In Coleman v. Maryland Court of Appeals, 626 F.3d 187 (4th Cir. 2010), the Fourth Circuit joined five other appellate courts in holding that the self-care provision of the Family and Medical Leave Act, does not apply to the states because Congress did not properly abrogate the states’ Eleventh Amendment immunity. Despite the lack of any apparent Circuit split on the issue, the Supreme Court granted Coleman’s petition for a writ of certiorari to address the question of “[w]hether Congress constitutionally abrogated the states’ Eleventh Amendment Immunity when it passed the self-care provision of the Family and Medical Leave Act.” On March 20, 2012, the Supreme Court affirmed the Fourth Circuit’s decision by a 5-4 vote, clarifying that, while the family-care provisions of the FMLA validly abrogate the states’ sovereign immunity, the self-care provision does not.
Coleman was the Court’s third look at the FMLA, and its second look at the issue of immunity. The first FMLA case to get the Court’s attention was Ragsdale v. Wolverine Worldwide, Inc., 535 U.S. 81 (2002), where the Court rejected a 1995 DOL regulation that extended leave beyond the 12 week entitlement if the employer failed to notify the employee that leave would be treated as FMLA leave. The next year, in Nevada Dept. of Human Res. v. Hibbs, 538 U.S. 721 (2003), the Court considered whether Congress abrogated Eleventh Amendment immunity, but limited the ruling to the family care provisions of the Act.
The FMLA provision at issue in Coleman was section 2612(a)(1)(D), that permits leave “[b]ecause of a serious health condition that makes the employee unable to perform the functions of the position of such employee.”
Few facts were relevant to the case before the Court. Daniel Coleman was employed by the Court of Appeals of Maryland. Coleman alleged that when he requested sick leave, he was told that he would be terminated if he did not resign. Coleman sued for, among other things, violation of the FMLA. The District Court granted the State of Maryland’s motion to dismiss, holding that the FMLA claim was barred by Eleventh Amendment Immunity. Coleman appealed, and the Fourth Circuit affirmed on the same grounds: Congress did not validly abrogate the states’ immunity when it passed the FMLA self-care provision.
The FMLA and Eleventh Amendment Immunity
The Eleventh Amendment bars suit in federal court against a non-consenting state and any governmental units that are arms of the state unless Congress has abrogated the immunity. To do so, Congress must unequivocally declare its intent to abrogate and must act pursuant to a valid exercise of its power. Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 55 (1996).
The Supreme Court has held that while Congress cannot validly abrogate a state’s immunity from private suit under its Article I powers, it can do so under its Fourteenth Amendment, § 5 authority. Board of Trustees v. Garrett, 531 U.S. 356, 364 (2001). The Fourteenth Amendment provides that “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. Section 5 authorizes Congress to enact “appropriate legislation” to enforce these substantive guarantees. This section authorizes Congress not only to codify the Supreme Court’s holdings regarding the rights established by the Fourteenth Amendment, but also to prevent future violations of those rights. City of Boerne v. Flores, 521 U.S. 507, 518 (1997).
Although Congress may “enact prophylactic legislation prohibiting conduct that is ‘not itself unconstitutional,’ it may not substantively redefine Fourteenth Amendment protections.” Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 484-85 (4th Cir. 2005) (citing City of Boerne, 521 U.S. at 519). The Supreme Court has stated that, to ensure Congress abides by this distinction, “[t]here must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.” City of Boerne, 521 U.S. at 520.
As enacted in 1993, the FMLA authorized qualified employees to take up to 12 weeks of unpaid leave annually in four circumstances, three of which concern caring for family members: bearing and caring for a child, adopting or providing foster care for a child; and caring for a spouse, child, or parent with a serious health condition. 29 U.S.C. § 2612(a)(1)(A)-(C). The fourth circumstance is when “a serious health condition . . . makes the employee unable to perform the functions of [his] position.” Id. § 2612(a)(1)(D).
Congress subsequently amended the FMLA to also authorize leave because of an exigency arising out of the fact that an employee’s spouse, child, or parent is on covered active duty, or has been notified of an impending call to such duty in the armed forces. See National Defense Authorization Act (NDAA) for Fiscal Year 2008, Pub. L. No. 110-181, § 585, 122 Stat. 3 (2008) (codified at 29 U.S.C. § 2612(a)(1)(E)). The NDAA for 2009 further amended the FMLA’s servicemember leave requirements. Servicemember FMLA leave, either for a call to active duty or for caregiver leave, has not yet reached the federal courts on sovereign immunity grounds.
