By: Margaretta Homsey Kroeger, Esq.
In March 2012, the United States Supreme Court held in Coleman v. Court of Appeals of Maryland that sovereign immunity barred suits for damages brought against state employers under the self-care provision of the federal Family and Medical Leave Act (FMLA or the Act). In a plurality opinion, the Court concluded that the self-care provision of the Act, which entitles employees to take unpaid leave to care for their own serious health conditions, did not validly abrogate the States’ immunity from suit under §5 of the Fourteenth Amendment.
The petitioner had made three arguments on appeal: (1) that the self-care provision was intended to address sex discrimination and stereotyping; (2) in the alternative, that it was a “necessary adjunct” to the family-care provisions of the Act which had previously been upheld; and (3) that it helped single parents, who were mostly women, to keep their jobs when they became ill. The Court rejected these arguments and held that the self-care provision did not abrogate the States’ sovereign immunity because it was not directed at an identified pattern of state constitutional violations and it was not congruent and proportional to any such violations.
Enacted by Congress in 1993, the FMLA entitles eligible employees to take up to 12 work weeks of unpaid leave per year for medical and family-related reasons. The Act’s stated purpose is to promote, inter alia, the stability and economic security of families and equality of employment opportunity for women and men. Consistent with the Equal Protection Clause of the Fourteenth Amendment, the Act is intended to minimize the potential for sex-based employment discrimination “by ensuring generally that leave is available for eligible medical reasons (including maternity-related disability) and for compelling family reasons, on a gender-neutral basis.”
Under the FMLA, employees are entitled to take leave in order to care for family members or to care for their own health conditions. The family-care provisions of the Act state that an employee may take leave: (A) for the birth of the employee’s son or daughter in order to care for such son or daughter; (B) for the placement of a son or daughter with the employee for adoption or foster care; or (C) in order to care for the employee’s spouse, son, daughter, or parent with a serious health condition. The self-care provision of the Act states that an employee may also take leave: (D) “because of a serious health condition that makes the employee unable to perform the functions of the position of such employee.” The FMLA creates a right of action for the enforcement of its provisions by employees, providing that an action for equitable relief and damages “may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction.”
In Coleman, the petitioner Daniel Coleman had requested sick leave from his employer, the Court of Appeals of Maryland. After making his request, he was told that he would be terminated if he did not resign. Coleman then sued his employer in federal court, alleging that the Court of Appeals of Maryland had violated the self-care provision of the FMLA.
The United States District Court for the District of Maryland dismissed the FMLA claim on sovereign immunity grounds. It found that the Court of Appeals of Maryland was an entity of the State for the purposes of sovereign immunity under the Eleventh Amendment, and it ruled that the self-care provision of the FMLA did not validly abrogate that immunity. The United States Court of Appeals for the Fourth Circuit affirmed, and the Supreme Court granted certiorari.
Writing for a plurality of the Court, Justice Kennedy first observed that “[a] foundational premise of the federal system is that States, as sovereigns, are immune from suits for damages, save as they elect to waive that defense.” Congress may, however, abrogate the States’ sovereign immunity from suit pursuant to its enforcement power under §5 of the Fourteenth Amendment, which gives it the authority to enforce the substantive rights guaranteed by §1 of the Amendment, including due process and equal protection of the laws. The Court noted that the enforcement power includes the authority to remedy as well as to deter violations of these substantive rights by appropriate legislation.
The Court then set out the specific requirements that must be met in order for Congress to validly abrogate the States’ sovereign immunity when enacting legislation pursuant to §5. First, Congress must make its intention to abrogate “unmistakably clear in the language of the statute.” The Court determined that the FMLA met this requirement because it specifically subjects any “public agency” to suit under its provisions. Second, legislation enacted under §5 “must be targeted at ‘conduct transgressing the Fourteenth Amendment’s substantive provisions,’” and “[t]here must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.”
The Court noted that it had previously considered whether these requirements were met in the context of a suit for damages under one of the family-care provisions of the FMLA. In Nevada Department of Human Resources v. Hibbs, the Court held that Congress could subject the States to suit for violating subparagraph C of the FMLA, which entitles employees to take unpaid leave to care for a family member with a serious health condition. The Court observed that its holding in Hibbs “rested on evidence that States had family-leave policies that differentiated on the basis of sex and that States administered even neutral family-leave policies in ways that discriminated on the basis of sex.” Significantly, Congress had enacted the FMLA family-care provision as a response to “a well-documented pattern” of unconstitutional gender-based discrimination by the States in administering family-leave policies. As a result, the Court in Hibbs had “concluded that requiring state employers to give all employees the opportunity to take family care leave” was a remedy “‘narrowly targeted at the faultline between work and family—precisely where sex-based overgeneralization has been and remains strongest.’”
