADEA contains a clear statement of Congress' intent to abrogate the States' Eleventh Amendment immunity, Congress did not enact Cite as: 528 U. S. ____ (2000) 5 Opinion of the Court or extend the ADEA under its Fourteenth Amendment §5 enforcement power. Id., at 67a, 69a­70a. The District Court therefore held that the ADEA did not abrogate the States' Eleventh Amendment immunity. Id., at 71a. In April 1995, a group of current and former faculty and librarians of Florida State University, including J. Daniel Kimel, Jr., the named petitioner in one of today's cases, filed suit against the Florida Board of Regents in the United States District Court for the Northern District of Florida. Complaint and Demand for Jury Trial in No. 95­ CV­40194, 1 Record, Doc. No. 2. The complaint was sub- sequently amended to add as plaintiffs current and former faculty and librarians of Florida International University. App. 41. The plaintiffs, 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 market adjustments to the salaries of eligible un i- versity employees. The plaintiffs contended that the failure to allocate the funds violated 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 disparate 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 permanent salary adjustments as relief. Id., at 46. The Florida Board of Regents moved to dismiss the suit on the grounds of Eleventh Amendment immunity. On May 17, 1996, the District Court denied the motion, holding that Congress expressed its intent to abrogate the States' Eleventh Amendment immunity in the ADEA, and that the ADEA is a proper exercise of congressional authority under the Fourteenth Amendment. No. TCA 95­40194­ MMP (ND Fla., May 17, 1996), App. to Pet. for Cert. in No. 98­796, pp. 57a­62a. In May 1996, Wellington Dickson filed suit against his employer, the Florida Department of Corrections, in the 6 KIMEL v. FLORIDA BD. OF REGENTS Opinion of the Court United States District Court for the Northern District of Florida. Dickson alleged that the state employer failed to promote him because of his age and because he had filed grievances with respect to the alleged acts of age discrim i- nation. Dickson sought injunctive relief, backpay, and compensatory and punitive damages. App. 83­109. The Florida Department of Corrections moved to dismiss the suit on the grounds that it was barred by the Eleventh Amendment. The District Court denied that motion on November 5, 1996, holding that Congress unequivocally expressed its intent to abrogate the States' Eleventh Amendment immunity in the ADEA, and that Congress had authority to do so under §5 of the Fourteenth Amend- ment. Dickson v. Florida Dept. of Corrections, No. 5:9cv207­RH (ND Fla., Nov. 5, 1996), App. to Pet. for Cert. in No. 98­796, pp. 72a­76a. The plaintiffs in the MacPherson case, and the state defendants in the Kimel and Dickson cases, appealed to the Court of Appeals for the Eleventh Circuit. The United States also intervened in all three cases to defend the ADEA's abrogation of the States' Eleventh Amendment immunity. The Court of Appeals consolidated the appeals and, in a divided panel opinion, held that the ADEA does not abrogate the States' Eleventh Amendment immunity. 139 F. 3d 1426, 1433 (1998). Judge Edmondson, although stating that he believed "good reason exists to doubt that 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 unmistakably clear language evidencing Congress' intent to abrogate the States' sovereign immunity. Ibid. He noted that the ADEA lacks any reference to the Eleventh Amendment 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., at 1430­1431. Judge Cox concurred in Judge Edmondson's ultimate conclusion that Cite as: 528 U. S. ____ (2000) 7 Opinion of the Court the States are immune from ADEA suits brought by indi- viduals in federal court. Id., at 1444. Judge Cox, however, chose not to address "the thorny issue of Congress's i n- tent," id., at 1445, but instead found that Congress lacks the power under §5 of the Fourteenth Amendment to abrogate the States' Eleventh Amendment immunity under the ADEA. Ibid. He concluded that "the ADEA confers rights far more extensive than those the Fou r- teenth Amendment provides," id., at 1446, and that "Con- gress did not enact the ADEA as a proportional response to any widespread violation of the elderly's constitutional rights." Id., at 1447. Chief Judge Hatchett dissented from