May 14, 2012 Top Story

Supreme Court Limits FMLA Claims Against States

Sovereign immunity bars relief under the self-care provision

Lisa R. Hasday

State employees cannot sue their employers for money damages under the Family and Medical Leave Act (FMLA) provision allowing leave for self care, according to a recent U.S. Supreme Court decision. Coleman v. Court of Appeals of Maryland. The Court held that Eleventh Amendment sovereign immunity bars such suits, confirming the trend set by the circuit courts of appeals that had addressed the question (including the FirstFourthFifthSixth, Seventh, Eighth, and Tenth Circuits).

No Pattern of Discrimination

Petitioner Daniel Coleman worked for the Maryland Court of Appeals as an executive director of procurement and contract administration. In 2005, he investigated and suspended a member of his staff, who was related to one of Coleman’s supervisors. In 2007, that supervisor sent Coleman a letter of reprimand relating to a different matter. A few months later, Coleman was placed under a doctor’s care for 10 days and requested sick leave. Coleman’s other supervisor told Coleman that he would be fired if he did not resign. Coleman alleged violations of Title VII and the FMLA.

The district court dismissed the Title VII claim for failure to state a claim and dismissed the FMLA claim on the ground that Congress unconstitutionally abrogated the states’ immunity when it passed the FMLA’s self-care provision. The U.S. Court of Appeals for the Fourth Circuit affirmed. Coleman then petitioned the Supreme Court to review the FMLA claim.

The self-care provision requires employers to grant up to 12 weeks of unpaid, job-protected leave for self care of a serious health condition, provided certain statutory requisites are met. In a 5–4 decision, with one justice concurring only in the judgment, the Court found that Congress’s attempt to abrogate the states’ immunity from suit exceeded Congress’s power under Section 5 of the Fourteenth Amendment.

Congress failed, in the plurality’s view, to “identify a pattern of constitutional violations and tailor a remedy congruent and proportional,” a test that the Supreme Court established four years after the FMLA was enacted, in City of Boerne v. Flores, for determining Congress’s Fourteenth Amendment powers. “The evidence documented in support of the self-care provision is, to a large degree, unrelated to sex discrimination, or to the administration of the family-care provisions,” wrote Justice Anthony M. Kennedy for the plurality.

The Court previously considered the FMLA’s family-care provisions in Nevada Department of Human Resources v. Hibbs. In Hibbs, the Court held that state employees could recover money damages for state violations of those provisions because Congress had validly abrogated the states’ immunity. Congress found that states frequently discriminated on the basis of sex in their family-leave policies and practices, assuming and reinforcing a stereotype that caring for family members is women’s work.

The Dissenting and Concurring Views

According to Justice Ruth Bader Ginsburg, the self-care provision at issue in Coleman was also a response to state-sponsored sex discrimination—against pregnant women. Justice Ginsburg’s dissent argues that the provision does not mention pregnant women specifically because “Congress sought to ward off the unconstitutional discrimination it believed would attend a pregnancy-only leave requirement.”

Moreover, Justice Ginsburg explains that Congress also included the self-care provision to prevent discrimination against women based on an employer’s belief that they would be more likely than men to take FMLA leave. “Congress was told that men and women take medical leave approximately equally,” she wrote. “Congress therefore had good reason to conclude that the self-care provision—which men no doubt would use—would counter employers’ impressions that the FMLA would otherwise install female leave.” In the plurality’s view, however, “[t]he ‘few fleeting references’ to how self-care leave is inseparable from family-care leave fall short of what is required for a valid abrogation of States’ immunity from suits for damages.”

Justice Antonin Scalia, who concurred only in the judgment, found it troubling that the plurality and the dissent reached such different results after applying the same test. “[T]hat flabby test is ‘a standing invitation to judicial arbitrariness and policy-driven decision making,’” he wrote.

The Import of Coleman

“At first blush the opinion appears to be a straightforward constitutional analysis that has some logic to it,” observes Andrew S. Pollis, Cleveland, cochair of the ABA Section of Litigation’s Civil Rights Litigation Committee. “But under the surface you’re seeing a Supreme Court that is by a slim margin hostile to any effort to standardize our economy and our social safety nets.”

In that sense, Hibbs, which upheld the right to sue states under the FMLA’s family-care provisions, was “an amazing outlier,” remarks Debra L. Raskin, New York City, a member of the Section of Litigation’s Employment and Labor Relations Committee. Justice Clarence Thomas wrote a concurring opinion in Coleman “only to reiterate [his] view that Hibbs was wrongly decided.”

Alternate Avenues for Relief

What options remain for someone like the Coleman petitioner, who requested sick leave from his state employer and was told he would be fired if he did not resign? “If the State agrees with petitioner that damages liability for violations of the self-care provision is necessary to combat discrimination against women,” the plurality opinion offers, “the State may waive its immunity or create a parallel state law cause of action.”

Justice Ginsburg’s dissent notes two other options. First, an employee may seek injunctive relief against a state official pursuant to the Court’s decision in Ex parte Young, a 1908 case that established such suits as proper. Maryland conceded that the self-care provision remains valid under the Commerce Clause and that it therefore must comply, even if its employees may sue only for injunctive relief. Second, the U.S. Department of Labor may sue a state under the FMLA and recover monetary relief on an employee’s behalf. Furthermore, adds Raskin, an employee could claim that denial of self-care leave is a failure to provide reasonable accommodation under federal or state disability laws.

“I’m not telling my clients they don’t need to worry,” says the Section’s Employment and Labor Relations Committee vice-chair Brian W. Koji, Tampa, Florida, who represents state employers. “In light of this decision, state employers might want to reevaluate their leave policies and practices to ensure that they are being structured and administered in a non-discriminatory manner,” advises Ann Marie Painter, Dallas, former cochair of the Section’s Employment and Labor Relations Committee.

Lisa R. Hasday is an associate editor for Litigation News.

Keywords: FMLA, Family and Medical Leave Act, discrimination, family care, job protection

This article presents the views of the author alone and not necessarily those of her employer, the U.S. Department of Justice.

Related Resources

Copyright © 2017, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).