Supreme Court’s FMLA Decision a Setback for Women

On Tuesday, by a 5-4 vote, the Supreme Court held that state employees who are denied their Family Medical and Leave Act (FMLA) rights to take time off because of their own serious medical conditions have no meaningful remedy. The facts in Coleman v. Maryland Court of Appeals don’t necessarily suggest that this is a case about sex discrimination and pregnancy discrimination: Daniel Coleman, a man employed by the Maryland Court of Appeals, sought sick leave for a serious medical condition and was terminated—in violation of the FMLA, he claimed. As Justice Ginsburg explained in her powerful dissent, however, whether and how the FMLA protects state employees who need time of because of their own serious medical conditions is in many ways fundamentally an argument about gender and the protections the Constitution provides against sex discrimination. According to five Justices on the Supreme Court, women just lost that argument.

First, some important legal background: In previous decisions, the Supreme Court has held that the Constitution only gives Congress the power to pass laws that expose state governments to potential damages awards in limited circumstances, including when Congress is enforcing the Equal Protection Clause’s protections against discrimination. In 2003, in a case called Hibbs v. Nevada Department of Human Resources, the Supreme Court held that Congress was doing just that when it passed the portions of the FMLA that entitle an employee to take leave upon the birth or adoption of a child or to care for a family member suffering from a serious medical condition. These provisions, Justice Rehnquist wrote in a 6-3 opinion, were designed to address a pattern of sex discrimination, including unconstitutional sex discrimination by state governments. State employers and private employers had made family leave available to women only based on an assumption that caregiving was women’s work, and in so doing both denied family leave rights to men and reinforced a stereotype that women were less dependable workers. “By creating an across-the-board, routine employment benefit for all eligible employees”—male and female, the Hibbs court explained, “Congress sought to ensure that family-care leave would no longer be stigmatized as an inordinate drain on the workplace caused by female employees, and that employers could not evade leave obligations simply by hiring men.”

This week, in Coleman, the Court held that the FMLA provision entitling employees to take leave for their own serious medical conditions is completely different. The case was not about family leave, the Court concluded, but about sick leave. The Court found no reason to conclude that state employers had previously discriminated on the basis of sex in regard to sick leave, and thus no basis for making state employers liable for damages under this provision of the FMLA.

In so holding, the Court ignored the purposes and intent of the FMLA. As Justice Ginsburg’s dissent explains in rich detail, Congress conceived of the FMLA as a whole, and the entire statute was designed to promote women’s equal employment opportunities by remedying a long pattern of unconstitutional employment discrimination against pregnant women and new mothers. This included discrimination against women who sought leave for prenatal care, as a result of pregnancy complications, to recover from childbirth. “It would make scant sense to provide job-protected leave for a woman to care for a newborn, but not for her recov­ery from delivery, a miscarriage, or the birth of a stillborn baby,” Ginsburg wrote. “And allowing States to provide no pregnancy ­disability leave at all, given that only women can become pregnant, would obviously exclude far more women than men from the workplace.” The FMLA purposefully sought to address this problem in a gender-neutral manner. By providing a right for both men and women to take leave for serious medical conditions or to care for family members, the FMLA ensured that employers wouldn’t have an incentive to avoid hiring women, as they would if only women had the right to take medical and family leave.  The majority’s decision upsets that careful balancing of incentives when it comes to state employees.

If a state employee can’t sue her employer for damages when it violates the FMLA, the state employer has little reason to respect the employee’s FMLA rights. This week, the Court turned a blind eye to the purposes animating the FMLA and the impact of its decision on the employees the FMLA sought to protect. Unfortunately, Coleman will make it harder for state employees suffering pregnancy complications and other serious medical conditions to enforce their rights to take the leave to which they are legally entitled. It may also have the perverse effect of encouraging state employers to discriminate against women based on the stereotype that women are more likely to exercise family leave rights—the only sorts of leave rights now enforceable through damages against state governments. This week was a bad week for women at the Supreme Court.