Friday, July 1, 2011

SCOTUS, FMLA and State Immunity - COTW #47

The Eleventh Amendment of the U.S. Constitution prohibits federal lawsuits against unconsenting states (or their governmental units) unless Congress has abrogated the immunity. So, what happens when an employee works for a state... let's say the Maryland Court of Appeals... and he gets fired, allegedly for taking FMLA leave? That's the setup for this Case of the Week.

The case is Coleman v. Maryland Court of Appeals (4th Cir. opinion), and as I blogged on Monday, the Supreme Court just granted certiorari to hear it next term. So, is the state court immune from suit or not? Let's start with the test for determining whether Congress abrogated the state's immunity:
  1. "Congress must unequivocally declare its intent" to abrogate the immunity; and
  2. Congress must be acting pursuant to a valid (Constitutional) exercise of its power.
How does that work here in FMLA-world? Well, one valid exercise of Congress's power is its Fourteenth Amendment power to enforce the Equal Protection Clause. In 2003, the Supreme Court held that Congress did abrogate state sovereign immunity with regard to the FMLA's family-care provisions (providing leave to care for a family member with a serious health condition). Nevada Dept. of Human Resources v. Hibbs, 538 U.S. 721 (2003). Great news for the Maryland Court employee, right?

Not so fast. The 2003 decision was based in part on the fact that the FMLA is "narrowly targeted at the faultline between work and family—precisely where sex-based overgeneralization has been and remains strongest." In other words, the FMLA family-care provisions battle discrimination, consistent with the 14th Amendment. The Maryland Court employee, however, took leave to care for himself. Thus, the sex-based discrimination regarding family responsibilities is not really at play. The 4th Circuit agreed with four other Circuit Courts and held that Congress did not validly abrogate state sovereign immunity with regard to the self-care provisions of the FMLA.  The Maryland Court employee was therefore barred from bringing his FMLA claim against his employer.

Now, the Supreme Court will take a look at the case and answer (per the Petition to the Court): "Whether Congress constitutionally abrogated states’ Eleventh Amendment immunity when it passed the self-care leave provision of the Family and Medical Leave Act."

One supercool aspect of this case is that the Counsel of Record for the employee is Penn State - Dickinson School of Law Prof. Michael Foreman, right down the street from me here in State College, PA. Even supercooler is that law students here are working on the case as part of Penn State Law’s Civil Rights Appellate Clinic. Read more at the Daily Collegian: Law Students Prepare for Supreme Court Case.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.