Turning to the self-care provision of the FMLA at issue before it in Coleman, the Court determined that, unlike the family-care provision in Hibbs, the self-care provision was not supported by evidence of a pattern of unconstitutional state conduct, nor was it a narrowly tailored remedy targeted at such conduct. Accordingly, the Court held that the self-care provision did not validly abrogate the States’ sovereign immunity.
On appeal, the petitioner had argued that the self-care provision, standing alone from the other provisions of the Act, was intended to address sex discrimination and sex stereotyping. The Court dismissed this argument, emphasizing that the evidence before Congress when it enacted the FMLA “did not suggest States had facially discriminatory self-care leave policies or that they administered neutral self-care leave policies in a discriminatory way.” Instead, the Court observed, the legislative history suggested that Congress was concerned about economic burdens imposed on employees and their families due to “illness-related job loss,” and that the self-care provision was based on “a concern for discrimination on the basis of illness, not sex.”
Although the Court acknowledged that the self-care provision could benefit women who needed to take leave for pregnancy-related illnesses, it stated that, “as a remedy, the provision is not congruent and proportional to any identified constitutional violations.” The Court noted that when the FMLA was enacted, the vast majority of state employees were covered by paid sick-leave and short-term disability plans, and there was no evidence before Congress that pregnancy-related illnesses were excluded from these plans. Consequently, the Court reasoned that subjecting States to suit for failing to provide self-care leave “is not a congruent and proportional remedy if the existing state leave policies would have sufficed.”
The Court also rejected the two alternative arguments advanced by the petitioner. First, the petitioner had argued that the self-care provision was “a necessary adjunct to the family-care provisions.” The petitioner asserted that employers might assume that women would be more likely to take family-care leave under the FMLA than men, and therefore employers would still have an incentive to discriminate against women. As a result, the petitioner suggested that it was necessary to combine the family-care leave provisions with the self-care provision in order to reduce the difference in the expected amount of time that women would take under the FMLA as compared with men. The Court was not convinced, pointing out that there were no congressional findings suggesting that “the availability of self-care leave equalizes the expected amount of FMLA leave men and women will take,” nor were there any findings or evidence suggesting that “the self-care provision is necessary to the family-care provisions or how it reduces an employer’s incentives to discriminate against women.”
The petitioner had also argued that the self-care provision helped single parents, the majority of whom are women, to keep their jobs after becoming ill. The Court was similarly unpersuaded by this argument, stating that, “at most,” this meant that the self-care provision remedied “neutral leave restrictions which have a disparate effect on women.” The Court noted that disparate impact alone was insufficient to show a constitutional violation under the Fourteenth Amendment. Accordingly, even if the provision assisted single parents, who are disproportionately female, it was not targeted at a pattern of state constitutional violations as required to validly abrogate the States’ sovereign immunity when enacting legislation pursuant to §5.
The Court concluded by noting that a State such as Maryland is still free to waive its immunity or to create a parallel state law cause of action if it agreed with the petitioner that state employer liability was necessary to remedy discrimination against women. It then held that the States’ sovereign immunity was not validly abrogated by the FMLA’s self-care provision, and it affirmed the judgment of the Fourth Circuit.
Justice Scalia concurred in the judgment, but objected to the plurality’s use of the “congruence and proportionality test” because, in his view, it invited arbitrary and policy-driven judicial decisions. Instead, he urged that the Court should “adopt an approach that is properly tied to the text of §5,” which, he noted, authorizes Congress “to enforce” the provisions of the Fourteenth Amendment. He suggested that the Court therefore limit the §5 power “to the regulation of conduct that itself violates the Fourteenth Amendment,” except in the unique context of racial discrimination. Because the failure to grant self-care leave is not such conduct, he concurred in affirming the judgment of the Fourth Circuit.
