Court Upholds FMLA Self-Care Provision Against Sovereign Immunity Defense

A magistrate judge in the Eastern District of Wisconsin has upheld the “self-care” provision of the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2615(a) against a claim that it violates states’ sovereign immunity.

Toeller v. State of Wisconsin Dep’t of Corrections, 296 F. Supp. 2d (E.D. Wis. Dec. 23, 2003).In so doing, the court declined to follow the lead of the only post-Hibbs Court of Appeals ruling on the issue.

The FMLA allows qualified employees to take unpaid leave from their jobs under four circumstances.  Three of these involve care of family members (birth and care of a child; adoption or foster care of a child; and care for a spouse, child or parent who has a serious health condition).  29 U.S.C. § 2615(a)(1)(A)-(C)).  The fourth, at issue here, is when the employee him or herself has a serious health condition.  Id. § 2615(a)(1)(D).  All four provisions apply to public as well as private employers.  The FMLA explicitly abrogates states’ sovereign immunity by making them subject to suit in federal court for damages and injunctive relief. 

Last year, the Supreme Court upheld the family-care provisions of the FMLA, Nevada Department of Human Resources v. Hibbs, 538 U.S. 721 (2003), finding Congress’s abrogation of sovereign immunity to be a valid exercise of its power under section 5 of the Fourteenth Amendment.  The Court’s decision rested on the substantial legislative history showing a history of gender discrimination premised on the view that family care was most appropriately a female obligation.  The Court found that the FMLA’s family-care provisions were “congruent and proportional” to their aim of preventing unconstitutional discrimination, especially in light of the heightened scrutiny given under the Constitution to state gender discrimination.  

It remains to be seen whether the Supreme Court will extend its ruling in Hibbs to the FMLA’s self-care provision. Prior to Hibbs, eight Courts of Appeals had held either that the self-care provision or the entire FMLA violated sovereign immunity.  See Brockman v. Wyoming Dep’t of Family Svcs., 342 F.3d 1159, 1165 n.3 (10^th Cir. 2003) (listing cases).  Hibbs overruled those decisions with respect to the family-care provisions; it is unclear if the courts will reconsider their decisions on the self-care provision. The key issue will be whether the provision is premised on the need to remedy gender discrimination. After reviewing the legislative history, the Toeller court concluded that the self-care provision is part of an attempt,

“to preclude any incentive for an employer to hire a man over a woman because, regardless of sex or family status, all eligible employees are entitled to leave under the FMLA.  And, at the same time, Congress has been able to address its concern about single mothers with serious illnesses by ensuring that they are entitled to leave for their own serious health condition.” 

Last fall, in the first Court of Appeals decision to reconsider the issue post-Hibbs, the Tenth Circuit reaffirmed its earlier holding that the FMLA’s self-care provision violates states’ sovereign immunity.  Brockman, 342 F.3d at 1165. But the Tenth Circuit itself acknowledged that “[t]here is a colorable argument to the effect that the self-care provision of the FMLA must be viewed as part of the Act as a whole, and that it would therefore be a valid abrogation of states’ sovereign immunity.”  Brockman, 342 F.3d at 1164.

On the other hand, in a  summary unpublished decision, Montgomery v. Maryland, 72 Fed.Appx. 17, 19 (4^th Cir. 2003), the Fourth Circuit applied Hibbs to uphold the entire FMLA, without distinguishing between the family-care and the self-care provisions.

Obviously, there is more to come on this topic.