March 21, 2012

Supreme Court Ruling on Family & Medical Leave Act “Appalling and Dangerous,” Says Deborah Ness

The Supreme Court ruled 5-4 on Tuesday that state government workers may not sue their employers for money for violating a part of the federal Family and Medical Leave Act dealing with personal sick leave.

Debra L. Ness, president of the National Partnership for Women and Families, which drafted and fought to pass the FMLA, called the decision “an appalling and dangerous ruling that simply cannot stand.”

The case was brought by Daniel Coleman, a Maryland state court employee who was fired after requesting a 10-day medical leave. The state argued that federal law could not be applied because states, as sovereigns, are generally immune from lawsuits seeking monetary damages.

The Family and Medical Leave Act of 1993 entitles eligible employees 12 weeks of job-secured leave during any 12-month period for: (A) the birth of a child and to care for the newborn child within one year of birth; (B) the adoption or foster care of a child and to care for the newly placed child within one year of placement; (C) care for a spouse, child, or parent with a serious health condition; (D) a serious health condition that makes the employee unable to perform the functions of the position.

The case hinged on whether the sick-leave provision addressed gender bias. Justice Anthony Kennedy, who wrote the majority opinion, said it did not. He was joined by Chief Justice John Roberts and Justices Samuel Alito and Clarence Thomas. Justice Antonin Scalia agreed with the judgment but did not join Kennedy’s opinion, excerpted below:

Without widespread evidence of sex discrimination or sex stereotyping in the administration of sick leave, it is apparent that the congressional purpose in enacting the self-care provision is unrelated to these supposed wrongs. The legislative history of the self-care provision reveals a concern for the economic burdens on the employee and the employee’s family resulting from illness-related job loss and a concern for discrimination on the basis of illness, not sex. [...] It is true the self-care provision offers some women a benefit by allowing them to take leave for pregnancy-related illnesses; but as a remedy, the provision is not congruent and proportional to any identified constitutional violations.

So since they found no evidence of discrimination or sex stereotyping, the majority found no reason to lift the usual protections against suing a state.

Justice Ruth Bader Ginsburg wrote the dissenting opinion and was joined by Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan. From the dissent:

The FMLA’s purpose and legislative history reinforce the conclusion that the FMLA, in its entirety, is directed at sex discrimination. Indeed, the FMLA was originally envisioned as a way to guarantee—without singling out women or pregnancy—that pregnant women would not lose their jobs when they gave birth. The self-care provision achieves that aim.

It goes on to provide an interesting history of the development of the FMLA.

“The best way to protect women against losing their jobs because of pregnancy or childbirth, Congress determined, was not to order leaves for women only, for that would deter employers from hiring them,” said Ginsburg, who took the unusual step of summarizing the dissent from the bench, signaling a major disagreement. “Instead, Congress adopted leave polices from which all could benefit.”

Ness, whose organization led a group of 10 civil and workers’ rights organizations in filing a friend-of-the-court brief in the Coleman case, was outspoken in her criticism of the court’s decision:

Justice Ginsburg noted that “[t]he plurality pays scant attention to the overarching aim of the FMLA: to make it feasible for women to work while sustaining family life. Over the course of eight years, Congress considered the problem of workplace discrimination against women, and devised the FMLA to reduce sex-based inequalities in leave programs. The self-care provision is a key part of that endeavor, and in my view, a valid exercise of congressional power….”

Even Justice Kennedy’s opinion acknowledged that “[d]ocumented discrimination against women in the general workplace is a persistent, unfortunate reality, and, we must assume, a still prevalent wrong. An explicit purpose of the Congress in adopting the FMLA was to improve workplace conditions for women.”

Today’s ruling underscores how tenuous the rights of workers are in this country, and the urgent imperative for the Senate to confirm only those justices and judges who have a demonstrated commitment to equal rights under the law and a real understanding of the impact of their rulings on women, workers and others who struggle to make ends meet.

For more information, view the Kevin Russell’s coverage at SCOTUSblog, including Kevin Russell’s recap of the oral arguments.

Plus: Earlier this year, Judith Lichtman, a National Partnership for Women and Families senior advisor, presented seven specific recommendations to the U.S. Equal Employment Opportunity Commission (EEOC) on what federal agencies can do in response to discrimination based on pregnancy and caregiving. View her full testimony (pdf).


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