States No Longer Liable for Violations of Self-Care Provision of FMLA
Coleman v. Court of Appeals of Maryland, et al, Slip Opinion (March 20, 2012)
The Family Medical Leave Act (FMLA) permits employees to take twelve weeks of unpaid administrative leave for: (a) the care of a newborn; (b) the adoption of a child; (c) the care of a family member with a serious medical condition; or (d) the employee’s own serious health condition. Sections (a)-(c) are referred to as the “family care” provisions, while section (d) is referred to as the “self care” provision. Previously, States were liable for money damages for violations of all four provisions. In Coleman v. Court of Appeals of Maryland, the U.S. Supreme Court held that States are no longer liable for violations of the “self care” provision (section d); States remain liable for violations of the “family care” provisions (sections a-c).
The Court’s reasoning focused on the scope of Congress’s authority to abrogate States’ immunity. The Fourteenth Amendment guarantees equal protection to all citizens. In the pursuit of equal protection, Section 5 of the Fourteenth Amendment grants Congress the power to abrogate States’ immunity, as long as it “mak[e] its intention to abrogate unmistakenly clear in the language of the statute.” Nevada Dept. of Human Resources v. Hibbs, 538 U. S. 721, 726 (2003). Congress must also ensure that the means it uses to address the “evil or wrong” it seeks to address are narrowly tailored. City of Boerne v. Flores, 521 U. S. 507, 520 (1997).
In Hibbs, the Court held that, traditionally, the “family care” provisions of the FMLA have been administered in ways that were not gender neutral. The Court found that States either had leave policies that granted longer periods of leave to women than to men, or they administered their 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.” Id., at 731.
Accordingly, the Hibbs Court found, because the family care provisions were concerned with remedying gender inequality (and thus effectuating the equal protection goal of the Fourteenth Amendment), abrogating States’ immunity for violations of the family care provisions was a valid exercise of Congress’s power under the Fourteenth Amendment.
However, the Coleman Court found that the same was not true for the “self care” provision of the FMLA. The self care provision, the Court found, was enacted out of concern for the impact serious illness could have on the employee and his or her family, not gender equality. Accordingly, abrogating States’ immunity for violations of the self care provision was not necessary to effectuate the goal of the Fourteenth Amendment, and was thus an invalid exercise of Congress’s Fourteenth Amendment powers. The Court thus reinstated States’ immunity for violations of the self care provision of the FMLA.
Justice Ruth Bader Ginsberg wrote a scathing dissent, portions of which she took the rare step of reading aloud from the bench. Justice Ginsberg argued that the plurality’s ruling essentially eliminates a private right of action for the denial of pregnancy leave. As women are the only employees who would take pregnancy leave, and would do so under the self care provision, (whereas both men and women may take family leave), the plurality’s ruling segregates and specifically impacts women. The “self care” provision thus absolutely implicates gender equality and the Fourteenth Amendment, such that Congress’s exercise of its powers to abrogate immunity is just as valid as with the family care provisions.
As indicated, Coleman applies only to States – localities remain liable for money damages for violations of the self care and family care provisions of the FMLA. Local employers in California are also still subject to the California Family Rights Act. However, the Court’s ruling in Coleman is an indicator of the intense divide on the Supreme Court right now, and could be a harbinger of challenges to come.