Last week, the Supreme Court decided a case involving a state employee who sued for violation of the Family and Medical Leave Act (FMLA), Coleman v. Court of Appeals of Maryland. The arguments in the case were about federalism: how far one sovereign (the federal government, acting through Congress) can go in imposing liability on another (a state government). However, in reaching its decision — against the employee — the Court missed the entire point of the FMLA.
The facts are pretty basic: Daniel Coleman asked his employer, the Maryland Court of Appeals, for sick leave. His employer denied his request and told him he would be fired if he didn’t resign. Coleman sued for violation of the FMLA, charing that his employer failed to grant him time off for his own serious health condition as required by the law. His employer defended itself by saying that it was immune from suit because Congress didn’t have the right to subject it to money damages for violating the FMLA.
In our federal system of government, there are limits on the obligations Congress can impose on the states. At issue in this case was Congress’s right to enforce the guarantees of the Equal Protection Clause of the Constitution, which the federal government has used to remedy discrimination by the states (originally, race discrimination against the newly freed slaves). To subject a state to monetary damages under a federal law, that law must clearly indicate that intent; must be tailored to remedy or prevent Equal Protection violations; and must impose remedies that are proportional to that goal. In this case, what everyone disagreed about was whether or not the provisions allowing leave for an employee’s own serious health condition was intended to address sex discrimination, which violates the Equal Protection Clause.
The Supreme Court decided years ago that the FMLA’s provision allowing leave to care for family members was intended to remedy sex discrimination, and so could properly be enforced against the states for money damages. Because women are still the primary care providers in our society, the Court had no trouble finding that the caregiver provision was aimed at sex discrimination. In the Coleman case, however, the Court found that the self-care provision — the allowance of time off for the employee’s own serious health care condition — addressed discrimination based on illness, not discrimination based on gender. Therefore, the Court found that Congress didn’t have the right to require states to pay money damages for violating this section of the law.
Unfortunately, in parsing the case so finely, the Court ignored the history and purpose of the FMLA. The FMLA was born of disputes over pregnancy leave. Women’s rights advocates were divided as to how to address this fundamental difference between the sexes in the workplace. Fighting for pregnancy leave and time off to recover from childbirth seemed necessary to safeguard women’s right to workplace equality; yet it also created a fundamental difference in the way employers were to treat men and women, with the possible outcome that employers would discriminate against women to avoid having to provide this benefit. The FMLA — and specifically, the right to time off for one’s own serious health condition, the category of leave that includes pregnancy and childbirth — was the eventual solution. By making the right to leave gender-neutral, advocates hoped to frame pregnancy as just one of the many reasons why an employee might need time off, and thereby diminish the likelihood of sex discrimination among employers while also protecting the right to leave. By allowing parental and caregiving leave for men and women equally, the FMLA also sought to break the sex-based stereotype of women as primary caregivers. The whole law as a package, and particularly the provision allowing leave for one’s own serious health condition, was intended precisely to combat sex discrimination. Justice Ginsberg’s dissent explains this history and intent clearly, as does the amicus brief of the National Partnership for Women & Families, the group that was instrumental in drafting and advocating for the law decades ago.