The U.S. Supreme Court ruled Tuesday that states cannot be sued for money damages for failing to give an employee time off under the Family and Medical Leave Act to recover from an illness. The vote was 5 to 4 with no legal theory commanding a clear majority.
The ruling came in the case of Daniel Coleman, who sued the state of Maryland for damages, contending he was fired after he asked for 10 days' sick leave to deal with a documented illness. He sued under the 1993 Family and Medical Leave Act, a federal law that requires all employers to provide 12 weeks of unpaid leave to workers for the care of a newborn, other family members who are sick, or for the employee's own serious health condition.
In 2003, the U.S. Supreme Court ruled 6-3 against a constitutional challenge brought by the states. Writing for the court, then-Chief Justice William Rehnquist, a conservative, said that the mandated leave to take care of family members was a valid exercise of congressional power aimed at eradicating sex discrimination. The law, he said, was properly targeted at ensuring that employers did not discriminate against women because of the erroneous perception that female workers take more time off work to deal with family illness.
The 2003 ruling, however, did not deal with one provision of the law providing unpaid leave for self-care when an employee is sick or unable to work because of pregnancy. On Tuesday, the Supreme Court ruled that provision unconstitutional as applied to damage suits against state governments.
The three dissenters from 2003 — Justices Anthony Kennedy, Clarence Thomas and Antonin Scalia — prevailed this time, with the help of two new members of the court, Chief Justice John Roberts and Justice Samuel Alito.
All three female justices dissented, joined by Justice Stephen Breyer. Justice Ruth Bader Ginsburg, who was fired from a job decades ago when she became pregnant, delivered a rare oral dissent from the bench.
The five justices in the majority did not agree on their legal reasoning. But Kennedy wrote the plurality opinion, declaring that Congress failed to identify a "pattern of constitutional violations" that would justify employees suing sovereign states for money damages. Kennedy said the self-care provision of the FMLA is different from the family-care provisions that were upheld in 2003 because there is no "widespread evidence of sex discrimination or sex stereotyping in the administration of sick leave," and no evidence that women are discriminated against because they are perceived as taking more sick leave.
He acknowledged that the self-care provision offers some women a benefit by allowing them to take leave for pregnancy-related illness, but he said that pregnant women could avail themselves of sick leave plans available to 95 percent of state employees.
Scalia wrote a separate concurring opinion agreeing with the judgment, but he said both the majority and dissenting opinions "make no sense."
Ginsburg, in her oral dissent from the bench, noted that the FMLA was enacted to end discrimination against women in the workplace by protecting them from losing their jobs because of pregnancy or childbirth. Congress, she said, sought to prevent sexual stereotyping by making family and illness-related leave available to men and women on an equal basis.
Ginsburg said that Congress determined "the best way to protect women against losing their jobs because of pregnancy or childbirth ... was not to order leaves for women only, for that would deter employers from hiring them. Instead, Congress adopted leave policies from which all could benefit."
Ginsburg's dissenting opinion was joined by Justices Sonia Sotomayor, Elena Kagan and Breyer.