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Sovereign immunity bars suits by individuals against states under FMLA’s self-care provision, U.S. Supreme Court rules

March 21st, 2012  |  Cynthia L. Hackerott

States cannot be sued by individuals for money damages for violations of the FMLA’s “self-care” provision, a sharply divided U.S. Supreme Court plurality has ruled (Coleman v Maryland Court of Appeals, Dkt No 11-1754, March 20, 2012 (95 EPD ¶44,452)). The plurality, consisting of Chief Justice Roberts and Justices Kennedy, Thomas and Alito, affirmed a Fourth Circuit ruling, holding that Congress did not validly abrogate the states’ Eleventh Amendment immunity when it passed the self-care leave provision of the Act. Justice Thomas filed a concurring opinion; Justice Scalia filed an opinion concurring in the judgment. Justice Ginsburg filed a dissenting opinion, in which Justices Breyer, Sotomayor and Kagan joined with the exception of a footnote.

Background. The FMLA (at 29 U.S.C. Section 2612(a)(1)) entitles an employ­ee to take up to 12 work weeks of unpaid leave per year for (A) the care of a newborn son or daughter; (B) the adoption or foster-care placement of a child; (C) the care of a spouse, son, daughter, or par­ent with a serious medical condition; and (D) the employee’s own se­rious health condition when the condition interferes with the employ­ee’s ability to perform at work. The statute also creates a private right of action for equitable relief and damages against any employer. In 2003, in Nevada Dept of Human Resources v Hibbs (84 EPD ¶41,391), the Supreme Court ruled that Congress validly abrogated state sovereign immunity from claims under the FMLA’s family care provision in subparagraph (C). Citing the gender-related nature of caregiving responsibilities, the Court in Hibbs noted that Congress enacted the statute partly in response to a record among the states of gender-based discrimination in the administration of state leave policies. However, since Hibbs was decided, each of the five circuits to consider the issue — the Fourth, Fifth, Sixth, Seventh, and Tenth Circuits — has concluded that Congress did not validly abrogate sovereign immunity as to the FMLA’s self-care provision (subparagraph (D)).

In this case, an employee of the Maryland court system, asked for medical leave under the FMLA’s self-care provision, after being prescribed bed rest for a medical condition. The day after making his request, he was informed that he would be terminated if he did not resign. The U.S. District Court for the District of Maryland dismissed the suit on sovereign immunity grounds. The Fourth Circuit af­firmed, holding that unlike the family-care provision in Hibbs, the self-care provision was not directed at an identified pattern of gen­der-based discrimination and was not congruent and proportional to any pattern of sex-based discrimination on the part of the states.

Congruence and proportionality standard. Citing several of its precedents, the plurality opinion explained that, under the federal system, states, as sovereigns, are immune from damages suits, unless they waive that defense. Congress may also ab­rogate the states’ immunity pursuant to its powers under Section 5 of the Fourteenth Amendment, but it must make that intention unmistak­ably clear in the language of the statute. Congress did so in the FMLA, the plurality noted. Congress also must tailor legislation enacted un­der Section 5 to remedy or prevent conduct transgressing the Fourteenth Amendment’s substantive provisions and there must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end (see City of Boerne v Flores (1997) (70 EPD ¶44,785)). 

Under this standard, Hibbs permitted employees to re­cover damages from states for violations of subparagraph (C). In enacting the FMLA, Congress relied upon evidence of a well-documented pattern of sex-based discrimination in family-leave policies. States had facially discriminatory leave policies that granted longer periods of leave to wom­en than to men. States also admin­istered facially neutral family-leave policies in gender biased ways. These practices reflected what Congress found to be a pervasive sex-role stereotype that caring for family members is “women’s work.”  Faced with “the States’ record of unconstitutional participation in, and fostering of, gender­ based discrimination in the administration of leave bene­fits,” Hibbs concluded that requiring state employers to give all employees the opportunity to take family-care leave was “narrowly targeted at the faultline between work and family—precisely where sex-based overgenerali­zation has been and remains strongest.” The sex-based discrimination that supported allowing subpara­graph (C) suits against the states is absent with respect to the self-care provision, the plurality determined, rejecting each of the employee’s three arguments to the contrary.

First, the employee argued that the self-care provision addresses sex discrimination and sex stereotyping. But the provision, standing alone, is not a valid abrogation of the states’ immunity from suit, the plurality ruled. At the time the FMLA was enacted, there was scant evidence of such discrimination or stereotyping in sick-leave policies. The legislative history of the self-care provision showed that Congress was con­cerned about the economic burdens imposed by illness-related job loss on employees and their families and about discrimination based on illness, not sex. Although the self-care provision offers some women a benefit by allowing them to take leave for pregnancy-related ill­nesses, the provision, as a remedy, is not congruent and proportional to any identified constitutional violations. When the FMLA was en­acted, Congress apparently had no evidence that states were excluding pregnan­cy-related illnesses from their leave policies.

