Does the FMLA’s self-care provision abrogate states’ sovereign immunity from suits for damages?
After respondent Maryland Court of Appeals denied petitioner Daniel Coleman’s request for medical leave and terminated his employment, Coleman filed this suit against the State of Maryland under the self-care provision of the Family and Medical Leave Act (“FMLA”), which provides that “an eligible employee shall be entitled to a total of 12 workweeks of leave during any 12-month period . . . [b]ecause of a serious health condition that makes the employee unable to perform the functions of the position,” 29 U. S. C. §2612(a)(1) (D). Coleman argues that the Act’s medical leave provisions should be considered as a unified effort against gender discrimination that permits state employees to sue state employers under the self-care provision, and that the purpose of preventing gender discrimination abrogates state immunity. The state responds that the FMLA’s provisions address discrete forms of discrimination that should be examined individually and that the states’ Eleventh Amendment immunity bars lawsuits against a state employer under the self-care provision. By deciding whether a state employee has legal recourse for a violation of the self-care provision, this case will clarify the scope of state exposure to employment lawsuits seeking money damages under the FMLA.
Questions as Framed for the Court by the Parties
In passing the FMLA, as the Court recognized in Nevada Department of Human Resources v. Hibbs, 538 U. S. 701, Congress intended to eliminate gender discrimination in the granting of sick leave. The legislative record supports its purpose and findings. The question presented for review is:
Whether Congress constitutionally abrogated states’ Eleventh Amendment immunity when it passed the FMLA’s self-care leave provision.
From March 2001 through August 2007, Coleman worked at the Maryland Court of Appeals. Throughout his employment, Coleman satisfied the standards of his position and received applicable pay raises. He was reprimanded for his role in investigating and disciplining an employee in 2005. Although Coleman appealed the written reprimand, the Chief Justice of the Maryland Court of Appeals rejected his appeal. On August 2, 2007, Coleman requested medical leave. On August 3, 2007, his supervisor, Frank Broccolina, denied the request and issued a letter threatening termination if Coleman refused to resign. He claims that upon refusing to resign, he was terminated.
Challenging his termination, Coleman sued under various federal and state laws, including the self-care provision of the FMLA. According to Coleman’s complaint, his termination was in retaliation for his request for medical leave. The District Court of Maryland held, among other things, that the Eleventh Amendment immunizes public employers from lawsuits under the self-care provision. Coleman appealed the FMLA decision and other rulings.
In affirming, the Fourth Circuit found that the FMLA’s self-care provision targeted discrimination based on health conditions, not gender bias. According to the Fourth Circuit, the lack of evidence showing any pattern of state employers engaging in gender discrimination when granting self-care leave made the self-care provision disproportionate to the injury that the FMLA seeks to remedy. Further, the Fourth Circuit reasoned that interpreting the different FMLA medical leave provisions together instead of individually would run counter to the U.S. Supreme Court’s prior treatment of that Act.
The High Court granted certiorari to determine whether the FMLA’s self-care provision authorizes lawsuits against a public employer for failing to grant self-care medical leave and consequently abrogates state immunity under the Eleventh Amendment.
In this case, the Supreme Court will decide whether the FMLA’s self-care provision abrogates state sovereign immunity from a suit for damages under Section 5 of the Fourteenth Amendment. Coleman argues that courts should analyze the FMLA as a whole—not provision-by-provision—and that the entire Act represents Congress’s intentional effort to remedy gender discrimination in employment. As such, Coleman argues that the Court’s decision in Nevada Department of Human Resources v. Hibbs, holding that Congress abrogated state immunity in the FMLA’s family-leave provision, should control. The Maryland Court of Appeals and the state’s Administrative Office of the Courts (collectively “Maryland”), counter that the Supreme Court should interpret individual provisions of the FMLA separately, and that analyzed independently, the self-care provision does not reflect Congressional intent to address gender discrimination. Because of this lack of intent, Maryland argues that allowing the provision to abrogate state immunity from suit would not be a “congruent and proportional” remedy under the test set forth in City of Boerne v. Flores, 521 U.S. 507.
Should Courts Analyze the FMLA as a Whole or by Examining Its Individual Provisions?
Coleman argues that Congress enacted the four main medical-leave provisions in the FMLA as an integrated effort to target gender discrimination in employment. Each prong, he contends, is necessary to effectuate Congress’s goal, and separating the self-care provision from the rest of the provisions will severely diminish the Act’s efficacy. Coleman argues that the self-care provision is specifically necessary to counterbalance employers’ perceptions that women will take more leave than men. The other FMLA provisions, he notes, are targeted more toward women, as they concern family matters in which women are generally more involved. Coleman contends that the self-care provision, which is gender-neutral because it applies to any employee who has a serious illness, ensures that employers will not disfavor women. This is so, Coleman argues, because laws that aim to provide leave to women only give employers an incentive to not hire women, and the FMLA applies to all workers, regardless of gender.
