A closely divided Supreme Court today poked a hole – a small one, but a hole nonetheless – in the Family and Medical Leave Act, the milestone 1993 law guaranteeing eligible employees 12 weeks of unpaid leave per year. Passed in response to widespread employment discrimination against women, the FMLA protects employees who need to take time off to take care of themselves or a family member, but fear being fired for doing so. After today's ruling, public sector employees who are not allowed to take time off for serious health conditions that make them unable to do their jobs cannot sue their state employers for money damages for this violation of the FMLA.
The opinion is tied up with the concept of "sovereign immunity," the Eleventh Amendment principle that states cannot be sued for money damages without their consent. The Court has previously ruled that Congress can pass a law that abrogates states' sovereign immunity if it is acting under its authority to enforce the Fourteenth Amendment's Equal Protection Clause. One major example, the Court has previously ruled, is the FMLA's provision guaranteeing employees the right to unpaid leave to take care of family members. But today, the conservative Justices ruled that FMLA protections for employees who need time off to take care of their own health were not passed to remedy sex discrimination and, therefore, were not based on the Fourteenth Amendment. As a result, states retain the right not to be sued for violating this part of the law.
Justice Ginsburg, joined by Justices Sotomayor, Kagan, and Breyer, wrote a forceful dissent. While the FMLA's self-care provision is written without regard to gender, Ginsburg explains in carefully documented detail how one of its primary purposes was to end well-documented evidence of employment discrimination against pregnant women, including in public employment. But advocates feared that a law mandating unpaid leave specifically for pregnancy would have unintentional consequences: employers would hire fewer women. So advocates pressed for a self-care provision written without regard to pregnancy or gender. As Ginsburg writes:
Self-care leave, I would hold, is a key part of Congress' endeavor to make it feasible for women to work and have families. ... By reducing an employer's perceived incentive to avoid hiring women, [the self-care provision] lessens the risk that the FMLA as a whole would give rise to the very sex discrimination it was enacted to thwart. The plurality offers no legitimate ground to dilute the force of the Act.
While today's case – Coleman v. Maryland Court of Appeals – involves a male employee, that is not relevant to whether Congress adopted this component of the FMLA as an exercise of its authority to eliminate unconstitutional sex discrimination. The Roberts Court is notorious for finding ways to shut the courthouse door to working women, and it did so again today.