In dissent, Justice Ginsburg asserted that the self-care provision was a valid exercise of the §5 power. In her view, the self-care provision played an important role in the statutory scheme of the FMLA, whose aim was to enforce the right to be free from gender-based workplace discrimination. The purpose and legislative history of the FMLA, she wrote, both “reinforce the conclusion that the FMLA, in its entirety, is directed at sex discrimination.” Justice Ginsburg noted that the FMLA was originally intended to ensure, in a gender-neutral way, that pregnant women would not lose their lobs after giving birth, and that the self-care provision played a key role in achieving that goal. She observed: “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.”
The dissent further stated that the plurality erred in concluding that there was no evidence that the self-care provision was a necessary adjunct to the family-care provisions, noting that Congress had heard testimony indicating that a gender-neutral law that only contained family-care provisions would be seen as a benefit for women and would promote discrimination against women in the workplace. According to the dissent, self-care leave was necessary to making the family-care provisions effective; it stated that, “[b]y reducing an employer’s perceived incentive to avoid hiring women,” the self-care leave provision “lessens the risk that the FMLA as a whole would give rise to the very sex discrimination it was enacted to thwart.” Finally, the dissent emphasized that the plurality opinion did “not authorize state employers to violate the FMLA,” and noted that an employee could still seek injunctive relief for a violation of the self-care provision and that the U.S. Department of Labor could bring an action against a State to recover “monetary relief” on an employee’s behalf.
Margaretta Homsey Kroeger is a Skadden Fellow at Greater Boston Legal Services in the Elder, Health and Disability Unit, where she focuses on advocating for youth with disabilities who are aging out of the foster care system. She provides outreach, community education, and direct legal representation to youth who need assistance accessing disability benefits, health care, and related services. Prior to her fellowship, Ms. Kroeger clerked for Justice William P. Robinson III of the Rhode Island Supreme Court. She received her law degree from BostonCollegeLawSchool, where she was a Public Service Scholar and served as an articles editor of the Boston College Law Review and as vice president of the Public Interest Law Foundation. She received her undergraduate degree from HarvardUniversity with a concentration in History.
 Coleman v. Court of Appeals of Maryland, 566 U.S. ___, 132 S. Ct. 1327, 1332 (2012).
 Justice Kennedy wrote the plurality opinion, which was joined by Chief Justice Roberts and Justices Thomas and Alito. Justice Thomas also wrote a concurring opinion, and Justice Scalia wrote an opinion concurring in the judgment. Justice Ginsburg wrote the dissenting opinion, which was joined by Justice Breyer; Justices Sotomayor and Kagan joined the dissent as to all but the first footnote.
 See Family and Medical Leave Act of 1993, 29 U.S.C. §2612(a)(1)(D).
 Coleman, 132 S. Ct. at 1338.
 Id. at 1334-37.
 Id. at 1338.
 29 U.S.C. §2601 et seq.
 See 29 U.S.C. §2612(a)(1).
 29 U.S.C. §2601 (b)(1)-(5).
 29 U.S.C. §2601 (b)(4).
 29 U.S.C. §2612(a)(1)(A)-(C).
 29 U.S.C. §2612(a)(1)(D).
 29 U.S.C. §2617(a)(2).
 Coleman v. Court of Appeals of Maryland, No. L–08–2464, 2009 WL 8400940, at *1 (D. Md. May 7, 2009).
 Coleman, 132 S. Ct. at 1333; see also Coleman v. Maryland Court of Appeals, 626 F.3d 187, 191 (4th Cir. 2010) (“The Eleventh Amendment bars suit in federal court against an unconsenting state and any governmental units that are arms of the state unless Congress has abrogated the immunity.”) (citing Alden v. Maine, 527 U.S. 706, 755–57 (1999)).
 Coleman, 626 F.3d at 194.
 Coleman, 132 S. Ct. at 1333.
 Id. at 1334 (quoting Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, 527 U.S. 627, 639 (1999)).
 Id. at 1334 (quoting City of Boerne v. Flores, 521 U.S. 507, 525 (1997)).
 Id. at 1332 (citing Nevada Department of Human Resources v. Hibbs, 538 U.S. 721 (2003)).
 Coleman, 132 S. Ct. at 1332.
 Id. at 1334.
 Id. (quoting Hibbs, 538 U.S. at 738).
 Id. at 1338.
 Id. at 1335.
 Id. at 1335-36.
 Id. at 1337.
 Id. at 1338.
 Id. at 1338 (Scalia, J., concurring in the judgment).
 Id. at 1339-40 (Ginsburg, J., dissenting).
 Id. at 1340.
 Id. at 1345-46.
 Id. at 1349.
 Id. at 1350.