On March 20th, the Supreme Court issued it’s opinion in Coleman v. Md. Ct. App., holding that Congress lacked the power to abrogate state immunity from suits for damages for violations of the FMLA’s self-care provisions.
The FMLA creates a private right of action for equitable relief and damages “against any employer (including a public agency) in any Federal or State court.” 29 USC 2617(a)(2). The FMLA states that an employee is entitled up to 12 weeks of unpaid leave per year for:
- [“family-care provisions” (A), (B), and (C)] (A) the care of a newborn son or daughter; (B) the adoption or foster-care placement of a child; (C) the care of a spouse, son, daughter, or parent with a serious medical condition; and
- [“self-care provision” (D)] (D) the employee’s own serious health condition when the condition interfere with the employee’s ability to perform at work.
The Coleman case deals with (D), dubbed the “self-care provision” by the Supreme Court. The Supreme Court, written by Justice Kennedy, ruled that the waiver of States’ immunity was not present at the self-care provision because the legislature was not concerned with sex-based discrimination with respect to the self-care provision; unlike in the family-care provisions. See, e.g., Nevada Dep’t of Human Resources v. Hibbs, 538 US 721 (2003) (upholding waiver of States’ immunity with respect to the family-care provision (C) because States had family-leave policies that differentiated on the basis of sex).
The Supreme Court relied on amicus curiae brief citing to the BLS which showed that when the FMLA was enacted, 95% of full-time state and local employees were covered by paid sick leave plans and 96% of such employees enjoyed short-term disability protection. The Supreme Court concluded based on the record that men and women were out on medical leave approximately equally. Citing H.R. Rep. No. 101-28, pt. 1, p. 15 (1989). Further, the legislative history revealed a concern for economic burdens and not sex discrimination. Citing S.R. Rep. No. 103-3, pp. 11-12 (1993); H.R. Rep. No. 101-28, p. 23 (1989). Consequently, the Supreme Court dismissed the case on the grounds that the self-care provision was not directed at an identified pattern of gender-based discrimination and was not congruent and proportional to any pattern of sex-based discrimination.
The Supreme Court also shot down the argument that the self-care provision is a necessary adjunct to the family-care provisions. Justice Kennedy highlighted that Congress made no findings or received any testimony that suggested that the availability of self-care leave equalized the expected amount of FMLA leave men and women will take. Justice Kennedy pointed that there was no evidence that women took more leave than men, or that employers assumed that women would take more leave time than men.
Lastly, the Supreme Court rejected petitioner’s argument regarding the disparate impact effect the leave restrictions would have on women. The Supreme Court noted that the provision must be directed at a pattern of constitutional violations.