“Without widespread evidence of sex discrimination or sex stereotyping in the administration of sick leave, it is apparent that the congressional purpose in enacting the self-care provision is unrelated to these supposed wrongs,” Justice Kennedy wrote.

Second, the employee asserted that the self-care provision is a neces­sary adjunct to the family-care provision sustained in Hibbs. But his argument — that these two provisions work in tandem to ensure the equal avail­ability of total FMLA leave time to women and men despite their dif­ferent leave-usage patterns ― was unconvincing and did not comply with the requirements of the congruence and proportionality standard, the plurality decided. Also, there were no congres­sional findings of, or evidence on, how the self-care provision is nec­essary to the family-care provisions or how it reduces employer dis­crimination against women. If employers assume women take self-care leave more often than men, a self-care provision would not provide an incentive to hire women. To the contrary, the self-care provision would provide an incentive to discrimi­nate against women, the plurality reasoned.

Third, the employee contended that the self-care provision helps single parents keep their jobs when they get ill. The fact that most single parents happen to be women did not explain how the self-care provision remedies or prevents constitutional violations, the plurality pointed out. Rather, it demonstrated, at most, that the self-care provision was directed at remedying neutral leave re­strictions that have a disparate effect on women. Although disparate impact may be relevant evidence of discrim­ination such evidence is insufficient to prove a constitutional violation even where the Fourteenth Amendment subjects state ac­tion to strict scrutiny, the plurality explained, citing Board of Trustees of Univ of Ala v Garrett (8 ADD ¶8-198).  Accordingly, to the extent that the self-care provision addresses neutral leave policies with a disparate impact on women, it is not directed at a pattern of consti­tutional violations. Thus, as it is unlikely that many of the neutral leave policies affected by the self-care provision are unconstitutional, the scope of the self-care provision is out of proportion to its supposed remedial or preventive objectives.

Finally, the plurality noted that a state could waive immunity, if it saw fit to do so. “If the State agrees with petitioner that damages liability for violations of the self-care provision is neces­sary to combat discrimination against women, the State may waive its immunity or create a parallel state law cause of action,” Justice Kennedy wrote.

Concurrences. Justice Thomas filed a concurring opinion, stating he joined the plurality’s opinion, but also reiterating his view that “Hibbs was wrongly decided because the family-care provision is not sufficiently linked to a demonstrated pattern of unconstitutional discrimination by the States.” He added, “[t]he self-care provision at issue in this case is even further removed from any such pattern.”

Justice Scalia concurred in the judgment, but adhered to his view that the Court should abandon the “congruence and proportionality” standard in favor of one that he believes is properly tied to the text of Section 5, which grants Congress the power “to enforce, by appropriate legislation,” the other provisions of the Four­teenth Amendment. Outside the context of racial discrimination, Congress’s Section 5 power should be limited to the regulation of conduct that itself violates the Fourteenth Amendment, and thus, would not reach a State’s failure to grant self-care leave to its employees, according to Scalia.

Dissent. Justice Ginsburg filed a dissenting opinion, in which Justices Breyer, Sotomayor and Kagan joined with the exception of her first footnote (which stated her view that Congress can abrogate state sovereign immunity pursuant to its Article I Commerce Clause power). Even accepting the plurality’s view of the scope of Con­gress’ power under Section 5 of the Fourteenth Amendment, Ginsburg would hold that the FMLA’s self-care provision validly enforces the right to be free from gender discrimi­nation in the workplace.

The plurality paid scant attention, according to Ginsburg, to the overarching aim of the FMLA — to make it feasible for women to work while sustaining family life. Over the course of eight years, Congress considered the problem of workplace discrimination against women, and devised the FMLA to reduce sex-based inequalities in leave programs. Essen­tial to its design, Congress diligently avoided a legisla­tive package that, overall, was or would be seen as geared to women only. Congress thereby reduced employers’ incentives to prefer men over women, advanced women’s economic opportunities, and laid the foundation for a more egalitarian relationship at home and at work. As a key part of that endeavor, the self-care provision is congruent and propor­tional to the injury to be prevented, and thus, a valid exercise of congressional power under Section 5 of the Fourteenth Amendment, Ginsburg wrote.

She also pointed out that the plurality’s opinion does not authorize state employers to violate the FMLA, although it does block injured employees from suing for monetary relief. Maryland conceded that the self-care provision remains valid Commerce Clause legis­lation, and consequently binds the states, as well as the private sector. An employee wrongly denied self-care leave, Maryland also acknowledged in its brief, may, pursu­ant to Ex parte Young, seek injunc­tive relief against the responsible state official. Moreover, the U. S. Department of Labor may bring an action against a state for violating the self-care provision and may recover monetary relief on an employee’s behalf.