Employment Law | Expert Legal Commentary
August 15, 2012
Coleman v. Maryland: Divided Supreme Court Bars FMLA Self-Leave Claims against States
Coleman v. Maryland Court of Appeals
Jeremy Gray of Zuber Lawler & Del Duca
The Supreme Court has held that states cannot be sued for damages under the FMLA’s self-care provision. In a split decision, the four-member plurality found that unlike the family-care provisions of the FMLA, the self-care provision did not meet the congruence and proportional test of § 5 of the Fourteenth Amendment. Thus, this provision did not validly abrogate state sovereign immunity and state employees are now barred from receiving damages under such claims.
The focus of this case is the validity of the self-care provision of the federal Family and Medical Leave Act of 1993 (“FMLA”). Under the FMLA, employees are allowed to take up to 12 weeks of unpaid leave per year for the care of another for these reasons – (a) the birth of a child; (b) the adoption of a child; or (c) the care of an immediate family member with a serious health condition. An employee can also take the unpaid leave for self-care – (d) one’s own serious health condition when the condition interferes with the employee’s ability to perform at work. Id. at 1332.
The self-care provision of the FMLA was challenged when an employee of the State of Maryland requested sick leave. The state threatened to fire him if he did not resign. The employee sued the state, alleging a violation of FMLA’s self-care provision. Id. at 1332-33.
The District Court dismissed the suit, declaring that the FMLA’s self-care provision did not validly abrogate the State’s sovereign immunity, and thus Maryland could not be liable for damages. The Fourth Circuit affirmed, distinguishing the family-care provisions at issue in Hibbs by declaring that the self-care provision was not directed at an identified pattern of gender-based discrimination, nor was it congruent and proportional to any pattern of sex based discrimination by the States. Id.
Plurality Finds Invalid Abrogation of Sovereign Immunity; Bars Damages under Self-Care Provision of FMLA
The threshold issue for the Supreme Court was whether the self-care provision validly abrogated sovereign immunity, thus allowing Maryland to be sued. Under § 5 of the Fourteenth Amendment, Congress can enforce the guarantees in § 1 through legislation that will “remedy or prevent conduct transgressing the Fourteenth Amendment’s substantive provisions.” Id.
Specifically, the Court noted that such acts can impose monetary damages upon states after satisfying an analysis where the legislation must be targeted at “conduct transgressing the Fourteenth Amendment’s substantive provisions;” and “there must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.” Id. at 1334.
In its analysis, the plurality first distinguished this case from leading case Hibbs, which permitted employees to recover damages from states for violations of family-care provision (c), which allows time off to care for an immediate family member. Id. In that case, the plurality found the congruence and proportionality test met. Id. First, Congress had documented pervasive gender stereotyping in states’ leave policies, thus showing harmful conduct. Second, the family-care provision was “narrowly targeted at the faultline between work and family—precisely where sex-based overgeneralization has been and remains strongest,” thereby finding a congruent and proportional link between the injury and the remedy. Thus, Hibbs pointed to an example of valid abrogation of sovereign immunity by the FMLA. Id.
Conversely, the plurality found that the FMLA’s self-care provision did not meet either element of the congruence and proportionality test. Id. On the element of harmful conduct, the plurality found no evidence that states had discriminatory self-care leave policies. Id. Further, the plurality pointed to the legislative history, finding that the self-care provision was rooted in a concern for economic burdens on the employee and not sex discrimination. Id. at 1335. On the element of congruence and proportionality, the plurality found that 95% of state employees already had paid leave, and thus the right to sue under the self-care provision was seemingly unnecessary and thus not congruent or proportionate. Id.
The plurality also rejected arguments that the self-care provision was a necessary adjunct to the family-care provisions in the FMLA. These arguments proffered that by allowing self-care leave, men would take more time off under the FMLA. This would help equalize the amount of time men and women took off under the FMLA, thus reducing the incentive for employers to discriminate in the hiring of women if they perceived that the FMLA would allow women to take off more time than men. Id. at 1335-36. However, the plurality flatly rejected this argument, saying, “only supposition and conjecture support the contention that the self-care provision is necessary to make the family care provisions effective.” Id. at 1336. Further, the plurality declared that “there is nothing particular about self-care leave, as opposed to leave for any personal reason, that connects it to gender discrimination.” Id. at 1337.
Thus, the plurality affirmed the Court of Appeals and thus barred the FMLA claim against the State of Maryland to go forward. Id. at 1338. Justice Thomas and Justice Scalia each wrote their own concurrence in agreement with the plurality’s holding. Justice Thomas wrote separately to note his view that Hibbs was wrongly decided for reasons similar to the plurality’s discussion in this case. Id. Justice Scalia noted his preference for a new test for § 5 jurisprudence while affirming the plurality’s holding. Id.
Dissent Finds Both Documented Discrimination and Congruence and Proportionality
Justice Ginsburg authored the dissent, which Justices Breyer, Sotomayor, and Kagan joined in substantial part. Id. at 1339. In general, the dissent analyzed the FMLA in its entirety, illustrating that its purpose was directed at combating sex discrimination in the workplace. In finding substantial transgressions, the dissent pointed to the history of the FMLA, which showed that pregnancy leave for women only would discourage companies from hiring them, as they would be able to take more leave than men. Id. at 1340. The dissent further noted substantial Congressional documentation of sex and pregnancy discrimination in the workplace, including in state workplaces. Id. at 1341-42.
The dissent then revisited the Aiello’s famous footnote 20, which proclaimed that discrimination on the basis of pregnancy is not discrimination on the basis of sex. Id. at 1344. In strongly disagreeing with that statement, the dissent declared that “because pregnancy discrimination is inevitably sex discrimination, and because discrimination against women is tightly interwoven with society’s beliefs about pregnancy and motherhood, I would hold that (footnote 20 in) Aiello is egregiously wrong.” Id. at 1345.
In rejecting Aiello, the dissent found the self-leave act to be congruent and proportionate, finding that it is “an appropriate response to pervasive discriminatory treatment of pregnant women.” Id. In contrast with the plurality, the dissent cited evidence that existing sick-leave and paid-leave plans were insufficient, and thus a gender-neutral self-care provision addressed not only the need for pregnancy-related leave, but also the discriminatory effect that a women-only leave policy would entail. Id. at 1346-47.
The dissent also showed its support for the self-care provision even assuming Aiello’s validity. The dissent noted that the gender-neutral basis of the self-care provision would “lessen the risk that the FMLA as a whole would give rise to the very sex discrimination it was enacted to thwart” by “increasing the odds that men and women will invoke the FMLA’s leave provisions in near equal numbers.” Id. at 1348-49. Thus, the dissent squarely rejected the plurality’s finding that the self-care provision proved insufficient under the § 5 analysis. Id. at 1349.
The divided court clearly showed its disagreement over whether states must observe the self-leave provision of the FMLA. As the plurality clearly distinguished the self-leave provision from the holding in Hibbs, states are in the clear from suits for damages under self-care claims. State employers and employees should contact experienced employment counsel to see how Coleman may affect self-leave policies and claims.
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