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State Employees Cannot Sue for...

State Employees Cannot Sue for Denial of FMLA “Self Care” Leave

Under the Family and Medical Leave Act of 1993 (FMLA, or the “Act”), eligible employees are entitled to take up to 12 weeks of unpaid leave during any 12-month period, without fear of losing their job.  If an employer violates its employee’s FMLA rights, the employee can usually sue the employer in federal court to recover monetary damages (including lost wages & benefits, liquidated damages, and possibly attorneys’ fees).  See 29 U.S.C. § 2617; 29 C.F.R. §825.400(c).

Last month, however, the United States Supreme Court carved out a significant exception to an employee’s “right to sue” under the FMLA.  In Coleman v. Court of Appeals of Maryland, 566 U.S. ___ (2012), the Court held that the states cannot be sued by state employees for denying FMLA “self care” leave.  That is, when a state instrumentality or public agency denies leave to a qualified employee for “self care” of a serious medical condition, they cannot be sued for this FMLA violation (even though an equivalent private employer most certainly could).

In reaching its decision, the plurality (consisting of Chief Justice Roberts, Justice Thomas, Justice Alito, and Justice Kennedy, who wrote the opinion) pointed to the controlling principle of “sovereign immunity,” which holds that states are immune from suits for damages, unless they choose to waive such immunity.  A key exception to this principle exists where Congress abrogates the states’ immunity under the 14th Amendment’s “enforcement” provision — though, as the Court has held previously, Congress “must make its intention to abrogate unmistakably clear[.]“  Nevada Dept. of Human Resources v. Hibbs, 538 U.S. 721 (2003).

The Hibbs case had dealt with practically the same issues as those facing the Court in Coleman: state employees wanted to sue their employer (the state of Nevada) for violations of the FMLA.  However, the employees in Hibbs were being denied “family leave” (leave to care for a family member with a serious health condition) under 29 U.S.C. § 2612(a)(1)(C), rather than “self-care leave” under 29 U.S.C. § 2612(a)(1)(D).  The Hibbs Court identified a clear nexus between denial of “family leave” and traditional gender discrimination, since it was generally understood that female workers would be the ones more likely to leave work and care for their family member(s).  Acknowledging that female government employees had a constitutional right not to be discriminated against on the basis of sex, the Hibbs Court reasoned that state employees needed the “protection” that accompanied the right to sue the state for monetary damages if and when an FMLA violation occurred.

By contrast, the Court was not persuaded that the “self-care leave” at issue in Coleman was linked to any “pattern of state constitutional violations,” and determined that “self-care leave” (unlike “family leave”) was not administered according to gender differences or deep-rooted stereotypes.  Whereas the Court had said in Hibbs that 29 U.S.C. § 2612(a)(1)(C) was primarily aimed “to protect the right to be free from gender-based discrimination in the workplace,” the Coleman Court decided that 29 U.S.C. § 2612(a)(1)(D) arose out of a concerns for “illness-related job loss” and illness-based discrimination.  As such, the Court held that denying anyone the protection of such leave still does not constitute discrimination, and certainly did not warrant a drastic remedy like abrogating Maryland’s sovereign immunity from lawsuits.

Four justices dissented to the Court’s Opinion.  Writing for the dissent, Justice Ginsburg said that “the self-care provision…validly enforces the right to be free from gender discrimination in the workplace.”  Justice Ginsburg pointed out that the majority’s logic would “provide job-protected leave for a woman to care for a newborn, but not for her recovery from delivery, a miscarriage, or the birth of a stillborn baby.”  According to the dissent, the FMLA’s provision concerning “self-care leave” has the same statutory aim as the rest of the Act: “to make it feasible for women to work while sustaining family life.”  Nevertheless, the law is now clear: while states can be sued for denying FMLA “family leave” to their employees, theycannot be sued for denying similar “self-care leave.”