It was based on a congressional finding that sex-based wage differentials have a substantial adverse impact on interstate commerce, and it accordingly required that all persons performing equal work must receive equal pay, unless the differential is justified by a consideration other than sex. As with many civil rights statutes, the Equal Pay Act initially applied only to private employers, see Marshall v. Owensboro-Daviess County Hosp., 581 F.2d 116, 117 (6th Cir. 1978). In 1974, however, Congress extended the Act to the States.

Courts found that this act, passed to remedy discrimination in the workplace, could be seen as legislation to enforce the Fourteenth Amendment. Marshall v. Owensboro-Daviess County Hosp., 581 F.2d 116, 119-20 (6th Cir. 1978) (Equal Pay Act); Marshall v. City of Sheboygan, 577 F.2d 1 (7th Cir. 1978) (Equal Pay Act); Usery v. Charleston County Sch. Dist., 558 F.2d 1169 (4th Cir. 1977) (Equal Pay Act); Usery v. Allegheny County Inst. Dist., 544 F.2d 148 (3d Cir. 1976) (Equal Pay Act), cert. denied, 430 U.S. 946 (1977). The question whether the original core of the FLSA might be an enactment to enforce the Fourteenth Amendment has not been answered.

In light of these qualifications, National League of Cities has been interpreted as an attempt to limit the commerce power rather than all the powers delegated to Congress. See, e.g., City of Lafayette v. Louisiana Power Light Co., 435 U.S. 389, 423, 98 S.Ct. 1123, 1142, 55 L.Ed.2d 364 (1978) (Burger, C. J., concurring); Marshall v. Owensboro-Daviess County Hospital, 581 F.2d 116, 119 (6th Cir. 1978); United States v. City of Chicago, 573 F.2d 416, 424 (7th Cir. 1978); Arritt v. Grisell, 567 F.2d 1267, 1270 (4th Cir. 1977). However, since the Court left unanswered the effect of the tenth amendment on the exercise of Congress's war power, we must examine this issue.

The Keene court's analysis of the legislative history of the FLSA's public agency provision is in accord with prior decisions of the United States Supreme Court, as well as the decisions of this Court. See, e.g., Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985); Marshall v. Owensboro-Daviess County Hosp., 581 F.2d 116 (6th Cir. 1978). We therefore conclude that the FMLA's individual liability provision does not extend to public agencies.

While the original EPA only targeted such discrimination in private industry, it expanded the EPA against the states in 1974. See Marshall v. Owensboro-Davies County Hosp., 581 F.2d 116 (6th Cir. 1978). But the type of discrimination Congress was attempting to root out was the same: intentional discrimination.

. . . [W]e are concerned with the actual powers of the national government." Marshall v. Owensboro-Daviess County Hosp., 581 F.2d 116, 120 (6th Cir. 1978) (citation and quotation omitted); see also Usery v. Charleston County Sch. Dist., 558 F.2d 1169, 1171 (4th Cir. 1977) ("Our duty in passing on the constitutionality of legislation is to determine whether Congress had the authority to adopt legislation, not whether it correctly guessed the source of that power."). Other circuits which have addressed the argument presented by the University have uniformly concluded that Seminole Tribe did not change the standard for determining whether legislation was enacted pursuant to Congress's Section 5 power.

Id. Similarly, the Sixth Circuit recently reaffirmed an earlier decision that the Equal Pay Act was enacted pursuant to Section 5. Timmer v. Michigan Dep't of Commerce, 104 F.3d 833, 838-839 (6th Cir. 1997) (citing Marshall v. Owensboro-Daviess County Hosp., 581 F.2d 116, 119 (6th Cir. 1978)). The court recognized that Congress made no explicit statement of the constitutional basis for its legislation, but held that "[i]t was not necessary for Congress to expressly rely on § 5 in exercising its power because such power clearly existed."

See Marshall v. City of Sheboygan, 577 F.2d 1 (7th Cir. 1978) (1974 extension of the Equal Pay Act to the States and their political subdivisions in a sex discrimination case is a valid exercise of Congress' power under the Commerce Clause); Pearce v. Wichita Cty., City of Wichita Falls, etc., 590 F.2d 128 (5th Cir. 1979). See also Marshall v. Owensboro-Daviess County Hospital, 581 F.2d 116 (6th Cir. 1978) (Amendments to Fair Labor Standards Act extending Equal Pay Act protection to employees of States and their political subdivisions is a constitutional exercise of Congress' power under section five of the Fourteenth Amendment); Usery v. Charleston County School District, 558 F.2d 1169 (4th Cir. 1977); Usery v. Allegheny County Institution Dist., 544 F.2d 148 (3rd Cir. 1976), cert. denied, 430 U.S. 946, 97 S.Ct. 1582, 51 L.Ed.2d 793 (1977). In addition, the Supreme Court has recently overruled its decision in National League of Cities v. Usery. Garcia v. San Antonio Metropolitan Transit Authority, ___ U.S. ___, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985).

The federal courts have unanimously upheld the EPA, with the majority of courts finding the EPA was passed pursuant to the Fourteenth Amendment and thus was not subject to Tenth Amendment attack. See Marshall v. Owensboro — Daviess County Hospital, 581 F.2d 116 (6th Cir. 1978); Usery v. Charleston County School District, 558 F.2d 1169 (4th Cir. 1977); Usery v. Allegheny County Institution District, 544 F.2d 148 (3d Cir. 1976), cert. denied, 430 U.S. 946, 97 S.Ct. 1582, 51 L.Ed.2d 793 (1977). This court and others have upheld the EPA even if it is viewed as an exercise of Commerce Clause authority.

We do note, however, that the Courts of Appeals that have reached the constitutional question have considered National League of Cities to have decided only the limited issue raised by the extension of overtime and minimum wage standards to state governments. The trend has been to uphold the 1974 amendments as a legitimate exercise of congressional power, either under Section 5 of the Fourteenth Amendment ( see Marshall v. Owensboro-Daviess Cty. Hosp., 581 F.2d 116, 119-20 (6th Cir. 1978); Usery v. Charleston Cty. School Dist., 558 F.2d 1169, 1170-72 (4th Cir. 1977); Usery v. Allegheny Cty. Inst. Dist., 544 F.2d 148, 155-56 (3d Cir. 1976), cert. denied, 430 U.S. 946, 97 S.Ct. 1582, 51 L.Ed.2d 793 (1977)), or under the commerce clause ( see Pearce v. Wichita Cty., City of Wichita Falls, Texas, Hosp. Bd., 590 F.2d 128, 132 (5th Cir. 1979); Marshall v. City of Sheboygan, 577 F.2d 1, 6 (7th Cir. 1978)). * * * * * *