both grounds. Id., at 1434. We granted certiorari, 525 U. S. 1121 (1999), to resolve a conflict among the Federal Courts of Appeals on the question whether the ADEA validly abrogates the States' Eleventh Amendment immunity. Compare Cooper v. New York State Office of Mental Health, 162 F. 3d 770 (CA2 1998) (holding that the ADEA does validly abrogate the States' Eleventh Amendment immunity), cert. pending, No. 98­1524; Migneault v. Peck, 158 F. 3d 1131 (CA10 1998) (same), cert. pending, No. 98­1178; Coger v. Board of Regents of the State of Tenn., 154 F. 3d 296 (CA6 1998) (same), cert. pending, No. 98­821; Keeton v. University of Nev. System, 150 F. 3d 1055 (CA9 1998) (same); Scott v. University of Miss., 148 F. 3d 493 (CA5 1998) (same); and Goshtasby v. Board of Trustees of the Univ. of Ill., 141 F. 3d 761 (CA7 1998) (same), with Humenansky v. Regents of Univ. of Minn., 152 F. 3d 822 (CA8 1998) (holding that the ADEA does not validly abrogate the States' Eleventh Amendment immunity), cert. pending, No. 98­1235; and 139 F. 3d 1426 (CA11 1998) (case below). II The Eleventh Amendment states: "The Judicial power of the United States shall not 8 KIMEL v. FLORIDA BD. OF REGENTS Opinion of the Court be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." Although today's cases concern suits brought by citizens against their own States, this Court has long " `understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition . . . which it confirms.' " Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 54 (1996) (quoting Blatchford v. Native Village of Noatak, 501 U. S. 775, 779 (1991)). Accordingly, for over a century now, we have made clear that the Constitution does not provide for federal jurisdiction over suits against nonconsenting States. College Savings Bank v. Florida Prepaid Post- secondary Ed. Expense Bd., 527 U. S. ____, ____ (1999) (slip op., at 2­3); Seminole Tribe, supra, at 54; see Hans v. Louisiana, 134 U. S. 1, 15 (1890). Petitioners nevertheless contend that the States of Alabama and Florida must defend the present suits on the merits because Congress abrogated their Eleventh Amendment immunity in the ADEA. To determine whether petitioners are correct, we must resolve two predicate questions: first, whether Con- gress unequivocally expressed its intent to abrogate that immunity; and second, if it did, whether Congress acted pursuant to a valid grant of constitutional authority. Seminole Tribe, supra, at 55. III To determine whether a federal statute properly su b- jects States to suits by individuals, we apply a "simple but stringent test: `Congress may abrogate the States' consti- tutionally secured immunity from suit in federal court only by making its intention unmistakably clear in the language of the statute.' " Dellmuth v. Muth, 491 U. S. 223, 228 (1989) (quoting Atascadero State Hospital v. Scanlon, 473 U. S. 234, 242 (1985)). We agree with petitioners that Cite as: 528 U. S. ____ (2000) 9 Opinion of the Court the ADEA satisfies that test. The ADEA states that its provisions "shall be enforced in accordance with the po w- ers, remedies, and procedures provided in sections 211(b), 216 (except for subsection (a) thereof), and 217 of this title, and subsection (c) of this section." 29 U. S. C. §626(b). Section 216(b), in turn, clearly provides for suits by ind i- viduals against States. That provision authorizes emplo y- ees to maintain actions for backpay "against any employer (including a public agency) in any Federal or State court of competent jurisdiction . . . ." Any doubt concerning the identity of the "public agency" defendant named in §216(b) is dispelled by looking to §203(x), which defines the term to include "the government of a State or political subdiv i- sion thereof," and "any agency of . . . a State, or a political subdivision of a State." Read as a whole, the plain la n- guage of these provisions clearly demonstrates Congress' intent to subject the States to suit for money damages at the hands of individual employees. Respondents maintain that these statutory sections are less than "unmistakably clear" for two reasons. Brief for Respondents 15. First, they note that the ADEA already contains its own enforcement provision, §626(c)(1), which provides in relevant part that "[a]ny 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 this chapter." Respondents claim that the existence of §626(c)(1) renders Congress' intent