In Nevada Dept. of Human Res. v. Hibbs, 538 U.S. 721 (2003), the Court considered Eleventh Amendment immunity under the FMLA in 2003, following a string of lower court decisions that had created a split in the Circuits. Hibbs considered whether the FMLA’s third provision — care of a close family member — validly abrogated the states’ Sovereign immunity. Concluding that there was a valid abrogation of Sovereign immunity, the Court focused exclusively on the gender discrimination that motivated enactment of the FMLA.
The Court stressed the unique difference in discrimination between the way employers treated requests by men and women for family leave: “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.” The holding applied the “heightened level of scrutiny” afforded gender discrimination in such cases and found that the FMLA was “narrowly targeted at the fault line between work and family — precisely where sex-based over generalization has been and remains strongest.”
After Hibbs, every appellate court that considered the question of whether Congress validly abrogated Eleventh Amendment immunity in the self-care provision of the FMLA held that it did not. Nelson v. Univ. of Tex. at Dallas, 535 F.3d 318, 321 (5th Cir. 2008); Miles v. Bellfontaine Habilitation Ctr., 481 F.3d 1106 (8th Cir. 2008); Toeller v. Wisconsin Dep’t of Corr., 461 F.3d 871, 879 (7th Cir. 2006); Touvell v. Ohio Dep’t of Mental Retardation & Developmental Disabilities, 422 F.3d 392, 405 (6th Cir. 2005); and Brockman v. Wyoming Dep’t of Family Servs., 342 F.3d 1159, 1164 (10th Cir. 2003). Three state courts have found no valid abrogation of sovereign immunity. See, e.g., UTEP v. Herrera, 322 S.W.3d 192 (Tex. 2010); Nicholas v. Att’y Gen., 168 P.3d 809 (Utah 2007); Lizzi v. Wash. Metro. Area Transit Auth., 862 A.2d 1017 (Md. 2004)(pre-Hibbs). When faced with the question, the Third Circuit took different tack and avoided answering the question directly by holding that the defendant employer was not an arm of the state. Febres v. Camden Bd. of Educ., 445 F.3d 227, 231 (3d Cir. 2006). Ultimately, the Fifth Circuit held, however, that Nelson’s request for reinstatement was not barred by Eleventh Amendment immunity and that the district court erred in concluding otherwise. 535 F.3d at 324.
The Fourth Circuit’s Ruling on Sovereign Immunity in Coleman
After considering Hibbs and the decisions from the other circuits, the Fourth Circuit joined them in holding that Congress did not validly abrogate the states’ immunity, and concluded that the district court properly dismissed Coleman’s FMLA claim as barred by the Eleventh Amendment. “Absent a showing that the self-care provision is congruent and proportional to a Fourteenth Amendment injury that Congress enacted the provision to remedy,” said the Court, “Coleman is left to argue that we should simply evaluate the FMLA’s immunity abrogation as a whole rather than considering the self-care provision individually. But we know of no basis for adopting such an undifferentiated analysis or concluding that the Hibbs Court did so.”
The Supreme Court’s Decision
Coleman offered the Court a rare instance to decide a case simply on a matter of Constitutional interpretation, stripped of extraneous possible factual questions. Facts were unnecessary for the Court to consider the issue of “whether a state employee is allowed to recover damages from the state entity that employs him by invoking one of the provisions of a federal statute that, in express terms, seeks to abrogate the states’ immunity from suits for damages.” 2012 U.S. LEXIS 2315 at *6.
On March 20, 2012, Justice Kennedy delivered the opinion of the Court, joined by Chief Justice Roberts and Justices Alito and Thomas. Justice Thomas and Justice Scalia both wrote opinions concurring in judgment. Justice Ginsburg wrote a stinging dissent, which Justices Breyer, Sotomayor and Kagan joined.
