(CN) – States have sovereign immunity that protects them from facing lawsuits for damages under a provision of federal law that offers employees unpaid leave to care for their own serious illnesses, the Supreme Court ruled Tuesday.
Though he did not join in the majority, Justice Antonin Scalia tipped the scales for the divided court with an separate opinion concurring in the judgment.
The Family and Medical Leave Act of 1993 (FMLA) entitles eligible employees to take up to 12 work weeks of unpaid leave per year for reasons such as childbirth, adoption and serious illness.
Employers, including public agencies, may be liable under the act, but Daniel Coleman filed a federal complaint against his employer, the Maryland Court of Appeals, after it threatened to fire him when he requested sick leave to care for his own illness. The District of Maryland dismissed the suit on the basis of sovereign immunity, and Coleman brought his case to the Supreme Court after the 4th Circuit affirmed.
The justices proved similarly unsympathetic Tuesday.
“Under this court’s precedents, more is required to subject unconsenting states to suits for damages, particularly where, as here, it is for violations of a provision (the self-care provision) that is a supposedly preventive step in aid of already preventive provisions (the family-care provisions),” Justice Anthony Kennedy wrote for the majority.
“The ‘few fleeting references’ to how self-care leave is inseparable from family-care leave fall short of what is required for a valid abrogation of states’ immunity from suits for damages.”
Coleman’s attempts to tie self-care leave to gender discrimination were unavailing.
“Documented discrimination against women in the general workplace is a persistent, unfortunate reality and, we must assume, a still prevalent wrong,” Kennedy wrote. “An explicit purpose of the Congress in adopting the FMLA was to improve workplace conditions for women. But states may not be subject to suits for damages based on violations of a comprehensive statute unless Congress has identified a specific pattern of constitutional violations by state employers.”
Justice Clarence Thomas, who joined the majority with Chief Justice John Roberts and Justice Samuel Alito, wrote a separate concurring opinion to state that the “family-care provision is not sufficiently linked to a demonstrated pattern of unconstitutional discrimination by the states.”
That holding contradicts the court’s 2003 resolution of Nevada Department of Human Resources v. Hibbs.
Justice Ruth Bader Ginsberg authored the dissent on behalf of Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan. It states that the self-care provision of FMLA gives workers the right to be free from gender discrimination.
“Self-care leave, I would hold, is a key part of Congress’ endeavor to make it feasible for women to work and have families,” Ginsburg wrote. “By reducing an employer’s perceived incentive to avoid hiring women, [the provision] lessens the risk that the FMLA as a whole would give rise to the very sex discrimination it was enacted to thwart. The plurality offers no legitimate ground to dilute the force of the act.”
Breyer, Sotomayor and Kagan reserved participation in a footnote to the dissent that says Congress has authority under the commerce clause, and Section Five of the 14th Amendment, to abrogate state sovereign immunity.
Scalia’s opinion says that both the dissent and majority reached fitting decisions because they relied on a test that “makes no sense.”
“Which in turn is because that flabby test is ‘a standing invitation to judicial arbitrariness and policy-driven decisionmaking,'” Scalia wrote, quoting a dissent he wrote in 2004 for Tennessee v. Lane. “Moreover, in the process of applying (or seeming to apply) the test, we must scour the legislative record in search of evidence that supports the congressional action. This grading of Congress’s homework is a task we are ill suited to perform and ill advised to undertake.”