State Employer May Be Liable for Money Damages for Violating Employee’s Rights Under Federal Family and Medical Leave Act
In Nevada Dept. of Human Resources v. Hibbs (2003) ___ U.S. ___, 123 S.Ct. 1972, 155 L.Ed.2d 953, the Court held that state employees may recover money damages from the state for violating the family care provision of the Family and Medical Leave Act (FMLA; 29 U.S.C., §2612(a)).
(a) Congress may abrogate state sovereign immunity in federal court if it makes this intention clear in the statutory language and acts pursuant to a valid exercise of its power under §5 of the Fourteenth Amendment. Here, Congressional intent is clear. 29 U.S.C., §2617(a)(2) permits employees to seek damages against any employer, including a public agency (which includes the state), in any federal or state court of competent jurisdiction. Thus, the case turns on “whether Congress acted within its constitutional authority when it sought to abrogate the States’ immunity” for purposes of family leave provision. (123 S.Ct. 1976, 1977, 155 L.Ed.2d 962.)
(b) Section 5 of the Fourteenth Amendment grants Congress the power to enact “appropriate legislation” to enforce equal protection of the laws. This power includes the authority to enact “legislation that proscribes facially constitutional conduct, in order to prevent and deter unconstitutional conduct.” (123 S.Ct. 1977, 155 L.Ed.2d 963.) The aim of the FMLA is to protect an employee’s right to be free from gender-based discrimination. Unlike the age and disability discrimination involved in Kimel v. Florida Bd. of Regents (2000) 528 U.S. 62, 120 S.Ct. 631, 145 L.Ed.2d 522, and Board of Trustees of University of Alabama v. Garrett (2001) 531 U.S. 356, 121 S.Ct. 955, 148 L.Ed.2d 866, a gender-based classification is subject to heightened scrutiny. (123 S.Ct. 1978, 155 L.Ed.2d 963.)
(c) The FMLA meets the heightened scrutiny requirement:
(1) The classification serves an important governmental interest. Congress had evidence of a long, extensive, and persistent history of sex discrimination in the administration of leave benefits that justified passage of the FMLA. (123 S.Ct. 1981, 155 L.Ed.2d 967.) Although many states have enacted some form of family-care leave laws, many are inadequate. For example, in 7 states the laws only apply to women; in 12 states there is no provision for caring for a sick child or family member; and in many states there is no statutorily guaranteed right to take the leave. (123 S.Ct. 1980, 1981, 155 L.Ed.2d 966, 967.)
(2) The discriminatory means employed is substantially related to the achievement of the objective. “By creating an across-the-board, routine employment benefit for all eligible employees, Congress sought to ensure that family care leave would no longer be stigmatized as an inordinate drain on the workplace caused by female employees, and that employers could not evade leave obligations simply by hiring men. By setting a minimum standard of family leave for all eligible employees, irrespective of gender, the FMLA attacks the formerly state-sanctioned stereotype that only women are responsible for family caregiving, thereby reducing employers’ incentives to engage in discrimination by basing hiring and promotion decisions on stereotypes.” (123 S.Ct. 1982, 1983, 155 L.Ed.2d 969.) The FMLA is narrowly tailored to address the targeted unconstitutional behavior. It requires only unpaid leave of limited duration and excludes elected state officials, their staffs, and appointed policymakers. (123 S.Ct. 1983, 155 L.Ed.2d 970.)
Four justices concurred in two opinions (123 S.Ct. 1984, 155 L.Ed.2d 971), and three justices dissented in two opinions (123 S.Ct. 1985, 155 L.Ed.2d 972).
On federal authorization to bring action for damages against state, see 7 Summary (9th), Constitutional Law, §33.
On California Family Rights Act, see 8 Summary (9th), Constitutional Law, Supp., §763A et seq.
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