I was lucky enough to take a field trip from work yesterday to watch oral arguments at the Supreme Court. That would be enjoyable for me under any circumstances, but yesterday it was particularly exciting because the case I saw argued has very serious implications for women. The case, Coleman v. Maryland Court of Appeals, addresses whether state employees can sue their state employers for monetary damages for violations of the self-care provision of the Family and Medical Leave Act (FMLA).
What is the FMLA and why is it so important to women? The FMLA requires that large employers, including state employers, give their employees leave and allow them to return to their jobs should they need time off to care for a newborn, a newly adopted child, or a child, spouse or parent with a serious medical condition (the “family care provision”) or if they themselves should become ill or disabled, including as a result of pregnancy (the “self-care” provision). The FMLA has been extremely important for women, and especially single women heading families, in allowing them to take leave to care for themselves and their families without fear of disastrous economic consequences. Since the act’s passage in 1993, workers have used leave over 100 million times, underscoring its vital importance to workers and their families.
What does this case mean for the FMLA and for women? First, a little background: In 2003, in Nevada Department of Human Resources v. Hibbs, the Supreme Court held that a state employee could receive monetary damages from the state for violations of the family care provision of the act. Even though states are ordinarily immune from suit for monetary damages for violations of federal law, the Court allowed them in Hibbs because of strong evidence that Congress intended to address unconstitutional gender discrimination in passing the FMLA. When Congress is enforcing the Constitution’s protections against discrimination, it has the power to make states liable for damages; in contrast, if Congress is just passing a law regulating employment that does not seek to protect against unconstitutional discrimination, it does not. In Hibbs, the Court explained that the “FMLA aims to protect the right to be free from gender-based discrimination in the workplace,” by removing “the pervasive sex-role stereotype that caring for family members is women’s work.”
Which brings us to the Coleman case I watched yesterday: In this instance it is argued that, while the family care provisions of the FMLA might be intended to fight gender discrimination, the self-care provisions are not, and state employees should not have the right to monetary damages. What this would mean in practice is that state employees could not receive full redress for violations of the self-care provision of the FMLA. This would be a disastrous outcome for the millions of state employees around the country.
Given the stakes, I was a little nervous to watch the arguments. But despite some tough questioning from the Justices, I was relieved to hear convincing arguments raised about why the self-care provision of the FMLA was just as important to Congress in combatting gender discrimination in the workplace as the family care provision. For one, the self-care provision, like the family-care provision, uniquely protects women in the pregnancy context, where women must often take leave not just to care for a new child, but to deal with pregnancy-related consequences for their own health. Additionally, without the self-care provision, the family-care provision would be far less effective in combatting discrimination because employers will assume that women are more likely to take family care leave than men and thus be disincentivized to hire women.
After watching yesterday’s arguments, I wish I could say that I knew the Justices were as convinced as I am. Unfortunately, I left without being sure of how this case will come out. I can only hope that this Court will not continue its trend of decisions that hurt women and make the right decision.