Catholic School Board, 430 F. Supp. 188 (D.N.H.1977).
However, this conclusion does not preclude Congress' use of Section 5 as a separate and independent source of authority as well. Regrettably, the legislative history does not reveal a clear address to the issue, but speeches in both houses referred to justifying the proposed proscription against age discrimination in employment on bases similar to ones supporting the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. See 113 Cong.Rec. 34742 (December 4, 1967) and 113 Cong.Rec. 31255 (November 6, 1967). Resemblances between these two acts have prompted courts to interpret one act by resort to the other for clarification and assistance, Smithers v. Bailar, 629 F.2d 892 (3d Cir. 1980), Davis v. Calgon Corp., 627 F.2d 674 (3d Cir. 1980), Ricks v. Delaware State College, 605 F.2d 710 (3d Cir. 1979) cert. granted, 449 U.S. 250, 101 S. Ct. 498, 66 L. Ed. 2d 431 (1980), Rodriguez v. Taylor, 569 F.2d 1231 (3d Cir. 1977), particularly in light of the acts' common interdiction of employment criteria based on age, race, color, religion and national origin. Compare 29 U.S.C. § 621(b) ("the purpose of this chapter (is) to prohibit age discrimination in employment") with 42 U.S.C. § 2000e-2 ("it shall be an unlawful employment practice for an employer ... to hire or to discharge any individual ... because of such individual's race, color, religion, sex or national origin"). See also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), Griggs v. Duke Power Co., 401 U.S. 424, 91 S. Ct. 849, 28 L. Ed. 2d 158 (1971) and compare with Oscar Mayer Co. v. Evans, 441 U.S. 750, 99 S. Ct. 2066, 60 L. Ed. 2d 609 (1979) and Lorillard v. Pons, 434 U.S. 575, 98 S. Ct. 866, 55 L. Ed. 2d 40 (1978). Undoubtedly, Congress exercised its powers under Section 5 of the Fourteenth Amendment in enacting amendments to Title VII. Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S. Ct. 2666, 49 L. Ed. 2d 614 (1976). Similarly, Congress availed itself of the same authority in propounding the ADEA. Arritt v. Grisell, 567 F.2d 1267 (4th Cir. 1977). Accord, Marshall v. Delaware River & Bay Authority, 471 F. Supp. 886 (D.Del.1979), Remmick v. Barnes County, 435 F. Supp. 914 (D.N.Dak.1977), Aaron v. Davis, 424 F. Supp. 1238 (E.D.Ark.1976), Usery v. Board of Education of Salt Lake City, 421 F. Supp. 718 (D.Utah 1976).
Exercise of Congressional authority under Section 5, unlike the Commerce Clause, is not limited by the Tenth Amendment. Usery v. Allegheny County Institutional District, 544 F.2d 148 (3d Cir. 1976). Cf. National League of Cities v. Usery, 426 U.S. 833, 96 S. Ct. 2465, 49 L. Ed. 2d 245 (1976) (certain amendments in 1974 to Fair Labor Standards Act, 29 U.S.C. § 201 et seq., considered an unconstitutional exercise of Congress' power under the Commerce Clause because it impinged on states' freedom to implement their own governmental functions in violation of the Tenth Amendment). In contrast, in Section 5
Congress is expressly granted authority to enforce "by appropriate legislation" the substantive provisions of the Fourteenth Amendment, which themselves embody significant limitations on state authority. When Congress acts pursuant to § 5, not only is it exercising legislative authority that is plenary within the terms of the constitutional grant, it is exercising that authority under one section of a constitutional amendment whose other sections by their own terms embody limitations on state authority .... Congress may, in determining what is "appropriate legislation" for the purposes of enforcing the provisions of the Fourteenth Amendment provide for private suits against States or state officials which are constitutionally impermissible in other contexts.