Argument preview: Court to consider money damages for FMLA self-care violations
On Wednesday, January 11, the Court will hear oral argument in Coleman v. Maryland Court of Appeals, a case posing the question whether state employers can be sued for damages when they violate the self-care provision of the Family and Medical Leave Act (FMLA).
The FMLA requires most employers to provide up to twelve weeks of unpaid time off to their employees for five categories of leave: (1) the birth of a child; (2) the adoption of a child; (3) the need to care for a sick family member; (4) a personal serious medical condition; and, in certain circumstances, (5) leave relating to a family member’s military service. This case involves the fourth category – the plaintiff, Daniel Coleman, sued his employer, the Maryland Court of Appeals, for allegedly firing him for taking personal medical leave.
The FMLA allows employees who are denied FMLA leave to sue their employer for money damages, which is what Mr. Coleman seeks in this case. However, over the past two decades, the Supreme Court has limited Congress’s authority to subject states to private damages actions, on the premise that they generally enjoy sovereign immunity to such suits. But the Court has held that Congress can abrogate that immunity when necessary to enforce the Equal Protection Clause of the Fourteenth Amendment. The question in this case is whether Congress was properly exercising its power to enforce those equal protection rights when it authorized suits against state employers for violations of the FMLA’s self-care provision.
A major focus of the case is the Court’s 2003 decision in Nevada v. Hibbs. In that case, by a vote of six to three, the Court (in an opinion by the late Chief Justice Rehnquist) held that Congress validly subjected states to suits for damages under the family medical leave provision of the FMLA, which requires employers to provide leave to allow the worker to care for a sick child or other family member. The Court held that although the Equal Protection Clause does not itself require state employers to provide such leave, Congress could require it as a way of getting at persistent stereotypes regarding women’s roles as family caregivers. Congress could conclude, the Court explained, that these stereotypes can lead many state employers to deny men leave to care for a sick child (on the view that this was the mother’s responsibility) or could lead employers to be wary of hiring women (who, the employer might stereotypically worry, would take more time off to care for sick family members than would a man).
Mr. Coleman, represented by Michael Forman of Penn State’s Dickinson School of Law’s Civil Rights Appellate Clinic, argues that the same reasoning applies in this case. The self-care provision is part of the same general scheme to address the risk that employers would otherwise be hesitant to hire women for fear that they will take disproportionate medical leave, particularly for pregnancy-related reasons. As in Hibbs, Coleman argues, Congress was acting against a backdrop of a well-established history of employment discrimination against women. And as in Hibbs, Congress could reasonably conclude that the best way to protect women from discrimination was to provide all employees with an across-the-board right to leave that might otherwise be subject to discriminatory dispensation.
The state of Maryland, represented by Deputy Attorney General John B. Howard, argues that this case is fundamentally different from Hibbs. While the family leave provision may have been directed at remedying irrational stereotypes about women’s roles in the family, the self-care provision serves a wholly different function. The state argues that Congress was concerned in this provision with helping families achieve a more reasonable work-life balance and preventing discrimination against people with serious health problems. Those purposes are too unrelated to the goals of the Equal Protection Clause to justify abrogation of states’ sovereign immunity. Moreover, even if the self-care provision was intended to help address sex discrimination, it is insufficiently tailored to that task. The state argues that Congress has already required employers to treat pregnancy-related medical needs on par with other medical leave through the Pregnancy Discrimination Act. And, if anything, going further and prescribing how much self-care medical leave employers must provide could increase incentives to discriminate against women in hiring, as an employer may hope that a man is less likely than a woman to take up all the required leave.
The Court’s decision in the case will be interesting, not simply because it addresses an important question for state employees and employers alike. The Hibbs majority was an unusual coalition, including not only the usual members of the more liberal wing of the Court, but also Chief Justice Rehnquist and Justice O’Connor, who previously had provided the fifth vote in a series of cases striking down provisions subjecting states to private suits. But the old Chief has been replaced by Chief Justice Roberts, and Justice O’Connor has been replaced by Justice Alito. At the same time, Justice Scalia has since declared that the entire analytical framework applied in Hibbs (as well as the more numerous cases striking down abrogation provisions) is hopelessly misguided and has vowed not to apply it any more. As a result, while it seems likely that the Court will dispose of the case on the terms addressed by the parties – deciding whether this case is sufficiently like, or unlike, Hibbs – the argument and eventual decision may provide some insight into the future of the Court’s sovereign immunity jurisprudence as well.