Family-leave act caught in Supreme Court fray

When William Hibbs's wife sustained a severe neck injury in a 1996 car accident, it became necessary for him to remain home from work to care for her prior to additional surgery.

He applied for and received unpaid time off from his job as a state welfare social worker in Nevada. But after several months at home, Mr. Hibbs's employer insisted that he either return to work or lose his job.

After being fired, Hibbs sued his employer, the state of Nevada, in federal court for allegedly violating the federal Family Medical Leave Act (FMLA).

Although he did not know it at the time, Hibbs was setting the stage for the latest showdown at the US Supreme Court over states' rights. Justices are set to hear oral arguments in the case Wednesday, which could further extend the resurgent federalism evident in the rulings of the high court's conservative wing.

The case is significant because it represents the cutting edge of an effort by five of the court's nine justices to scale back the broad powers of the federal government when in the justices' view they intrude impermissibly into the realm of state and local authority.

At the same time, these efforts have raised serious questions about when and how Congress can act to remedy what it sees as significant discrimination and other social problems at the state and local level.

"This case is about the ability of Congress to protect the rights you care about," says Isabelle Katz Pinzler of the NOW Legal Defense and Education Fund. "It is a real turning point in whether Congress can protect those rights."

The FMLA was passed by Congress in 1993 in an attempt to address a stereotype held by many employers that whenever a family emergency required some form of leave from work, it would be women rather than men who would request and take that leave.

The law says that all workers - both male and female - are entitled to as many as 12 weeks of unpaid leave to meet such home-based emergencies. It empowers state employees to sue their state employer for money damages if the state fails to comply with these standards.

To authorize such lawsuits against a nonconsenting state, Congress had to invoke the special powers of the 14th Amendment that grant the federal government the authority to override state sovereign immunity, but only in particularly egregious cases.

What the high court must decide is whether the gender stereotypes addressed in the FMLA were egregious enough to trigger Congress's special 14th Amendment powers.

Lawyers for Nevada say they weren't, while those supporting Hibbs say they were.

"This nation has a lengthy and regrettable history of discrimination on the basis of gender," writes Solicitor General Theodore Olson in his brief to the court. "By equalizing male and female employees' entitlement to family leave, Congress aimed to transform family leave from its historic genesis as a 'women's issue,' into a routinized, across-the-board employment benefit."

Lawyers for Nevada disagree. "Congress was not legislating to remedy unconstitutional state conduct when it enacted the provision," says Nevada Deputy Attorney General Paul Taggart in his brief to the court.

That distinction is important, he says, because Congress may override the states' 11th Amendment immunity only when it acts to remedy a pattern of unconstitutional actions by the states. No such pattern exists in Nevada's administration of family leave, he says.

Thirteen states have filed a friend-of-the-court brief supporting Nevada and agreeing that the FMLA was not aimed at addressing unconstitutional state conduct. "Most states were ahead of the federal government in addressing the family and medical leave needs of their employees," says Charles Campbell, an Alabama deputy solicitor general, in the states' brief.

Six states filed a brief supporting Hibbs. "When Congress enacted the FMLA in 1993 ... it recognized that the absence of adequate gender-neutral family leave policies in the public and private sectors had a disparate impact on women," says Caitlin Halligan, New York's solicitor general, in the brief for New York and five other states.

In recent years, the court has struck down laws seeking to use the 14th Amendment to address age discrimination and discrimination against the disabled by state employers.

But gender discrimination is different, Hibbs supporters say. Since it is almost always unconstitutional, the court should grant Congress wide latitude in its attempts to prevent sex-based bias, they say.

In Hibbs's case, there is no allegation that Nevada refused to grant Hibbs the same amount of leave as it was granting women employees. Nevada state leave laws are identical to the FMLA provisions (both require 12 weeks of unpaid leave), and the Nevada law permits state employees to sue in state court to correct alleged violations.

The core dispute in the Hibbs lawsuit is exactly how many weeks of leave Hibbs was entitled to take. He says state and federal leave entitlements run consecutively for up to 24 weeks, while state officials say the two provisions run concurrently and do not extend beyond a total 12-week entitlement per employee.

If the court upholds the application of FMLA to the Hibbs case, the concurrent/consecutive issue would be decided at a trial.