Coleman contends that because the four medical leave provisions are part of one scheme, they are inextricably interrelated, and thus the Court should analyze them together. He points out that in Hibbs, the Court already determined that the FMLA’s family-leave provision legitimately abrogates sovereign immunity. Because Hibbs involved the same statute and because a statute’s provisions should be analyzed together, Coleman argues that the same reasoning the Court applied in Hibbs should apply to validate the self-care provision’s abrogation of state immunity.
Maryland counters that the FMLA’s self-care provision should be analyzed separately from the other provisions. The state points out that the decision in Hibbs was limited to analyzing just one provision of the FMLA—the family-leave provision. Under City of Boerne, an act of Congress is appropriate legislation under Section 5 if the law is congruent and proportional to the wrong sought to be remedied. For a remedy to be “congruent and proportional,” Maryland contends, that remedy must match the right granted in a particular section of a statute. Because Congress can invoke any and all of its constitutional powers in creating statutes, Maryland suggests that it is quite possible that some provisions will be authorized by different Article I powers than others. The state argues that while Congress undoubtedly used its Fourteenth Amendment, Section 5 power to authorize some FMLA provisions—and this power allows abrogation of state immunity—other provisions may be authorized by other enumerated powers that do not allow Congress to abrogate immunity.
How Should the Constitutional Right at Issue in the Self-Care Provision be Defined?
Underlying Coleman’s argument that the statute should be evaluated as a whole is his belief that the constitutional right at issue is gender discrimination. Because gender discrimination is a suspect classification, he argues that the FMLA was appropriate legislation under Section 5. Congress has broad power to enforce constitutional rights under the Fourteenth Amendment, Coleman points out. He contends that this power entails enacting legislation to prohibit Equal Protection rights violations, such as the ones involved in gender discrimination. In enacting the self-care provision, Coleman argues, Congress was ensuring protection of this Equal Protection right to be free from gender discrimination. As such, he contends that allowing employees to bring suit against states for self-care leave is a permissible preventative measure to protect against violations of this suspect classification.
Maryland counters that Congress’s true purpose in enacting the self-care provision was to protect the economic situation of employees and to ensure that employers do not discriminate against any employee for being seriously ill. The right at issue involves only rational basis review, the state contends, because disability is not a suspect or quasi-suspect classification. Furthermore, the state argues, the fact that the self-care provision targeted economic consequences indicates that Congress invoked its Commerce Clause powers, not Section 5 of the Fourteenth Amendment. The Commerce Clause, Maryland asserts, does not allow Congress to abrogate state immunity. The state also contends that Congress can only enforce constitutional rights, not substantively determine what constitutes a constitutional violation. The state argues that in allowing employees to bring actions for damages against states for denying them self-care leave, Congress is using the FMLA to create a substantive policy, not a remedy.
Are the Remedies in the Self-Care Provision “Congruent and Proportional”?
Coleman contends that the remedies in the self-care provision are “congruent and proportional” to address gender discrimination. The remedies that the FMLA provides as a whole, he argues, are narrowly tailored and are limited in their application. Coleman points out that under the self-care provision, an employee must follow certain procedures to be entitled to leave, and that the recovery allowed under the provision only grants employees the compensation they would otherwise have received without denial of sick leave. Furthermore, Coleman argues, the remedies in the self-care provision are appropriate because Congress intended the FMLA to remedy a gap in the Pregnancy Discrimination Act (“PDA”) Coleman asserts that the PDA previously allowed employers to deny benefits to pregnant women if those employers would also deny benefits to disabled employees, and the FMLA fixed this by requiring all employers to provide leave to disabled employees.
Maryland responds by asserting that under the City of Boerne test for congruence and proportionality, the remedy far exceeds the right at issue in the self-care provision. The state argues that the amount of leave provided in the statute is already a very large entitlement. Moreover, Maryland argues, even if Congress intended the self-care provision to fix the gap in the PDA, the remedy provided is too broad to be proportionate to the need for self-care leave. The FMLA’s self-care provision makes the question of discrimination based on pregnancy a moot point by circumscribing employers’ ability to deny leave to disabled employees, Maryland contends. It argues that since the FMLA requires employers to provide self-care leave, an employer cannot deny a woman pregnancy-related leave on the grounds that the employer does not provide any self-care leave. In addition, the state argues, Congress does not need to abrogate state immunity from suit in the self-care provision to achieve its goal of mandating that employers provide employees with self-care leave. Maryland points out that many states offer greater protections than the FMLA, that employees can sue state officials for violations of the FMLA under Ex parte Young for injunctive relief, and that the Department of Labor can bring an action against a state that violates the self-care provision.
