The Court had previously held in Nevada Dept. of Human Resources v. Hibbs, 538 U. S. 721 (2003) that the Eleventh Amendment was abrogated for the FMLA’s family-care provisions. “In enacting the FMLA, Congress relied upon evidence of a well-documented pattern of sex-based discrimination in family-leave policies. States had facially discriminatory leave policies that granted longer periods of leave to women than to men.” However, “[t]he same cannot be said for requiring the States to give all employees the opportunity to take self-care leave.” Moreover, “what the family-care provisions have to support them, the self-care provision lacks, namely evidence of a pattern of state constitutional violations accompanied by a remedy drawn in narrow terms to address or prevent those violations.”
When the FMLA was enacted, “ninety-five percent of full-time state- and local- government employees were covered by paid sick leave plans and ninety-six percent of such employees likewise enjoyed short-term disability protection. . . . The evidence did not suggest States had facially discriminatory self-care leave policies or that they administered neutral self-care leave policies in a discriminatory way. And there is scant evidence in the legislative history of a purported stereotype harbored by employers that women take self care leave more often than men. Congress considered evidence that “men and women are out on medical leave approximately equally.” H. R. Rep. No. 101–28, pt. 1, p.15 (1989) (hereinafter H. R. Rep.). Nothing in the record shows employers formulated self-care leave policies based on a contrary view. 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 Court also rejected the argument that it would have a disparate impact on women to deny them FMLA protection in federal court. “Although disparate impact may be relevant evidence of . . . discrimination . . . such evidence alone is insufficient [to prove a constitutional violation] even where the Fourteenth Amendment subjects state action to strict scrutiny.”
Justice Scalia joined in judgment only because he felt the Court’s test under § 5 of the Fourteenth Amendment is too subjective to be useful and could be applied by either the plurality or the dissent to obtain different results. Instead, he advocated that Congressional power under § 5 should be limited to remedy conduct that itself violates the Fourteenth Amendment. “Failing to grant state employees leave for the purpose of self-care—or any other purpose, for that matter—does not come close.”
NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.