to incorp o- rate the clear statement of abrogation in §216(b), the FLSA's enforcement provision, ambiguous. The text of the ADEA forecloses respondents' argument. Section 626(b) clearly states that the ADEA "shall be enforced in acco r- dance with the powers, remedies, and procedures provided in [section 216(b)] and subsection (c) of this section." §626(b) (emphasis added). In accord with that statutory language, we have explained repeatedly that §626(b) in- corporates the FLSA's enforcement provisions, and that 10 KIMEL v. FLORIDA BD. OF REGENTS Opinion of the Court those remedial options operate together with §626(c)(1). See McKennon v. Nashville Banner Publishing Co., 513 U. S. 352, 357 (1995) ("[The ADEA's] remedial provisions incorporate by reference the provisions of the Fair Labor Standards Act of 1938"); Hoffman-La Roche Inc. v. Sperling, 493 U. S. 165, 167 (1989) ("[T]he ADEA incorporates e n- forcement provisions of the Fair Labor Standards Act of 1938, and provides that the ADEA shall be enforced using certain of the powers, remedies, and procedures of the FLSA" (citation omitted)); Lorillard v. Pons, 434 U. S. 575, 582 (1978) ("[B]ut for those changes Congress expressly made [in the ADEA], it intended to incorporate fully the remedies and procedures of the FLSA"). Respondents' argument attempts to create ambiguity where, according to the statute's text and this Court's repeated interpretations thereof, there is none. Respondents next point to the phrase "court of compe- tent jurisdiction" in §216(b), and contend that it makes Congress' intent to abrogate less than clear. Relying on our decision in the distinct context of a state waiver of sovereign immunity, Kennecott Copper Corp. v. State Tax Comm'n, 327 U. S. 573 (1946), respondents maintain that perhaps Congress simply intended to permit an ADEA suit against a State only in those cases where the State previously has waived its Eleventh Amendment immunity to suit. We disagree. Our decision in Kennecott Copper must 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 au- thorized taxpayers to pay their taxes under protest and " `thereafter bring an action in any court of competent jurisdiction for the return thereof . . . .' " Id., at 575, n. 1 (quoting Utah Code Ann. §80­5­76 (1943)). Although the statute undoubtedly provided for suit against the State of Utah in its own courts, we held that the statute fell short of the required "clear declaration by a State of its consent Cite as: 528 U. S. ____ (2000) 11 Opinion of the Court to be sued in the federal courts." 327 U. S., at 579­580 (emphasis added). Section 216(b) contains no such amb i- guity. The statute authorizes employee suits against States "in any Federal or State court of competent jurisdic- tion." §216(b) (emphasis added). That language elim i- nates the ambiguity identified in Kennecott Copper- whether Utah intended to permit suits against the sov- ereign in state court only, or in state and federal court. Under §216(b), the answer to that question is clear- actions may be maintained in federal and state court. That choice of language sufficiently indicates Congress' intent, in the ADEA, to abrogate the States' Eleventh Amendment immunity to suits by individuals. Although JUSTICE THOMAS concedes in his opinion that our cases have never required that Congress make its clear statement in a single section or in statutory prov i- sions enacted at the same time, post, at 7, he concludes that the ADEA lacks the requisite clarity because of the "sequence of events" surrounding the enactment and amendment of §§216(b) and 626(b), post, at 4. JUSTICE THOMAS states that he is unwilling to assume that when Congress amended §216(b) in 1974, it recognized the consequences that amendment would have for the ADEA. Post, at 5. We respectfully disagree. The fact that Co n- gress amended the ADEA itself in the same 1974 Act makes it more than clear that Congress understood the consequences of its actions. Indeed, Congress amended §216(b) to provide for suits against States in precisely the same Act in which it extended the ADEA's substantive requirements to the States. See 1974 Act, §6(d)(1), 88 Stat. 61 (amending §216(b)); §28(a), 88 Stat. 74 (extending ADEA to the States). Those provisions confirm for us that the effect on the ADEA of the §216(b) amendment was not mere happenstance. In any event, we have never held that Congress must speak