Tuesday, March 20, 2012

States Immune from Suit for FMLA Violations Related to Self-Care

SupctThe Supreme Court issued it's opinion in Coleman v. Md. Ct. App. today, holding that Congress lacked the power to abrogate state immunity from suits for damages for violations of the FMLA's self-care provisions. Here's the syllabus:

JUSTICE  KENNEDY, joined by THE CHIEF JUSTICE, JUSTICE THOMAS, and JUSTICE  ALITO, concluded that suits against States under the self-care provision are barred by sovereign immunity.  Pp. 3−12. 

(a) Under the federal system, States, as sovereigns, are immune from damages suits, unless they waive that defense.  See, e.g., Kimel v. Florida Bd. of Regents, 528 U. S. 62, 72−73. Congress may also abrogate the States’ immunity pursuant to its powers under §5 of the Fourteenth Amendment, but it must make that intention “unmistakably clear in the language of the statute,” Hibbs, supra, at 726.  It did so in the FMLA.  Congress also “must tailor” legislation enacted under §5 “to remedy or prevent” “conduct transgressing the Fourteenth Amendment’s substantive provisions.”   Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U. S. 627, 639. “There must be a congruence and proportionality between the injury to be prevented or remedied and  the means adopted to that end.” City of Boerne v. Flores, 521 U. S. 507, 520. Pp. 3−5. 

(b) The sex-based discrimination that supported allowing subparagraph (C) suits against States is absent with respect to the self-care provision. Petitioner’s three arguments to the contrary are unpersuasive.  Pp. 5–12.

(1) Petitioner maintains 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.  At the time the FMLA was enacted, there was no evidence of such discrimination or stereotyping in sick-leave policies.  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 had no evidence that States were excluding pregnancy-related illnesses from their leave policies.  Pp. 6–7.

(2) Petitioner also argues that the self-care provision is a necessary adjunct to the family-care provision sustained in Hibbs.  But his claim—that the provisions work in tandem to ensure the equal availability of total FMLA leave time to women and men despite their different leave-usage patterns―is unconvincing and does not comply with the requirements of City of Boerne. Also, there are 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. Pp. 8–11.

(3) Finally, petitioner contends 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 demonstrates, at most, that the self-care provision was directed  at remedying neutral leave restrictions that have a disparate effect on women. However, “[a]lthough 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.”  Board of Trustees of Univ. of Ala. v. Garrett, 531 U. S. 356, 373.  Because 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. Pp. 11−12. 

JUSTICE SCALIA adhered to his view that the Court should abandon the “congruence and proportionality” approach in favor of one that is properly tied to the text of §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 §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. Pp. 1−2.

Justice Ginsberg, Breyer, Sotomayor, and Kagan would have held that the self-care provisions validly enforce the right to be free from gender discrimination.

I haven't had time to read the opinion carefully, but the result is not much of a surprise. One particularly interesting piece is that Justice Scalia seems to be continuing his drive to limit Congress's powers to enact anti-discrimination legislation that is in any way different from what the Fourteenth Amendment provides, although he does apparently see some wiggle room for race discrimination legislation.

Update: Michael Waterstone (Loyola L.A.) has some nice analysis at Prawfsblawg, and I've written several things about the 11th amendment issue and federalism, like this, this, and an article forthcoming in the Wisconsin Journal on Law, Gender and Society that I'll post on SSRN as soon as it's ready for prime time.



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I guess somewat predictable. I hate this congruent/proportionality analysis under Section 5 of the 14th Amdt. Just allows for conservative judicial activism.

Posted by: Paul M. Secunda | Mar 20, 2012 10:50:27 AM

Prof. Secunda, you may like Scalia's concurring opinion then: "[T]hat flabby test is 'a standing invitation to judicial arbitrariness and policy-driven decisionmaking.'"

Posted by: Phil Miles | Mar 20, 2012 11:07:56 AM

It's interesting that there's a gender split on this issue. The women (and one man -so not entirely along gender lines) on the court would have held that the provisions validly enforce the right to be free from gender discrimination.
I guess this is relatively new in the US since there have not been many women justices? I wonder if it will happen more often. In Canada the Supreme Court has strikingly split along gender lines in a few decisions, particularly on sex equality issues. A notable example is Symes v. Canada, 1993 CanLII 55 (SCC) in which the seven men on the SCC held that child-care expenses were not tax-deductable business expenses and that the relevant tax legislation did not violate the gender equality provision of the constitution. The two women dissented.

Posted by: Chris Davidson | Mar 21, 2012 12:49:21 PM

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