Coleman argues that because the self-care provision operates in concert with three other medical leave provisions to stop gender discrimination in the workplace, Congress employed its power under the Fourteenth Amendment to abrogate state immunity from private lawsuits. . Objecting to this characterization of the FMLA, Maryland contends that the self-care provision targets discrimination based on medical conditions and argues that the self-care provision does not abrogate state immunity.
Gender Discrimination in Medical Leave
Noting that the Fourteenth Amendment circumscribes state immunity, Coleman urges that the FMLA aims to deter gender discrimination in employment by equalizing the amount of medical leave available to men and women. He contends that isolating the self-care provision from the family-care provision would gut the FMLA's protection against gender discrimination. In support, the National Partnership for Women and Families (“NPWF”) emphasizes that the self-care provision is aimed at stereotype-laden discrimination threatening female employees who require disability leave during pregnancy. The Constitutional Accountability Center adds that the self-care provision provides medical leave for all employees regardless of gender, guaranteeing that women would not be stigmatized for taking leave. According to the Lawyers' Committee for Civil Rights Under Law, the FMLA’s purpose was to prevent a situation in which an employer would have less incentive to hire a woman who would have more medical leave available than a man. In addition to doubting the logic for treating the provisions differently, Coleman argues that interpreting the different FMLA provisions separately would create wasteful litigation.
In stark contrast, Maryland argues that interpreting the FMLA’s self-care provision as a means to prevent gender discrimination flies in the face of the FMLA’s plain text. Highlighting discrimination against temporarily disabled employees, Maryland argues that the self-care provision was intended to mitigate the cost of illness on a family and prevent employers from discriminating against employees with serious health problems. Twenty-six states add that Congress aimed to alleviate the societal healthcare costs of serious illness on families, private charities, and government coffers by deterring employment discrimination against the temporarily disabled. According to those States, rather than remedying national gender discrimination, Congress modeled the FMLA self-care provision on contemporary state law temporary disability insurance schemes. The States further contend that the different FMLA provisions involve different concerns: the self-care provision was intended to help temporarily disabled employees and their families, and the family-leave provision was intended to prevent gender discrimination.
Protection of Employees
The NPWF notes that immunizing state employers from private lawsuits would undermine the FMLA’s purpose of preventing retaliatory employment decisions. The NPWF cites examples of state employers who have taken adverse employment actions against employees who requested self-care leave under the FMLA. It further notes that if state employees cannot sue their employers for retaliatory employment actions, states will not have any incentive to comply with the FMLA.
Maryland responds that state employees will still have the FMLA’s protection even if they cannot sue their employers. The state points out that many states provide sick-leave benefits that are more expansive than the FMLA and have statutory protections for employees if they are denied leave. Maryland argues that states are required to comply with the FMLA self-care provision because it was enacted under Congress’s Commerce Clause Power. The state further contends that employees can still sue state officials for injunctive relief, and the Department of Labor can bring an action against a state for failing to comply with the self-care provision. Maryland adds that by expanding federal jurisdiction and exposing state treasuries to private actions, Coleman's interpretation of the FMLA would needlessly alter the balance of power between the states and federal government.
While a state employee may have administrative remedies available for FMLA violations, this case will determine whether the Eleventh Amendment bars state employees from seeking money damages against state employers for violating that Act’s self-care provision. If the Court decides that the self-care provision indivisibly functions with the other medical leave provisions to stop gender discrimination in the workplace, the Court may find that the Fourteenth Amendment permits an abrogation of state immunity. However, if the Court decides that the FMLA’s self-care provision alleviates the costs of temporary disability on families, then the Court may find that the Eleventh Amendment immunizes states from lawsuits under the provision.
The authors would like to thank former Supreme Court Reporter of Decisions Frank Wagner for his assistance in editing this preview.
Constitutional Law Prof Blog, Ruthann Robson: On Floors, Ceilings, Federalism and Constitutional Law Exams: West Virginia Weekend (Apr. 9, 2011)
National Organization for Women: The Provisions of the Family and Medical Leave Act (Feb. 5, 2007)
Stanford Law Review, Reva B. Siegel, You’ve Come a Long Way, Baby: Rehnquist’s New Approach to Pregnancy Discrimination in Hibbs, (Apr. 2006)