The Supreme Court has limited state employees' protections under the Family Medical Leave Act (FMLA) in its recent decision, Coleman v. Court of Appeals, No. 10-1016 (March 20, 2012). The Court was predictably divided 5-4 with all five Republican appointees (Roberts, Scalia, Thomas, Kennedy & Alito) voting against the employee, whil all four Democratic appointees (Ginsburg, Breyer, Kagan & Sotomayor) voting in favor of the employee.
The Court ruled in 2003 in Nevada Dept. of Human Resources v. Hibbs, 538 U.S. 1, that states did not have sovereign immunity against damages suits under the FMLA premised on a violation of 29 U.S.C. 2612(a)(1)(C), which regards care for a family member suffering from a "serious health condition." The ruling was premised on the reality that women by far most often took leave from work to care for ailing family members; thus, the Court ruled that Congress had properly abrogated the states' sovereign immunity from damages suits.
The Coleman case involved what the Court majority called the "self-care" provision under 29 USC 2612(a)(1)(D), which allows for unpaid leave for an employee to take care of themself, i.e., recover from their own illness or injury. The Court majority was utterly unmoved by the acknowledged reality that the FMLA's "self care" provision allowed single parents, who are disproportionately women, to retain their jobs:
The petitioner’s last defense of the self-care provision is that the provision helps single parents retain their jobs when they become ill. This, however, does not explain how the provision remedies or prevents constitutional violations. The fact that most single parents happen to be women demonstrates, at most, that the self-care provision was directed at remedying employers’ neutral leave restrictions which have a disparate effect on women. “Although disparate impactmay be relevant evidence of . . . discrimination . . . such evidence alone is insufficient [to prove a constitutional violation] even where the Fourteenth Amendment subjects state action to strict scrutiny.” To the extent, then, that the self-care provision addresses neutral leave policies with a disparate impact on women, it is not directed at a pattern of constitutional violations. Because, moreover, it is “unlikely that many of the [neutral leave policies] . . . affected by” the self-care provision are unconstitutional, “the scope of the[self-care provision is] out of proportion to its supposed remedial or preventive objectives.”
