The U.S. Supreme Court heard oral argument on Nevada Department of Human Resources v. Hibbs Jan. 15. The case turns on the question of whether state employers may be sued by individuals for damages under the Family and Medical Leave Act (FMLA).
Arguing in support of the decision by the 9th U.S. Circuit Court of Appeals that the FMLA applies to state employers, Hibbs took the position that the leave act lawfully overcame states´ constitutional immunity from prosecution. The state of Nevada countered that the FMLA was an "everyday employment law," no more able to breach state immunity than the Americans with Disabilities Act or the Age Discrimination in Employment Act ¾ neither of which applies to state employers, the Supreme Court said during its 2001-2002 term.
Viet D. Dinh, assistant attorney general for the office of Legal Policy, U.S. Department of Justice, argued that the FMLA had been drafted "as part of a broad-based congressional scheme to eliminate sex-based employment discrimination." The family leave law was firmly grounded in the U.S. Constitution´s 14th Amendment guarantee of equal protection under the laws, not ¾ as the state of Nevada argued ¾ in the Commerce Clause, Dinh urged.
The chief point of contention between the parties was whether the U.S. Congress had proven or had simply assumed that state employers discriminated against women when they granted parental and family leave. If the law was not drafted to remedy actual discrimination, its ability to abrogate constitutional protections of states´ rights would be eroded.
Paul G. Taggart, Nevada´s deputy attorney general, argued that when Congress was considering the FMLA, it had had no real evidence to support the proposition that state employers had a "pattern and practice" of discriminating on the basis of gender either in hiring or in the granting of family leave. But Justice Scalia noted that "Congress said in the language of the [FMLA] that it was legislating in conformity with the Equal Protection Clause" of the 14th Amendment.
Justice Breyer added that that "the statute says that assumptions about sex roles have put the [domestic] burden on women. I´d have thought that this sounds like equal protection of women."
The Court´s opinion in Nevada Department of Human Resources v. Hibbs is expected to be issued before July 2003.
Standing to sue under the FMLA is discussed in the Family and Medical Leave Handbook published by Thompson Publishing Group.. More information on the Handbook is available at:
www.thompson.com/libraries.