Tuesday, January 10, 2012
Although this Supreme Court term has fewer employment and labor cases or at least fewer foundation-shaking employment and labor cases than the last few terms, that does not mean that there is nothing to pay attention to. Case in point: Coleman v. Maryland Court of Appeals, which will be argued tomorrow on FMLA leave for state employees.
It's a case that brings together two of my favorite topics, family and medical leave and the 11th Amendment. But wait, you might be thinking, didn't the Court already deal with the FMLA and the 11th Amendment in Nevada Dep't of Human Resources v. Hibbs, and didn't the Court find that Congress could subject the states to suits for damages for FMLA violations? The answer would be, yes, but . . .
You might recall that the plaintiff in Hibbs was a state employee who took leave to care for his sick spouse. He was fired after he exhausted his leave, and he sued under the FMLA's cause of action allowing an employee to sue for damages for interference with, restraint of, or the denial of exercise of FMLA rights. Generally, the 11th Amendment (really actually Article III, but that's kind of a technical federal courts argument that I won't go into here) prohibits suits against unconsenting states for money damages. Congress can abrogate that immunity when it acts validly under the 14th Amendment. In Hibbs, the Court found that the FMLA was validly enacted under the 14th Amendment because it was designed to promote women's equality by ensuring that leave could be taken by both sexes and by encouraging both sexes to take that leave. Traditionally, women have engaged in the bulk of caregiving for young children or adult family members with serious health needs.
That didn't necessarily end the issue, though. Since Hibbs, the Court has increasingly taken an "as applied" approach in its abrogation cases. You might be familiar with Tennessee v. Lane for example, where the Court found that Congress had validly abrogated state sovereign immunity in Title II of the ADA at least insofar as it provided damages actions against states for not providing access to the courts or for inflicting cruel and unusual punishment on prisoners. This stood in stark contrast to Bd. of Trustees of the University of Alabama v. Garrett, where the Court held that Title I of the ADA was not validly enacted under the 14th Amendment, and so Congress could not subject the states to suits for violations of the act.
Which sets the stage for Coleman. The plaintiff in Hibbs took leave to care for his spouse--an act that is still somewhat unusual for men and certainly not consistent with stereotyped expectations of male gender behavior. The FMLA is the Family and Medical Leave Act, though. It mandates leave for people to care for their own serious health conditions as well. The self-care provision might seem more analogous to disabilities and things protected by the Americans with Disabilities Act (not valid under the 14th Amendment) rather than a part of an effort to disrupt discriminatory patterns on the basis of sex (valid under the 14th Amendment).
The plaintiff has argued that the self-care leave is a part of the effort to disrupt discriminatory patterns on the basis of sex, pointing to employer hesitation to hire women because of a perception that they would be more likely to need leave for their own pregnancy-related health issues. The state of Maryland argues that the self-care provision is designed to prohibit discrimination against those with serious health issues, more like the ADA, and even if it were related to sex discrimination, such a remedy is not congruent and proportional to what the 14th Amendment would provide and so not within Congress's abrogation powers.
It will be interesting to see whether the changes in membership on the Court since Hibbs change the tenor of the argument or the Court's approach.
Update: Here's the transcript. No real surprises, although you can see the Justices arguing with each other through their questions more than usual.