Justice Kennedy (who had dissented in Hibbs) started his opinion by discussing the manner in which Congress is permitted to abrogate states’ immunity from monetary damages. First, Congress must make its intention clear that it intends to abrogate the states’ immunity. In this case, as in Hibbs, that issue was “not fairly debatable.” 2012 U.S. 2315 at *10, quoting Hibbs, 538 U.S. at 726.
That being the case, Justice Kennedy wrote, “[t]he question then becomes whether the self-care provision and its attempt to abrogate the states’ immunity are a valid exercise of congressional power under § 5 of the Fourteenth Amendment.” Justice Kennedy explained that this requires an assessment of the “evil” or “wrong” that Congress sought to address. Congressional response to this evil or wrong must be congruent and proportional and it must be aimed at “‘conduct transgressing the Fourteenth Amendment’s substantive provisions.’”
Justice Kennedy explained that the Court undertook a similar analysis in Hibbs when it held that employees are permitted to seek damages for a state’s violation of subsection (C), the family-leave provision. The rationale for permitting the abrogation in that case was the documented history of sex discrimination in administering family leave policies. Faced with the states’ record of sex discrimination in leave provisions, subsection (C) was “‘narrowly targeted at the fault line between work and family-precisely where sex-based over generalization has been and remains the strongest.’” According to Justice Kennedy and the Court, the same cannot be said about the self-care provisions at issue in this case.
After setting the stage for the analysis, Justice Kennedy systematically dismantled each of the three arguments set forth by Coleman that the self-care provision is a valid abrogation of the states’ sovereign immunity under the Eleventh Amendment. These arguments were:
1. The self-care provision standing alone addresses sex discrimination and sex stereotyping;
2. The provision is a necessary adjunct to the family-care provision sustained in Hibbs; and
3. The provision eases the burden on single parents.
Argument #1: Self-Care Provision Standing Alone: Justice Kennedy explained that, 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.” This belies any assertion by Coleman that the states have facially-discriminatory policies, or that neutral policies were administered in a discriminatory manner. Unlike leave policies in other instances, such as for the care of a family member, there was “scant evidence” in the record that women were more likely to take self-care leave than men, which would make it necessary for protection.”
Justice Kennedy continued by explaining that, lacking a history of sex-discrimination of stereotyping, the record demonstrated only that the self-care provision was enacted out of concern for the “economic burdens” on employees. The basis for the protection was illness, he stated, not sex.
Justice Kennedy acknowledged that the self-care provision permits women some additional coverage because it can be taken for pregnancy-related illnesses, but reasoned that the damages provision was not congruent or a proportional response to a constitutional violation. Because of the pervasiveness of State leave policies, and that government employees “presumably could take leave for pregnancy-related illnesses under the policies,” the state leave policies sufficiently protected employees. There is no need for a Congressional response; thus, any response was incongruent and not proportionate.
Argument #2: Adjunct to the Self-Care Provisions: Coleman argued that the self-care provision is a necessary adjunct to the family care provisions because the FMLA offers twelve weeks of leave for family and self-care combined, and women are more likely than men to take family leave. As a result, Coleman maintained, the self-care provision could reduce the difference between expected number of weeks of FMLA that different employees take. Put more simply, if women were more likely to take family-care, any self-care by men could offset the leave taken by women.
Justice Kennedy held that, simply because it could, does not mean it would. He pointed out that there were no Congressional findings in support of the self-care provision that suggested that men or women were more likely to take self-care or family leave, or that the self-care provision equalizes the expected amount of FMLA leave used. To the extent that it does, he stated, it is a de minimis equalization, as men were expected to only take five days of self-care leave per year.
Justice Kennedy also highlighted the inherent inconsistency between the first and second arguments raised by Coleman:
“In the first defense, the Court is told employers assume women take more self-care leave than men. In the second defense, the Court is told the self-care provision provides an incentive to hire women that will counteract the incentives created by the family-care provisions because employers assume women take more family-care leave than men. But if the first defense is correct, the second defense is wrong. In other words, if employers assume women take self-care leave more often than men (the first defense), a self-care provision will not provide an incentive to hire women. To the contrary, the self-care provision would provide an incentive to discriminate against women.”
