In enacting the self-leave provision of the Family and Medical Leave Act, was Congress seeking to address gender discrimination in the workplace?
That was the question at the center of the debate Wednesday during oral arguments in the U.S. Supreme Court case Coleman v. Court of Appeals of Maryland, which considers whether Congress abrogated states’ sovereign immunity from FMLA claims involving self-care leave.
The case stems from a FMLA claim by Daniel Coleman, who worked in Maryland’s Administrative Office of the Courts. In 2007 Coleman applied for leave under FMLA’s self-care provision for an illness that would require him to miss 10 days of work. He alleged that his supervisor responded by giving Coleman a choice between resigning with 30 days of administrative leave or being terminated immediately. Coleman refused to resign and was fired, he alleged.
He sued the state of Maryland alleging violation of FMLA. But the district court dismissed the claim, and the 4th Circuit affirmed, finding the state was protected by sovereign immunity.
Unlike the family-leave provision of the law, which allows qualified employees to take up to 12 weeks annual unpaid leave to care for an ailing spouse, parent or child, the self-care leave provision was not designed to address gender discrimination in the workplace, the court held. The family-care provision was enacted because family care responsibilities had traditionally fallen on women, who needed to be protected from any adverse employment repercussions of such care. That amounted to a civil rights protection that abrogated states’ qualified immunity against suits based on family-care leave claims.
The self-care provision, conversely, was meant to protect men and women equally, so there is no civil rights concern to trigger any abrogation of immunity, the court said.
The Supreme Court agreed to hear the case.
‘You can’t have one without the other’
Michael L. Foreman, director of the Civil Rights Appellate Clinic at Penn State Law, argued on Coleman’s behalf that gender discrimination was Congress’ concern in enacting both the family-leave and self-leave provisions of FMLA.
But Justice Elena Kagan questioned “whether Congress was aiming to eradicate gender discrimination through this provision, or whether it was trying to do something else entirely.”
“[Congress was] attempting to address these gender-based stereotypes in a couple different ways,” Foreman said.
Justice Samuel Alito wasn’t so sure, since the self-leave provision applies equally to everyone.
“I have difficulty seeing how providing 12 weeks of leave for self-care for both men and women affects the incentive of an employer who we will assume has an inclination to discriminate,” Alito said.
Foreman stressed that certain common reasons for taking extended leave — such as pregnancy — disproportionately affect women.
The provision “evens the ground,” Foreman said.
“Do you have any evidence that Congress in fact was thinking about” gender-based discrimination as related to the self-leave provision, Justice Kagan asked.
Foreman cited testimony from the National Women’s Political Caucus about the bill, which stated that the “primary purpose is to stress that parental and medical leave are inseparable. In the words of the old song, ‘You can’t have one without the other.’”
Justice Ruth Bader Ginsburg wondered if any other law gives women the protection the plaintiff claimed to be the concern of the self-leave provision.
“If an employer decides, ‘I don’t want to hire women of child-bearing age,’ that is an out-and-out violation of the Pregnancy Discrimination Act, isn’t it?” Justice Ginsburg asked.
Foreman said the goal under FMLA’s self-care leave provision was broader, giving women “the ability to take pregnancy-related leave [or] other leave [without] a negative inference running against women.”
‘A statute that doesn’t defeat itself’
Maryland Deputy Attorney General John B. Howard Jr. began his argument by pointing at statistics and studies, including “Bureau of Labor Statistics studies indicating that men and women at the time took roughly the same amount of sick leave.”
Justice Sonia Sotomayor asked about Congressional testimony citing some employers’ reluctance to hire women of child-bearing age.
“Frankly, for years there [were] questions about whether law firms were not hiring young women because they feared they would leave in the middle of a big case or something else,” Justice Sotomayor said. “We all know those stories.”
“The Pregnancy Discrimination Act was already in place, and so to the extent there were perceptions that employers might discriminate based on pregnancy disabilities, that would be unlawful under Title VII,” Howard said.
But Justice Breyer asked if there were broader implications, and if the self-leave provision was designed to make sure employers can’t take their discriminatory inclinations out on women who are not caring for others.
“I think, reading this and listening, a major reason why [Congress] put in [the self-leave provision] is because working with that 12-week [family-leave] limitation, and the whole rest of the statute, we now have a statute that doesn’t defeat itself,” Justice Breyer said. “We now have a statute that actually can achieve the end of leading employers to not discriminate against women.”
“I think the premise of that point is that women will take more leave for serious health conditions than men,” Howard said. “And I don’t think that’s borne out.”
Justice Kagan asked whether the fact that the self-care provision was passed “at the same moment on the basis of the same record” as the other provisions, which were aimed at gender discrimination, should make a difference in the immunity determination.
The provision establishing self-leave, Howard said, “provides a separate claim, a separate basis to sue states.”
“It’s a separate and independent claim and it’s an extraordinarily broad one,” Howard said. “And it is not necessary [to protect female workers] because Pregnancy Discrimination Act claims are available.”
A ruling is expected later this term.