State employees may sue state in federal court for failure to provide leave under Family and Medical Leave Act

Law Reporter, Aug 2003

Nevada Dep't of Human Res. v. HMs, 123 S. Ct. 1972 (2003).

The U.S. Supreme Court held that a state employee may sue a state in federal court to recover damages for the state's failure to comply with the family-care provision of the Family and Medical Leave Act (FMLA), 29 U.S.C. [sec]2612(a)(1)(C).

Here, Hibbs, a Nevada state employee, sued the state in federal court over his former employer's denial of leave to care for his ailing wife. Plaintiff alleged defendant violated the FMLA. The trial court awarded defendant summary judgment on the ground that plaintiff's claim was barred by the Eleventh Amendment. Plaintiff appealed, and the Ninth Circuit Court of Appeals reversed.

Affirming the Ninth Circuit, the Court noted that Congress may abrogate the Eleventh Amendment's provision of immunity if it makes its intention to do so unmistakably clear in the language of the statute, and acts pursuant to a valid exercise of its power under [sec] 5 of the Fourteenth Amendment.

Here, Congress's intent is not debatable, the Court found. The FMLA provides that employees may seek damages "against any employer (including a public agency) in any federal or state court of competent jurisdiction." Congress has defined "public agency" to include both the government of a state and its agencies.

The Court then considered the question of whether Congress had acted within its constitutional authority when it sought to abrogate the states' immunity for purposes of the FMLA's family leave provision. Congress may enact prophylactic legislation-proscribing facially constitutional conduct-in order to prevent and deter unconstitutional conduct, the Court noted.

Here, the FMLA aims to protect the right to be free from sex-based discrimination in the workplace. The court found that the states' record of unconstitutional participation in, and fostering of, sex-based discrimination in the administration of leave benefits is weighty enough to justify the enactment of prophylactic legislation under [sec] 5 of the Fourteenth Amendment.

The Court contrasted this finding with cases in which it examined the states' conduct with regard to age- or disability-based distinctions. Under equal protection case law, discrimination on these bases is judged on a lower, "rational basis" standard-not the heightened standard applicable to discrimination on the basis of sex, the Court noted. In order to impugn the constitutionality of state discrimination against the elderly or disabled, the Court said, Congress needed to identify a widespread pattern of irrational reliance on these criteria but failed to do so.

In this case, however, because the standard for demonstrating the constitutionality of a sex-based classification is more difficult to meet-as it must serve "important governmental objectives" and be "substantially related" to the achievement of those objectives-it was easier for Congress to show a pattern of state constitutional violations. The Court concluded that the family-care provision of the FMLA is congruent and proportional to its remedial object, and can be understood as responsive to, or designed to prevent, unconstitutional behavior. It is thus a valid exercise of power under [sec] 5 of the Fourteenth Amendment.

Plaintiff's Counsel

Cornelia T. L. Pillard,

Judith L. Lichtman,

Jodi Grant,

Renuka E. Raofield,

Jonathan J. Frankel,

Polly B. Smothergill, and

Kelli H. Ferry, all of Washington, D.C.

Treva J. Hearne, Reno, Nev.