with different gradations of clarity depending on the specific circumstances of the 12 KIMEL v. FLORIDA BD. OF REGENTS Opinion of the Court relevant legislation (e.g., amending incorporated provi- sions as opposed to enacting a statute for the first time). The clear statement inquiry focuses on what Congress did enact, not when it did so. We will not infer ambiguity from the sequence in which a clear textual statement is added to a statute. We also disagree with JUSTICE THOMAS' remaining points, see post, at 7­12. Although the ADEA does contain its own enforcement provision in §626(c)(1), the text of §626(b) acknowledges §626(c)(1)'s existence and makes clear that the ADEA also incorporates §216(b), save as indicated otherwise in §626(b)'s proviso. See §626(b) ("The provisions of this chapter shall be enforced in accordance with the powers, remedies, and procedures provided in sectio[n] . . . 216 (except for subsection (a) thereof) . . . and subsection (c) of this section" (emphasis added)). We fail to see how the interpretation 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, at 9, could be a permissible one. To accept that interpretation, for example, one would have to conclude that Congress intended to incorporate only the portion of §216(b)'s third sentence that provides for collective a c- tions, 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 maintained against any employer (i n- cluding a public agency) 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 emplo y- ees similarly situated"). JUSTICE THOMAS also concludes that §216(b) itself fails the clear statement test. Post, at 10­12. As we have already explained, the presence of the word "competent" in §216(b) does not render that provision less than "unmi s- Cite as: 528 U. S. ____ (2000) 13 Opinion of the Court takably clear." See supra, at 10­11. JUSTICE THOMAS' reliance on a single phrase from our decision in Employees of Dept. of Public Health and Welfare of Mo. v. Department of Public Health and Welfare of Mo., 411 U. S. 279 (1973), see post, at 11, as support for the contrary proposition is puzzling, given his separate argument with respect to §6(d)(2)(A) of the 1974 Act. Crucial to JUSTICE THOMAS' argument on that front is his acknowledgement that Con- gress did intend in the 1974 amendments to permit "FLSA plaintiffs who had been frustrated by state defendants' invocation of Eleventh Amendment immunity under Em- ployees to avail themselves of the newly amended §216(b)." Post, at 5; see also post, at 11­12. We agree with the implication of that statement: In response to Employees, Congress clearly intended through "the newly amended §216(b)" to abrogate the States' sovereign immunity. In light of our conclusion that Congress unequivocally e x- pressed its intent to abrogate the States' Eleventh Amendment immunity, we now must determine whether Congress effectuated that abrogation pursuant to a valid exercise of constitutional authority. IV A This is not the first time we have considered the con- stitutional validity of the 1974 extension of the ADEA to state and local governments. In EEOC v. Wyoming, 460 U. S. 226, 243 (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 that the Act did not transgress any external restraints imposed on the commerce power by the Tenth Amendment. Because we found the ADEA valid under Congress' Commerce Clause power, we concluded that it was unnecessary to determine whether the Act also could be supported by Congress' power under §5 of the Fourteenth Amendment. 14 KIMEL v. FLORIDA BD. OF REGENTS Opinion of the Court Wyoming, 460 U. S., at 243. But see id., at 259­263 (Bur- ger, C. J., dissenting). Resolution of today's cases requires us to decide that question. In Seminole Tribe, we held that Congress lacks power under Article I to abrogate the States' sovereign immu- nity. 517 U. S., at 72­73. "Even when the Constitution vests in Congress complete lawmaking authority over a particular area, the Eleventh Amendment prevents con- gressional authorization of suits by private parties against unconsenting States." Id., at 72. Last Term, in a series of three decisions, we reaffirmed that central holding of Seminole Tribe. See College Savings Bank, 527 U. S., at ____ (slip op., at 4); Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U. S. ____, ____ (1999) (slip op., at 6­7); Alden v. Maine, 527 U. S. ____, ____ (1999) (slip op., at 1­2). Indeed, in