Out the Window--Prospects for the EPA and FMLA after Kimel v. Florida Board of Regents

This note considers how the heightened scrutiny standard that the Court has used in gender cases under the Fourteenth Amendment will impact the congruence and proportionality test that the Court has applied in a recent series of cases examining congressional power under Section 5 of the Fourteenth Amendment. The purpose of this note is twofold First it closely analyzes Kimel v. Florida Board of Regents, the Court's most recent decision concerning Section 5 and argues that the Court's analysis in Kimel indicates that a statute that involves heightened scrutiny has a much greater possibility of meeting the standards the Court has developed under the test. Second, it examines the Equal Pay Act (EPA) as a clear-cut example of a statute that should pass the test because of heightened scrutiny. Finally, this note argues that, despite its facial neutrality, the Family and Medical Leave Act (FMLA) also implicates heightened scrutiny and should therefore pass the test as well. This note explains both wey heightened scrutiny applies to the FMLA and the reasons the FMLA should be considered a valid exercise of the Section 5 power.