The Supreme Court

Supporting Family Leave

The Supreme Court softened its stance on state immunity from discrimination suits when it ruled in favor of a Nevada state employee, William Hibbs. Hibbs sued the Nevada Department of Human Resources when he was denied 12 weeks leave under the Family and Medical Leave Act of 1993 (FMLA) to care for his wife, who was recovering from neck surgery and other injuries related to a car accident.

Hibbs first asked for the leave in April and May of 1997 and was granted the right to use that leave intermittently as needed between May and December 1997. Hibbs used it as needed until August 5, 1997, after which he did not return to work. In October 1997 the state informed him he had exhausted his FMLA leave and that he must report to work by November 12, 1997. When Hibbs did not return to work on that date he was fired.

Hibbs sued the state in district court seeking damages. The district court ruled in favor of the state on the grounds that it was protected by the Eleventh Amendment from being sued and that Hibbs' Fourteenth Amendment rights had not been violated. Hibbs appealed to the 9th Circuit Court, which reversed the district court. The state then appealed the case to the Supreme Court.

Most expected the Supreme Court would continue on its path of protecting states' rights and were surprised by the Court's May 27, 2003, upholding the 9th Circuit Court and ruling in favor of Hibbs against the state. Chief Justice Rehnquist wrote the 6 to 3 opinion of the court and was joined by Justices O'Connor, Ginsburg, Breyer, and Souter. In addition Souter filed a concurring opinion that was joined by Ginsburg and Breyer. Stevens filed a separate concurring opinion. The dissenting opinion was written by Kennedy, who was joined by Scalia and Thomas. Scalia also wrote his own dissenting opinion.

In writing for the Court, Rehnquist said:

• “The FMLA aims to protect the right to be free from gender-based discrimination in the workplace. We have held that statutory classifications that distinguish between males and females are subject to heightened scrutiny. … For a gender-based classification to withstand such scrutiny, it must 'serv[e] important governmental objectives,' and 'the discriminatory means employed [must be] substantially related to the achievement of those objectives.' … The State's justification for such a classification 'must not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females.' …
• “Stereotypes about women's domestic roles are reinforced by parallel stereotypes presuming a lack of domestic responsibilities for men. Because employers continued to regard the family as the woman's domain, they often denied men similar accommodations or discouraged them from taking leave. These mutually reinforcing stereotypes created a self-fulfilling cycle of discrimination that forced women to continue to assume the role of primary family caregiver, and fostered employers' stereotypical views about women's commitment to work and their value as employees. Those perceptions, in turn, Congress reasoned, lead to subtle discrimination that may be difficult to detect on a case-by-case basis …
• “By creating an across-the-board, routine employment benefit for all eligible employees, 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 formerly state-sanctioned 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.”

In his dissent, Justice Kennedy supported the right of states to design their own benefits plans:

• “If Congress had been concerned about different treatment of men and women with respect to family leave, a congruent remedy would have sought to ensure the benefits of any leave program enacted by a State are available to men and women on an equal basis. Instead, the Act imposes, across the board, a requirement that States grant a minimum of 12 weeks of leave per year … This requirement may represent Congress' considered judgment as to the optimal balance between the family obligations of workers and the interests of employers, and the States may decide to follow these guidelines in designing their own family leave benefits. It does not follow, however, that if the States choose to enact a different benefit scheme, they should be deemed to engage in unconstitutional conduct and forced to open their treasuries to private suits for damages.
• “Well before the federal enactment, Nevada not only provided its employees, on a gender-neutral basis, with an option of requesting up to one year of unpaid leave, but also permitted, subject to approval and other conditions, leaves of absence in excess of one year … To be sure, the Nevada scheme did not track that devised by the Act in all respects. The provision of unpaid leave was discretionary and subject to a possible reporting requirement … A congruent remedy to any discriminatory exercise of discretion, however, is the requirement that the grant of leave be administered on a gender-equal basis, not the displacement of the State's scheme by a federal one. The scheme enacted by the Act does not respect the States' autonomous power to design their own social benefits regime.”

I would bet most companies would also like to be exempt from the FMLA, so they could design their own “social benefits regime.” In fact, before the FMLA was passed into law, President George Bush, Sr. vetoed it twice calling it a “costly government mandate” that would result in lost jobs, reduce worker benefits and American productivity, and make it difficult to compete internationally. After Bill Clinton took office, the FMLA was the first major piece of legislation enacted during his administration.

Interestingly the current President George Bush asked his Justice Department to write a brief in support of Hibbs. In the brief, Bush's Justice Department wrote, “This nation has a lengthy and regrettable history of discrimination on the basis of gender. For generations, state laws and conduct relegated women to a position of social, cultural, economic, and political inferiority.”

Another even more shocking ruling by the Supreme Court during its 2003 session is the next case I'll discuss, Lawrence v. Texas.

Excerpted from The Complete Idiot's Guide to The Supreme Court © 2004 by Lita Epstein, J.D.. All rights reserved including the right of reproduction in whole or in part in any form. Used by arrangement with Alpha Books, a member of Penguin Group (USA) Inc.

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