College Savings Bank, we rested our decision to overrule the constructive waiver rule of Parden v. Terminal R. Co. of Ala. Docks Dept., 377 U. S. 184 (1964), in part, on our Seminole Tribe holding. See College Savings Bank, supra, at ____ (slip op., at 16) ("Recognizing a congressional power to exact co n- structive waivers of sovereign immunity through the exer- cise of Article I powers would also, as a practical matter, permit Congress to circumvent the antiabrogation holding of Seminole Tribe"). Under our firmly established precedent then, if the ADEA rests solely on Congress' Article I com- merce power, the private petitioners in today's cases cannot maintain their suits against their state employers. JUSTICE STEVENS disputes that well-established prece- dent again. Compare post, at 1­7, with Alden, supra, at ____ (slip op., at 1­58) (SOUTER, J., dissenting); College Savings Bank, 527 U. S., at ____ (slip op., at 2, n. 2) (STEVENS, J., dissenting); id., at ____ (slip op., at 7­13) (BREYER, J., dissenting); Florida Prepaid, supra, at ____ (slip op., at 18­19) (STEVENS, J., dissenting); Seminole Tribe, 517 U. S., at 76­100 (STEVENS, J., dissenting); id., at Cite as: 528 U. S. ____ (2000) 15 Opinion of the Court 100­185 (SOUTER, J., dissenting). In Alden, we explained that, "[a]lthough the sovereign immunity of the States derives at least in part from the common-law tradition, the structure and history of the Constitution make clear that the immunity exists today by constitutional design." 527 U. S., at ____ (slip op., at 23­24). For purposes of today's decision, it is sufficient to note that we have on more than one occasion explained the substantial reasons for adhering to that constitutional design. See id., at ____ (slip op., at 2­ 45); College Savings Bank, supra, at ____ (slip op., at 1­2, 20­24); Seminole Tribe, supra, at 54­55, 59­73; Pennsylva- nia v. Union Gas Co., 491 U. S. 1, 30­42 (1989) (SCALIA, J., concurring in part and dissenting in part). Indeed, the present dissenters' refusal to accept the validity and natural 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 Constitution. Compare Hans, 134 U. S., at 10, 14­16, with post, at 5­6. Today we adhere to our holding in Semi- nole Tribe: Congress' powers under Article I of the Constitu- tion do not include the power to subject States to suit at the hands of private individuals. Section 5 of the Fourteenth Amendment, however, does grant Congress the authority to abrogate the States' sov- ereign immunity. In Fitzpatrick v. Bitzer, 427 U. S. 445 (1976), we recognized that "the Eleventh Amendment, and the principle of state sovereignty which it embodies, are necessarily limited by the enforcement provisions of §5 of the Fourteenth Amendment." Id., at 456 (citation omit- ted). Since our decision in Fitzpatrick, we have reaffirmed the validity of that congressional power on numerous occasions. See, e.g., College Savings Bank, supra, at ____ (slip op., at 2); Florida Prepaid, supra, at ____ (slip op., at 7­8); Alden, supra, at ____ (slip op., at 46­48); Seminole Tribe, supra, at 59. Accordingly, the private petitioners in these cases may maintain their ADEA suits against the 16 KIMEL v. FLORIDA BD. OF REGENTS Opinion of the Court States of Alabama and Florida if, and only if, the ADEA is appropriate legislation under §5. B The Fourteenth Amendment provides, in relevant part: "Section 1. . . . No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, 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 en- force, by appropriate legislation, the provisions of this article." As we recognized most recently in City of Boerne v. Flores, 521 U. S. 507, 517 (1997), §5 is an affirmative grant of power to Congress. "It is for Congress in the first instance to `determin[e] whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment,' and its conclusions are entitled to much deference." Id., at 536 (quoting Katzenbach v. Morgan, 384 U. S. 641, 651 (1966)). Congress' §5 power is not confined to the enactment of legislation that merely parrots the precise wording of the Fourteenth Amendment. Rather, Congress' power "to en- force" the Amendment includes the authority both to remedy and to deter violation of rights guaranteed ther e- under by prohibiting a somewhat broader swath of co n- duct, including that which is not itself forbidden by the Amendment's text. 521 U. S., at 518. Nevertheless, we have