Id. at *18 (citation omitted). In addition to these problems with Coleman’s argument, Justice Kennedy explained that there was little support in the record that Congress was motivated by the argument Coleman put forth when it enacted the self-care provisions. The Court needed more than “supposition and conjecture,” Justice Kennedy wrote, to subject the States to suits for damages for “violation of a provision (the self-care provision) that is a supposedly preventative step in aid of an already preventative step.” The “few fleeting references” in the record fell short.
Argument #3: Single Parents: In contrast to the treatment devoted to the first two arguments, Justice Kennedy’s holding regarding Coleman’s third argument is terse. Coleman claimed that the self-care provisions of the FMLA “helps single parents retain their jobs when they become ill.” This argument was premised on the fact that most single parents are women, therefore, attempting to tie it again to sex.
Justice Kennedy found that this, at most, directs that neutral leave restrictions not disparately impact women. In this manner, it is not directed at a pattern of constitutional violations. It is unlikely that these neutral policies, the Justice continued, are unconstitutional.
Concluding, Justice Kennedy noted that, although the plurality denied Coleman relief, there is nothing to prevent a state from abrogating its Eleventh Amendment Immunity and permitting suit. Similarly, plaintiffs in a position similar to Coleman may have state law avenues to explore.
The Concurrences of Justice Thomas and Justice Scalia
Justices Scalia and Thomas wrote concurring opinions. Justice Thomas agreed separately “only to reiterate [the] view that Hibbs was wrongly decided because the family-care provision is not sufficiently linked to a demonstrated pattern of unconstitutional discrimination by the States.”
Justice Scalia agreed in judgment only, but stated that, in his view, the Court should “adopt an approach that is properly tied to the text of [Section] 5 . . . .” In his view, Congress’s power under Section 5 should be limited to conduct that directly violates the Fourteenth Amendment and, “[f]ailng to grant state employees leave for the purpose of self-care- or any other purpose, for that matter- does not come close.”
Justice Ginsburg’s Dissenting Opinion
Justice Ginsberg opposed nearly every conclusion reached by Justice Kennedy. According to the dissent, the self-care provision “validly enforces the right to be free from gender discrimination in the workplace.” The dissent took a macro view of the FMLA — putting the self-care provision in context of a statute that “aims to protect the right to be free from gender based discrimination in the workplace.”
According to the dissent, the self-care provision, when viewed in the context of the legislative history, was responsive to the unconstitutional behavior of a well-documented pattern of discrimination against pregnant women. While the Pregnancy Discrimination Act prohibited blatant discrimination, the FMLA, according to the dissent, was a necessary corollary.
Much of the dissenting opinion focused on the gender discrimination associated with pregnancy and leave required for pregnancy-related illnesses. It argued that the plurality opinion “missed the point” when discussing the need for sex-based discrimination in the use of sick leave, based on what it viewed as the Congressional record supporting such discrimination.
The dissenting Justices found the abrogation of the States’ immunity to be appropriate and congruent. Congress’s concern was “solidly grounded in work-place realities” in enacting this section. It chastised the plurality for losing sight of what the dissent viewed as the real purpose behind the FMLA: “to make it feasible for women to work while sustaining family life.”
Practical Effects of Coleman
Some commentators have decried the decision as an assault on rights of government employees, but it is important to remember what is cited in the beginning of Justice Kennedy’s opinion: nearly ninety-five percent of these employees are covered by state leave laws. As a result, the practical effect of this decision on employees would appear to be minimal. They are likely to have a remedy available to them at state law, regardless of the FMLA protections.
Moreover, state employees are not without some remedial recourse under the FMLA. While the Court’s decision precludes them from obtaining monetary damages under the FMLA, it does not preclude non-monetary injunctive relief. Governmental employers do not have carte blanche to deny employees rights granted by the FMLA’s self-care provision.
Additionally, employees may have redress because many states are willing to forgo their Eleventh Amendment rights with respect to litigation of this kind. Justice Kennedy’s opinion hinted at this option. Indeed, the State of Maryland agreed that Coleman should have a right to some redress as a matter of public policy.
Perhaps the most important effect of this decision, however, is that it is another example of the Supreme Court’s continued division regarding the role of state government within our federal system. Too often, the distinction between state and federal government is blurred and misunderstood. The majority of the Roberts Court, has been inclined to protect the rights of sovereign states; restraining the ability of Congress to intrude on their rights.