Supreme Court's Family Leave Ruling 'Bucks Trend' of States' Rights Cases

By Robert B. Bluey | July 7, 2008 | 8:29 PM EDT

( - The U.S. Supreme Court ruled Tuesday that state workers can sue for violations of the Family and Medical Leave Act, breaking the court's recent string of decisions that favored states' rights.

The 6-3 decision in Nevada v. Hibbs, written by Chief Justice William H. Rehnquist, affords nearly 5 million state employees the same rights as private workers. The law guarantees 12 weeks of unpaid leave for a host of medical reasons, including serious illness, pregnancy and the care of sick family members.

From the time the court agreed to hear the case, supporters of the family leave law, known as the FMLA, worried it would become another casualty in the court's trend of limiting federal laws as they apply to states.

The FMLA, after all, was debated for eight years on Capitol Hill and vetoed twice before President Bill Clinton signed it into law in 1993. Liberals defend it as a means to end workplace discrimination, while conservatives view it as an unnecessary intrusion by the federal government.

The decision by the Supreme Court, which affects only state employees, addresses those federalism questions, but it puts a greater emphasis on the problems of gender discrimination in the workplace.

"It's a wonderful affirmation to have the chief justice leading a strong majority of the court," said Cornelia Pillard, an attorney for William Hibbs, who sued the state of Nevada after he was fired for a dispute involving the family leave law.

Pillard said she wasn't necessarily surprised the chief justice stood apart from the court's other conservative members who dissented. She said the ruling "breaks the string of decisions that were chipping away at Congress' power to protect constitutional rights."

Rehnquist's opinion distinguishes the FMLA case from those past rulings, which limited the scope of the Americans with Disabilities Act and the Age Discrimination Employment Act.

Those two decisions prompted 45 members of Congress to file a friend-of-the-court brief asking the Supreme Court to uphold the FMLA.

The author of the brief, Mark E. Haddad, a partner at Sidley Austin Brown & Wood, said the court recognized a history of gender discrimination, and therefore was willing to let Congress legislate in that area - a distinction from its rulings on age and disability discrimination.

"It doesn't suggest the court's going to change its mind about the right answer to those prior cases, but it does buck the trend that we've now reached a stopping point," Haddad said. "When Congress is acting within the core of its powers within the 14th Amendment, the court is going to give them some significant leeway to do that."

Sen. Edward M. Kennedy (D-Mass.), one of the court's toughest critics on federalism issues, hailed the decision as a "clear vindication of the power of Congress" to make laws that curb gender discrimination.

Nevada's attorney general, Brian Sandoval, offered a different assessment. Once the merits of the case are heard - the Supreme Court only considered whether Hibbs could sue in federal court - Sandoval expressed confidence the state would prevail.

"No court decision thus far has demonstrated that Nevada discriminates with regard to its leave policies, and, in Mr. Hibbs instance, the state was nearly twice as generous as the FMLA requires," Sandoval said in a statement.

Meanwhile, critics of the FMLA expressed disappointment. Deborah J. LaFetra, an attorney for the Pacific Legal Foundation, which filed a brief supporting Nevada, said it was unfortunate that Rehnquist decided to make gender discrimination the focal issue of the case.

"The decision is disappointing because we didn't think the FMLA was about gender discrimination at all," LaFetra said. "Instead, it simply provides an economic benefit to all men and women employed by the state."

She said the main distinction between the majority opinion and the three justices who dissented - Anthony M. Kennedy, Antonin Scalia and Clarence Thomas - came down to whether gender discrimination existed at the state government level.

The Pacific Legal Foundation made the argument that a statute that offers workers 12 weeks of unpaid leave does nothing to remedy the constitutional prohibition against gender discrimination.

"If Congress had made it 10 weeks or two weeks, it wouldn't have made any difference under the Constitution," LaFetra said. "It just gets further and further away from what the Constitution meant to do to prohibit discrimination."

The immediate effect of the decision means Hibbs and other state employees can proceed with their lawsuits in federal court to seek monetary damages. Pillard said Hibbs, who she described as "extremely pleased," would like to recoup lost wages and have his job reinstated.

See Earlier Story:
Dems Use Family Leave Case To Criticize Court's 'Activism' (Jan. 16, 2003)

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