Dems Use Family Leave Case To Criticize Court's 'Activism'

By Robert B. Bluey | July 7, 2008 | 8:04 PM EDT

( - After the U.S. Supreme Court heard arguments Wednesday in a case testing the Family Medical Leave Act, two Senate Democrats immediately assailed the court's conservative justices for rewriting federal statutes.

Sens. Chuck Schumer (D-N.Y.) and Christopher Dodd (D-Conn.) will not know the outcome of the case for months, but they used the occasion to criticize past rulings that favor states' rights and also said they would carefully scrutinize President Bush's judicial nominees on such issues.

"Today's case shows that the debate over who should be a judge and what their views are affects everyday families throughout America," Schumer said. "If the Family Medical Leave Act is thrown out, millions of families will suffer when they have a loved one who is sick."

While the Supreme Court has been asked to decide if states are immune from lawsuits under the family leave law, known as FMLA, liberals have based their concern on similar cases involving the Americans with Disabilities Act and the Age Discrimination in Employment Act. In both of those cases, the court said states were immune from lawsuits by individuals.

Inside the court, Nevada's deputy attorney general argued that the FMLA, which was signed by President Clinton in 1993 after eight years of debate and two presidential vetoes, does not give the nation's 5 million state employees the right to sue their employer, in this case Nevada's welfare office.

But Dodd said afterward that Nevada's argument carries little weight since Congress explicitly said state employers enjoy the same benefits as individuals working in the private sector.

"Congress clearly wrote into this statute language that very specifically said that states and employees of the states would be covered," Dodd said. "If this court, by whatever margin, decides to strip the language from the statute, that is legislating in this building. That is an activism on the part of the Supreme Court that has been unseen for years and years."

Schumer added: "This is another progression in judicial activism. The gradual usurpation of this court's desire to take over what should be done across the street in Congress is getting more and more worrisome."

During oral arguments, Nevada Deputy Attorney General Paul G. Taggart said Congress does not have the authority to create broad statutes like the FMLA and then force state governments to comply. Taggart said states, not the federal government, already had adequate laws on the books addressing family leave.

Justice Stephen Breyer engaged in a number of contentious exchanges with Taggart about sex discrimination, saying several times he did not think Nevada or any other state had completely or adequately eliminated that form of discrimination in the workplace.

"Family care often falls on the shoulders of women," Breyer said, noting that the FMLA was needed for employers to treat women and men equally when it comes to granting leave.

Taggart, however, said the law was not meant to smooth out a problem with sex discrimination under the equal protection clause of the Constitution, but rather as an economic directive that falls under the commerce clause. If the court adopts such an argument, it would likely make states immune from lawsuits.

Cornelia Pillard, a Georgetown University law professor who argued on behalf of William Hibbs, whose 1997 firing prompted the lawsuit, said Congress clearly had discrimination in mind when the law was enacted.

"Employers assume women are more likely to leave their jobs to take care of their families," Pillard said. "This act erodes that very bias against women. It makes both men and women equally unattractive."

Justice Antonin Scalia said he remembered congressional debates about the FMLA, but he did not recall sex discrimination serving as motivation for its enactment.

Scalia also took exception to the 12 weeks of unpaid leave that employers must offer their employees, asking a Justice Department attorney why the government decided to "pluck 12 weeks of leave" as opposed to six weeks or 24 weeks.

Viet D. Dinh, an assistant attorney general who defended the law on behalf of the Justice Department, said Congress had the authority to set the time limit. Earlier, Pillard said all sorts of problems would have resulted if decisions about time off were left up to a supervisor's discretion.

Outside the court, Hibbs told reporters that his employer, the welfare division of Nevada's human resources department, treated him differently than other employees. Hibbs had used the full 12 weeks allowed under the federal law to take care of his wife, and then applied for additional time he thought was available from the state.

When his request was denied and he did not return to work, Hibbs was fired.

"I know of cases in my office where women were allowed off for a year and no sanctions ever came to them," he said. "I tried to take 12 weeks under the Family Medical Leave Act and I was basically retaliated against and fired for trying to take the leave."

Schumer warned that if the court sides with Nevada, employees at private businesses could soon find themselves in the same situation.

"I worry that while this is arguing about the states, that if this law is thrown out, there will be a huge push to get rid of the Family Medical Leave Act in terms of private employers," he said. "It may be a different argument before this court or it may be move legislatively."

While Nevada has the support of 13 states, another six states, led by New York Attorney General Eliot Spitzer, have argued in support of the law, even though they could face their own lawsuits.

The case is called Nevada Department of Human Resources v. Hibbs, and should be decided by June.

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