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 this case.

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 discrimination.

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.)).

Millions Affected

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, Sargent concluded.

This article originally appeared in the June 2003 issue of The Leave & Disability Coordination Handbook by Thompson Publishing Group, www.thompson.com/libraries/leave.