Coleman v. Maryland Court of Appeals, argued earlier this week at the USSC, poses a narrow but interesting question about the scope of Congress's power to abrogate state sovereign immunity by exercise of its power to enforce the equal protection guarantee. A transcipt of the oral argument is here. At issue is the self-care leave provision of the Family and Medical Leave Act. The provision requires up to 12 weeks of unpaid leave be provided for an employee who becomes ill, can't work, and must care for their own recovery, and creates a private cause of action to recover money damages for violation of the provision. Coleman, a male, was employed by the Maryland Court of Appeals. He became embroiled in an internal personnel controversy, then he requested sick leave. Instead, he was fired. The Fourth Circuit upheld dismissal of the FMLA claim (see Part III of the opinion here) because there was insufficient evidence that the self-care provision was intended by Congress to address sex discrimination in employment and there was no evidence that governments were discriminating by sex in granting or denying self-care leave to their employees. In Hibbs, of course, the USSC held that the portion of the FMLA that deals with unpaid leave to care for an ill family member was a valid prophylaxis of sex discrimination, given the stereotype that woman are caregivers to others. Here, the Court has an interesting choice. If it adheres to its Tennessee v. Lane analysis, in which it carved out a specific application of a general prohibition and said that all the Court need do was focus on that application without regard to the broad sweep of the statute, it should focus only on the self-care leave provision, where the evidence is scant that it had anything to do with prevention of sex discrimination. But if it rejects Lane, or distinguishes it in some way, and relies on the entirety of the FMLA as a device to prevent sex discrimination, it will come out as it did in Hibbs. The Court should reject Lane, as the congruence and proportionality test is crafted to measure the connection between the statute as a whole to the constitutional injury that Congress seeks to prevent. That would result in a reversal of the Fourth Circuit because the evidence is pretty good that the entire original FMLA was an attempt to prevent sex discrimination in employment. Maybe the dissenters arguments in Hibbs are sound, but that's not the issue here.
In reading the oral argument transcript, it helps to know that A is the FMLA provision pertaining to leave for child-bearing or newborn child care, B is the provision for adoption or foster care, C is the provision for care for a spouse, child, or parent (the issue decided in Hibbs), and D is the self-care provision.
It's important to recall that Hibbs was a complete surprise at the time, coming on the heels of a consistent set of precedents limiting the Section 5 power to abrogate sovereign immunity as well as a nearly uniform set of lower court decisions applying those precedents to strike down the FMLA. It will be interesting to see if the current court reverts to the pre-Hibbs approach or does something different. The legislative record even for the other provisions of the FMLA was frankly pretty thin on actual recent violations by state employers (which is, after Boerne, the standard for demonstrating the scope of potential prophylactic protection), but the majority in Hibbs found it sufficient nonetheless.
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