It All Comes Down to Gender: The Supreme Court Considers State Immunity to FMLA

Vol. 29 No. 4

By

Robin R. Runge is coordinator of the Program on Women’s Employment Rights (POWER), Employment Justice Center, in Washington, D.C., and vice chair of the Women’s Committee of the ABA’s Individual Rights and Responsibilities Section.

This Term the Supreme Court has agreed to hear the latest in a series of cases limiting the scope of federal antidiscrimination in employment statutes under states’ Eleventh Amendment immunity. In Hibbs v. HDM Department of Human Resources, 273 F.3d 844 (9th Cir. 2001); 122 S. Ct. 2618 (2002), the Court will consider whether a provision of the federal Family and Medical Leave Act (FMLA)—requiring employers to provide eligible employees with leave to care for a spouse suffering from a serious health condition—applies to state employees. This case is critical because it presents the possibility that state employees may lose even more of their protections under federal antidiscrimination law.

William Hibbs sued his former employer, the Nevada Department of Human Resources, for, inter alia, violation of the FMLA, which permits employees to take job-protected unpaid leave to care for their own serious health conditions, including pregnancy or to care for the serious health condition of a child, spouse, or parent. 29 U.S.C. § 2612. On summary judgment, the federal district court held that Nevada had not waived its Eleventh Amendment immunity, and Hibbs’s FMLA claim was barred by Nevada’s Eleventh Amendment immunity. The district court held that the "FMLA does not contain a sufficiently clear expression of congressional intent to abrogate Eleventh Amendment immunity and the FMLA was not enacted pursuant to a valid exercise of the section 5 enforcement power." 273 F.3d at 851. On appeal, the Ninth Circuit reversed and remanded the district court’s decision in Hibbs’s favor. After appeal by the defendants, on June 24, 2002, the U.S. Supreme Court agreed to hear arguments on this case.

In the last few years, the Supreme Court has considered application of Eleventh Amendment immunity to federal employment antidiscrimination statutes with disastrous results for state employees. Board of Trustees of the University v. Garrett, 531 U.S. 356 (2001) (Americans with Disabilities Act is not a valid exercise of the section 5 power); Kimel v. Florida Board of Regents, 528 U.S. 62 (2000) (Age Discrimination in Employment Act is not a valid exercise of the section 5 power). There is very real concern that the Supreme Court will take this opportunity to limit the scope of the FMLA as well. However, because the FMLA was intended to remedy state-sponsored gender discrimination, it is an appropriate exercise of the enforcement powers of section 5 of the Fourteenth Amendment (section 5) and thus represents a valid abrogation of states’ immunity.

States are immune from lawsuits under state or federal law by private parties in federal court absent a valid abrogation of that immunity or an express waiver by the state. Congress can abrogate state sovereign immunity if it unequivocally expresses its intent to do so and acts pursuant to a valid exercise of power. Seminole Tribe v. Florida, 517 U.S. 44, 55 (1996). Congress can abrogate states’ sovereign immunity under its enforcement power as stated in section 5. Kimel, 528 U.S. at 80.

In Hibbs, the Ninth Circuit, in line with every other circuit that has considered the same question, held that the FMLA contains a sufficiently clear expression of congressional intent to abrogate state sovereign immunity. Hibbs, 273 F.3d at 853 (citing Chittister v. Department of Community & Economic Development, 226 F.3d 519 (5th Cir. 2000); Sims v. University of Cincinnati, 219 F.3d 559, 562 (6th Cir. 2000); Hale v. Mann, 219 F.3d 61, 67 (2d Cir. 2000). The court then went on to discuss whether the FMLA is a valid exercise of the enforcement powers of section 5.

First, the Ninth Circuit distinguished the FMLA from the ADA and the ADEA, which the Supreme Court recently held are invalid under section 5, arguing that the Court’s decisions in Garrett and Kimel were based upon the fact that age and disability classifications are not subject to heightened scrutiny under the Equal Protection Clause. The court argued that the FMLA is a statute "aimed at remedying and preventing gender discrimination which is subject to heightened scrutiny," and that the provision of the FMLA at issue in Hibbs—family care leave—is clearly intended to remedy state-sponsored gender discrimination. Thus, the FMLA is subject to intermediate scrutiny under the Equal Protection Clause and is presumptively constitutional . The court found that the defendants failed to prove no widespread pattern of gender discrimination regarding employee leave to care for sick family members and concluded the FMLA is a valid exercise of the enforcement powers of section 5. 273 F.3d at 854, 857, 858.

Next, the Ninth Circuit distinguished Hibbs from decisions in seven other circuits holding the FMLA was not enacted pursuant to a valid exercise of Congress’s section 5 power. Laro v. New Hampshire, 259 F.3d 1, 11 (1st Cir. 2001); Townsel v. Missouri, 233 F.3d 1094, 1096 (8th Cir. 2000); Chittister v. Department of Community & Economic Development, 226 F.3d 223, 229 (3d Cir. 2000); Kazmier v. Widmann, 225 F.3d 519, 526, 529 (5th Cir. 2000); Sims v. University. of Cincinnati, 219 F.3d 559, 566 (6th Cir. 2000); Hale v. Mann, 219 F.3d 61, 69 (2d Cir. 2000); Garrett v. University of Alabama Birmingham Board of Trustees, 193 F.3d 1214, 1220 (11th Cir. 1999), rev’d on other grounds, 531 U.S. 356 (2001) . The court focused on the specific provision raised in these cases and observed that only Kasmier involved the same FMLA provision involved in Hibbs (protected leave). See Kazmier, 225 F.3d at 525-26; 29 U.S.C.A. 2612(a)(1)(C). However, the Ninth Circuit distinguished Kazmier because the Kazmier court failed to apply the heightened level of scrutiny warranted by the FMLA in its analysis.

Finally, the Ninth Circuit reviewed sections of the legislative history of the FMLA and provided an extensive history of discrimination against women in employment, including statutes enacted and retained by the majority of states until the middle of the twentieth century that perpetuated discrimination against women. 273 F.3d at 861, 862. Many hope this Ninth Circuit case will beat the odds and be upheld by the Court, thus enabling thousands of state employees across the country—primarily women—to continue to exercise their rights to care for loved ones and their own illnesses without fear of job loss.

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