The Leadership Conference on Civil and Human Rights

The CIVIL RIGHTS MONITOR is a quarterly publication that reports on civil rights issues pending before the three branches of government. The Monitor also provides a historical context within which to assess current civil rights issues. Back issues of the Monitor are available through this site. Browse or search the archives

Winter 2004

Supreme Court Rules that State Employees are Covered by Family and Medical Leave Act

Hibbs v. Nebraska, No. 01-1368

 

On May 27, 2003, the Supreme Court ruled 6-3 that notwithstanding a claim of sovereign immunity, state employees are fully covered under the federal Family and Medical Leave Act (FMLA), and may recover money damages if the state fails to comply with the family-care provision of the Act.    

Background

Respondent William Hibbs, an employee of the Nevada Department of Human Resources Welfare Division (Department), sought leave to care for his ailing wife under the FMLA, which entitles an eligible employee to take up to 12 work weeks of unpaid leave annually resulting from the onset of a "serious health condition" in the employee's spouse and for other reasons, 29 U.S.C. §2612(a)(1)(C).  At the time, Hibbs' wife was recovering from a car accident and neck surgery.  The Department granted Hibbs' request for the full 12 weeks of FMLA leave but eventually informed him that he had exhausted that leave and that he must report to work by a particular date.  Hibbs failed to do so and was fired.  He then sued the Department and two of its officers in Federal District Court seeking damages and injunctive and declaratory relief for, inter alia, violations of §2612(a)(1)(C).  

The court awarded the Department summary judgment on the grounds that the Eleventh Amendment barred the FMLA claim and that respondent's Fourteenth Amendment rights had not been violated. The Ninth Circuit reversed.  The Supreme Court granted certiorari to resolve a split among the Court of Appeals on the question of whether an individual may sue a state for money damages in federal court for violation of the Act.  The Court affirmed the Ninth Circuit's decision.

Majority Opinion

Chief Justice Rehnquist delivered the opinion of the Court, in which justices O'Connor, Souter, Ginsberg, and Breyer joined.  The Court first addressed the Eleventh Amendment issue by examining whether Congress acted within its constitutional authority when it sought to abrogate the States' immunity for purposes of the FMLA's family leave provision.  The Court noted that while

Congress may not abrogate the States' sovereign immunity pursuant to its Article I power over commerce, that it may do so through a valid exercise if its  power to enact legislation under section 5 of the Fourteenth Amendment.  It further noted that Congress may enact, "so-called prophylactic legislation that proscribes facially constitutional conduct, in order to prevent and deter unconstitutional conduct."  

Noting that it is the Court, not Congress that defines the substance of constitutional guarantees, the Court cited City of Boerne in writing that, "Valid §5 legislation must exhibit 'congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.'"

The Court then went through an analysis of what level of scrutiny the Act must be examined under.  The Court applied a heightened scrutiny standard since the FMLA was passed to address a documented history of gender discrimination in the workplace.  In two recent cases involving claims of state immunity under the 11th Amendment, the Court had applied the lower rational basis standard, which only requires that States actions are 'rational' in order to pass constitutional muster.  In both cases (the Kimel case, which involved age discrimination, and the Garrett case, which involved disability-based discrimination), the state prevailed.  

After establishing the appropriate standard, the Court outlined the evidence Congress relied on to establish a pattern of constitutional violations on the part of states with regards to workplace discrimination, and concluded that, "[T]he States' record of unconstitutional participation in, and fostering of, gender-based discrimination in the administration of leave benefits is weighty enough to justify the enactment of the prophylactic §5 legislation."

The Court further distinguished the Hibbs case from City of Boerne, Kimel, and Garrett, which applied broadly to every aspect of state employer's operations, noting that the FMLA is, "narrowly targeted at the fault line between work and family - precisely where sex-based overgeneralization has been and remains strongest - and affects only one aspect of the employment relationship."  In closing, the Court also noted the general reasonableness of the Act, highlighting the fact that it only requires unpaid leave; that the employee have provided 1,250 hours of service within the last 12 months; that high ranking or sensitive positions are ineligible; and that employees must give 12 months advance notice of foreseeable leave.  Finally, the Court noted that the cause of action under the FMLA is a restricted one in that the "damages recoverable are strictly defined and measured by actual monetary losses, and the accrual period for backpay is limited by the Act's 2-year statute of limitations.  

Concurring Opinions

Justice Souter filed a concurring opinion, in which Ginsburg and Breyer joined.  Justice Stevens also filed an opinion concurring in judgment, but stated that, "The sovereign immunity defense asserted by Nevada is based on what I regard as the second Eleventh Amendment, which has its source in judge-made common law, rather than constitutional text."  He further stated that, "As long as it clearly expresses its intent, Congress may abrogate that common-law defense pursuant to its power to regulate commerce 'among the several states.'"

Dissenting Opinions

Justice Scalia filed a dissenting opinion.  In it he wrote:

Today's opinion for the Court does not even attempt to demonstrate that each one of the 50 States covered by 29 U.S.C. §2612(a)(1)(C) was in violation of the Fourteenth Amendment.  It treats "the States" as some sort of collective entity which is guilty or innocent as a body.  "[T]he States' record of unconstitutional participation in, and fostering of, gender based discrimination, it concludes, "is weighty enough just to justify the enactment of prophylactic §5 legislation."  

Justice Kennedy also filed a dissenting opinion in which Justices Scalia and Thomas joined.  Much of Kennedy's dissent focused on attacking the actual evidence of discrimination that Congress relied on in passing the FMLA, commenting that, "The Court is unable to show that States have engaged in a pattern of unlawful conduct which warrants the remedy of opening state treasuries to private suits."  He was particularly troubled by the fact that the evidence Congress considered was related to discriminatory practices of the private sector, not state employers.  He noted that, "While the evidence of discrimination by private entities may be relevant, it does not, by itself, justify the abrogation of States' sovereign immunity."  

Reaction from the Civil Rights Community

Judith L. Lichtman, President of the National Partnership for Women & Families, which served as co-counsel to Mr. Hibbs in the case, called the ruling, "a victory for the nearly five million state workers who deserve the same right to family and medical leave as other employees."  Lichtman also commented that, "This is especially good news because it breaks a disturbing string of eight major Supreme Court rulings that undermined congressional authority to protect constitutional rights."  She also remarked that, "The FMLA eliminates the discrimination and stereotypes that say that only women can be caregivers and only men can be breadwinners and FMLA moves us toward a time when both men and women can take care of their families without losing their jobs."