FMLA validly abrogates the states' Eleventh Amendment immunity

Law Reporter, May 2002

EMPLOYMENT LAW

FMLA validly abrogates the states' Eleventh Amendment immunity.

Hibbs v. Department ofHuman Res., 273 F.3d 844 (9th Cir. 2001).

The Ninth Circuit Court of Appeals held that the Family and Medical Leave Act (FMI-A), 29 U.S.C. 2601-2654, validly abrogates the states' Eleventh Amendment immunity from suit by private parties in federal court. The FMLA allows employees up to 12 weeks of unpaid leave to care for a sick family member.

Here, Hibbs, an employee of the welfare division of Nevada's human resources department, took FMLA leave to care for his ailing wife. He was fired when he did not return to work after he had allegedly exhausted his leave.

Hibbs sued the department, among others, claiming that the welfare division had misapplied the FMLA by counting his leave under the statute concurrently with other leave he was taking. The trial court granted defendants summary judgment.

Reversing, the Ninth Circuit noted that Congress can abrogate the states' Eleventh Amendment immunity through laws enacted under 5 of the Fourteenth Amendment, which empowers Congress to enforce the amendment by appropriate legislation. The court distinguished federal circuit court cases holding that the FMLA was not valid 5 legislation, noting that only one of those cases involved the provision for leave to care for a sick family member. The rest either did not state which provision of the FMIA was at issue or involved only the provision for leave occasioned by the employee's own illness. The court said this was a significant difference because the provision at issue here can more plausibly be defended as an attempt to remedy gender discrimination.

Because gender discrimination is subject to "heightened scrutiny," the court reasoned, 5 legislation that is intended to remedy or prevent gender discrimination is presumptively constitutional. As a result, the burden is on the challenger of the legislation to prove that states have not engaged in a pattern of unconstitutional conduct. Here, the court found, the state failed to show that there is not a widespread pattern of gender discrimination by states regarding the granting of leave to employees to care for sick family members or a historical record of state enforcement of stereotypical family roles.

Accordingly, the court remanded.

Plaintiffs Counsel

Treva J. Hearne, Reno, Nev.