Protection for Women Workers at Stake in Coleman

Today the Supreme Court heard oral argument in the most significant case about the Family and Medical Leave Act of 1993 (FMLA) and sex discrimination in employment since the landmark 2003 case Nevada Dep’t of Human Resources v. Hibbs. The case is Coleman v. Maryland Court of Appeals and, like Hibbs, it concerns the constitutionality of a provision of the FMLA, signed by President Clinton in his first act in office in 1993.

The FMLA contains a “self-care” provision that provides job security to eligible employees, including public sector workers, who may take 12 weeks of unpaid leave each year to recover from their own serious health conditions. The issue before the Supreme Court is whether state employees may sue their employers the same way employees of private companies can, if they are improperly denied FMLA leave to recover from an illness. Generally, states have heightened immunity from lawsuits, but the Constitution allows Congress to pass laws permitting suits against the government where necessary to protect constitutional rights — like the right to be free from sex discrimination. In Hibbs, the Supreme Court held that the family care provisions of the FMLA — which allow workers to take time off to care for a new baby or sick family member — are an appropriate congressional response to a long, sorry history of states engaging in unconstitutional sex discrimination by limiting women’s employment opportunities based on the stereotype that women should stay home and care for children, rather than engage in paid work.

At first blush, the issue of the validity of the FMLA’s self-care doesn’t appear to be about sex discrimination. Mr. Coleman sought to take leave to recover from his own serious medical condition. The history of the FMLA, however, reveals that the self-care provision was passed with the express purpose of providing job security for women who take unpaid leave to recover from childbirth. For example, the Senate report on the bill confirms that the self-care provision “would ensure that new mothers don’t lose their jobs when they temporarily cannot work due to pregnancy- and childbirth-related disability.” Congress passed the FMLA to address decades of discrimination by employers, including public employers, against pregnant workers. The ACLU and ACLU of Maryland joined an amicus brief explaining this history.

Maryland argues that the self-care provision has nothing to do with sex discrimination, and it points to the use of gender-neutral language in the law for support. But Congress made the provision gender-neutral to discourage employers from discriminating against women of childbearing age in hiring and promotion based on the assumption that they would get pregnant and use pregnancy leave.

So what’s at stake here? An unfavorable ruling would disproportionately affect women state employees. Women make up more than half of the public sector at the state and local level. It’s no secret that the recession has made job security even more important than before. In this environment, it is crucial that women workers know that if their employer violates their right to job security, they have recourse in the courts, whether the boss is a company or a state. The FMLA self-care provision is an important step toward eliminating sex discrimination — let’s keep moving forward, not taking steps back.

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, I agree with most of Ann's latest post, but I want to clirafy what I've been trying to say, particularly to John. I have deliberately not made the argument for why the FLMA's abrogation of sovereign immunity was constitutional because I don't want to muddy the waters: I want to critique Alito's reasoning, not debate FLMA on the merits.As I said in my first post, I don't think Alito's opinion was necessarily unreasonable but I do believe it was incomplete in a manner sufficient to give pause.Perhaps not everyone agrees, but I believe that if "judicial activism" describes anything, it describes court decisions which overturn duly-enacted legislation without sufficient justification.Alito believed the FLMA's abrogation of sovereign immunity was unconstitutional, and so had to be overturned. While I disagree with such a conclusion, such a conclusion is not inherently unreasonable.What troubles me was the way Alito got to that conclusion. As mentioned in my first post, he found (a) Congress did not have sufficient evidence of discrimination to justify such abrogation and (b) even if Congress did, such abrogation could not extend to the mandatory sick leave.My problem with (a) is that, like the Rehnquist opinion later noted, there was plenty of evidence of discrimination. Alito did not even address that evidence -- he passed right over it.My problem with (b) is that Alito gave no justification for why the enforcement provision could never apply to sick leave.I believe both (a) and (b) constitute judicial activism: if a judge feels duly-enacted legislation should be struck down, they have a duty to thoroughly review the entire record and expain all of their reasoning. Alito, however, failed to interpret the whole record and failed to explain all of his reasoning.As a liberal, this bothers me because such omission made it easier for him to reach the same policy outcome conservatives would have wanted, which was to eliminate the abrogation of sovereign immunity.Again, let me make clear that this does not inherently justify a filibuster, and it doesn't mean Alito is a hack or a "coward" or "idiot," as I apparently am. It is merely a critique of his reasoning, and a counterargument to Ann's critique of Tribe's article.

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