Upholding application of Family and Medical Leave …

Upholding application of Family and Medical Leave Act (FMLA) to states, fractured Supreme Court issues opinion that will be studied by law professors and students for years

In Hibbs v. Department of Human Resources (5/27/03), the Court held that Congress properly abrogated the states’ sovereign immunity when it made the FMLA applicable to them.

The practical implications of this ruling are simple and straightforward — state employees have FMLA rights if they otherwise qualify for them under the statute.

Court-watchers — concerned with more than mere practical implications — were surprised by the apparent reversal of the Court’s federalism as applied in previous decisions, including several which held sovereign immunity precluded application of other federal employment laws to the states.

The Court in Hibbs was fractured, disclosing major differences in approach to such issues that will undoubtedly resurface again: Rehnquist delivered the opinion of the Court, in which O’Connor, Souter, Ginsburg, and Breyer joined. Souter filed a concurring opinion, in which Ginsburg and Breyer joined. Stevens filed an opinion concurring in the judgment. Scalia filed a dissenting opinion. Kennedy filed a dissenting opinion, in which Scalia and Thomas joined. Final score: 9 Justices; 5 opinions.

It is fascinating how the primary opinion relied on the FMLA being directed against sex discrimination. Denying all employees leave for maternity and other purposes, such as the employee’s own serious health condition or that of a family member — conduct perfectly lawful prior to the FMLA — would not seem to constitute sex discrimination.

However, such a facially neutral policy would have a disparate impact on women because: “Where ‘two-thirds of the nonprofessional caregivers for older, chronically ill, or disabled persons are working women,” . . . such a policy would exclude far more women than men from the workplace.”

Moreover, the Court stated that “Congress sought to ensure that family-care leave would no longer be stigmatized as an inordinate drain on the workplace caused by female employees, and that employers could not evade leave obligations simply by hiring men. By setting a minimum standard of family leave for all eligible employees, irrespective of gender, the FMLA attacks the . . . stereotype that only women are responsible for family caregiving, thereby reducing employers’ incentives to engage in discrimination by basing hiring and promotion decisions on stereotypes.”

And a bonus — the very same statute also remedies discrimination against men – by giving them equal rights to leave.

Brilliant and enlightened – a pleasant surprise from this Court. Interesting commentary on this case, which will no doubt generate thousands of pages from all viewpoints, includes this from columnist Michael Kinsley in the Washington Post and this from Joanna Grossman, a FindLaw columnist and associate professor of law at Hofstra University.

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