|State employees can sue in federal court to enforce
their rights under the FMLA, the U.S. Supreme Court
ruled May 27 by a 6-3 majority.
The decision is a surprising departure from the
Court’s line of cases expanding states’ rights at
the expense of federal power. The majority decided that
Congress had the authority to remedy past gender
discrimination by mandating 12 weeks of unpaid leave for
state employees to care for newborn or adopted children,
seriously ill family members or themselves, the same
benefit private-sector workers have under the FMLA.
Departure From Prior Rulings
The case was brought by Nevada Department of Human
Resources employee William Hibbs, who was fired after
taking FMLA leave to care for his ailing wife. Hibbs was
granted intermittent FMLA leave, which ran concurrently
with catastrophic leave provided to agency employees
When Hibbs did not return at the end of his FMLA
leave, he was given a written reprimand and, after a
hearing, fired. Hibbs sued under the FMLA, but Nevada
insisted he could not sue the state in federal court
without its consent.
That same argument was used to win earlier cases by
other states under the Age Discrimination in Employment
Act (Kimel v. Florida Board of Regents, 528 U.S.
62 (2000)) and the employment provisions of the ADA (Board
of Trustees of the University of Alabama v. Garrett,
531 U.S. 356 (2001)). Although Chief Justice William
Rehnquist joined the majority in the former decision and
wrote the latter, he rejected Nevada’s argument in
There was ample evidence of past gender
discrimination against men as well as women in
employment when family responsibilities conflicted with
work, he wrote in the majority opinion. For example, in
1991, 15 states provided women up to one year of
extended maternity leave, while only four provided men
the same time off.
“This and other differential leave policies were
not attributable to any differential physical needs of
men and women, but rather to the pervasive sex-role
stereotype that caring for family members is women’s
work,” the Court said. By enacting the FMLA, Congress
“sought to ensure that family-care leave would no
longer be stigmatized as an inordinate drain on the
workplace by female employees, and that employers could
not evade leave obligations simply by hiring men.”
Congress could override states’ immunity from being
sued by individuals in federal court in this instance
partly because Congress has greater authority to protect
readily identifiable groups such as men and women from
The heightened deference given by the Court to laws
prohibiting gender discrimination is not afforded to
statutes concerning age or disability discrimination.
Moreover, the FMLA more narrowly targeted only leave
rather than all aspects of the employment relationship,
as was the case with the Age Discrimination in
Employment Act and Title I of the ADA. In addition, the
FMLA required only unpaid leave and its damages were
proportional to the law’s remedial purpose, the Court
stated, noting that the only damages available to FMLA
plaintiffs are actual, rather than punitive, monetary
losses (Nevada Department of Human Resources v. Hibbs,
2003 WL 21210426 (U.S.)).
The Court’s ruling is “a great victory for state
workers,” said Tracey Glover, policy counsel with the
National Partnership for Women and Families. There are 5
million state workers who would not have been able to
enforce their rights in federal court had the Court gone
the other way.
Lower courts have issued conflicting decisions about
whether state employers may be sued in federal court by
their workers. States in some parts of the country may
have felt they did not have to comply, Glover said.
This ruling will alert state employers nationwide
that they have to comply with the FMLA, Glover stated.
Tom Sargent, press secretary for the Nevada attorney
general’s office, expressed disappointment over the
decision. He characterized it as especially
disappointing in light of Nevada’s generous leave
policy. “In Hibbs’ case, our policy was twice as
generous” as the FMLA.
The Supreme Court ruling is not the end of the case.
The Court sent the case back to a lower court for
further proceedings, which Nevada is looking forward to,
This article originally appeared in the June 2003
issue of The Leave & Disability Coordination
Handbook by Thompson Publishing Group, www.thompson.com/libraries/leave.