also recognized that the same language that serves as the basis for the affirmative grant of congressional power also serves to limit that power. For example, Congress cannot "decree the substance of the Fourteenth Amendment's restrictions on the States. . . . It Cite as: 528 U. S. ____ (2000) 17 Opinion of the Court has been given the power `to enforce,' not the power to determine what constitutes a constitutional violation." Id., at 519 (emphases added). The ultimate interpretation and determination of the Fourteenth Amendment's substan- tive meaning remains the province of the Judicial Branch. Id., at 536. In City of Boerne, we noted that the determi- nation whether purportedly prophylactic legislation co n- stitutes appropriate remedial legislation, or instead effects a substantive redefinition of the Fourteenth Amendment right at issue, is often difficult. Id., at 519­520. The line between the two is a fine one. Accordingly, recognizing that "Congress must have wide latitude in determining where [that line] lies," we held that "[t]here must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end." Id., at 520. In City of Boerne, we applied that "congruence and proportionality" test and held that the Religious Freedom Restoration Act of 1993 (RFRA) was not appropriate le g- islation under §5. We first noted that the legislative record contained very little evidence of the unconstit u- tional conduct purportedly targeted by RFRA's substan- tive provisions. Rather, Congress had uncovered only "anecdotal evidence" that, standing alone, did not reveal a "widespread pattern of religious discrimination in this country." Id., at 531. Second, we found that RFRA is "so out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to, or de- signed to prevent, unconstitutional behavior." Id., at 532. Last Term, we again had occasion to apply the "congr u- ence and proportionality" test. In Florida Prepaid, we considered the validity of the Eleventh Amendment abr o- gation provision in the Patent and Plant Variety Prote c- tion Remedy Clarification Act (Patent Remedy Act). We held that the statute, which subjected States to patent infringement suits, was not appropriate legislation under 18 KIMEL v. FLORIDA BD. OF REGENTS Opinion of the Court §5 of the Fourteenth Amendment. The Patent Remedy Act failed to meet our congruence and proportionality test first because "Congress identified no pattern of patent infringement by the States, let alone a pattern of constitu- tional violations." 527 U. S., at ____ (slip op., at 11) (em- phasis added). Moreover, because it was unlikely that many of the acts of patent infringement affected by the statute had any likelihood of being unconstitutional, we concluded that the scope of the Act was out of proportion to its supposed remedial or preventive objectives. Id., at ____ (slip op., at 18­19). Instead, "[t]he statute's apparent and more basic aims were to provide a uniform remedy for patent infringement and to place States on the same footing as private parties under that regime." Id., at ____ (slip op., at 19). While we acknowledged that such aims may be proper congressional concerns under Article I, we found them insufficient to support an abrogation of the States' Eleventh Amendment immunity after Seminole Tribe. Florida Prepaid, supra, at ____ (slip op., at 19­20). C Applying the same "congruence and proportionality" test in these cases, we conclude that the ADEA is not "appr o- priate legislation" under §5 of the Fourteenth Amen d- ment. Initially, the substantive requirements the ADEA imposes on state and local governments are disproportio n- ate to any unconstitutional conduct that conceivably could be targeted by the Act. We have considered claims of unconstitutional age discrimination under the Equal Protection Clause three times. See Gregory v. Ashcroft, 501 U. S. 452 (1991); Vance v. Bradley, 440 U. S. 93 (1979); Massachusetts Bd. of Retirement v. Murgia, 427 U. S. 307 (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; Bradley, supra, at 102­103, n. 20, 108­112; Murgia, su- Cite as: 528 U. S. ____ (2000) 19 Opinion of the Court pra, at 317. Age classifications, unlike governmental conduct based on race or gender, cannot be characterized as "so seldom relevant to the achievement of any legit i- mate state interest that laws grounded in such consider a- tions are deemed to reflect prejudice and antipathy." Cleburne v.