Fair Courts

WomenMatter will continuously post updates on all this and other issues as we monitor the continuing philosophical and practical debates nationwide. Please check back often for updates. Past updates are available for reference on the Fair Courts Archives page.

Surprise! The Supreme Court Protects Family and Medical Leave for State Workers

May 27, 2003, our Supreme Court upheld the Family and Medical Leave Act (FMLA), which was passed by congress in 1993. The Court ruled 6-3 that under the Constitution states are not protected from or immune to lawsuits. This means that states can be sued for violating the state worker’s right to take time off to care for a family member.

This ruling, against what is called state immunity, does more than just protect state workers; it also makes clear statements to the American people and to the world about several important issues: gender discrimination in the workplace, gender discrimination as it compares with other forms of discrimination, and federal governing versus states’ rights. It also reveals the strategies of our parties and political leaders. If we watch our leaders closely, and have a political memory, we can see just how well they are representing us.

What’s gender got to do with it?

Since caretaking is traditionally considered women’s work, employers often assume that women will be less competent in the out-of-home workplace. Of course, this is an untruth, but it nevertheless prevents some women from professional advancement.

Family leave is very much about gender. Chief Justice Rehnquist argues that the FMLA works to fight gender discrimination because the legislation challenges traditional and oppressive gender roles. He said that the goal of the FMLA was to “protect the right to be free from gender-based discrimination in the workplace” and that it counteracts “the pervasive sex-role stereotype that caring for family members is women’s work.”

By recognizing men as possible full-time caregivers, family leave works against the myth that women are the “natural” caretakers. The FMLA enables both men and women to take up to twelve weeks to care for family members, including ailing parents, an ill or disabled husband or wife, or a newborn child.

The justices who dissented in this case, Anthony M. Kennedy, Antonin Scalia and Clarence Thomas, did so because they do not feel that there is sufficient evidence that gender discrimination limits women in the workplace.

Gender discrimination less "rational" than age or disability discrimination?

The ruling to uphold the FMLA is somewhat of a surprise because this court has set a precedent for ruling in favor of states’ immunity to discrimination legislation. For example, this court did not support The Age Discrimination in Employment Act and the Americans With Disabilities Act; their previous rulings have allowed states to discriminate against the elderly or disabled when it is “rational.” Gender-based discrimination, on the other hand, cannot be considered “rational” by the court because this form of discrimination is unconstitutional under the equal protection principle. While it is debatable that discrimination on the basis of age or disability is more “rational” than gender discrimination, the court’s argument underscores the importance of the Civil Rights Act, which ensures that federally-funded programs provide equal benefits to and treatment of women and girls.

Federal Power versus State Power

The court had to declare the Family and Medical Leave Act a remedy for discrimination in order to get past its own previous interpretation of the 11th Amendment. The 11th Amendment says that no lawsuit may be “prosecuted against one of the United States by Citizens of another State,” which strictly means that a resident of one state cannot sue another state, but five of the justices argue that this amendment bans citizens from suing their own state as well.

These justices are concerned with protecting states’ rights because one of the original intentions of the Constitution at a time of thirteen very separate states was to guard each state’s sovereignty. This court’s earlier interpretation of the 11th Amendment prevented people from suing the state for not living up to federal standards. But, in this case, the court decided to permit state workers to sue the state for violations of the FMLA – a decision that subordinates the state to federal legislation.

Changing Lanes- A Brief History of the FMLA

The George Bush Senior administration was not in favor of a federal family leave plan. Bush Senior considered it a “costly government mandate” that would increase the power of federal government, take power away from states, and cause unemployment; so, he proposed, as an alternative, a tax cut for businesses who allowed a worker to take time off.

The Family and Medical Leave Act was the first piece of legislation enacted by the Clinton administration. The current Bush administration supports the FMLA, and submitted a brief that urged the justices to support the law. The brief recognized the FMLA as a remedy for gender discrimination in the workplace, a discrimination that the administration considers a serious problem: “For generations, state laws and conduct relegated women to a position of social, cultural, economic, and political inferiority.”

So, the political parties agree. Highlighting the importance of the women’s vote and the intense lobbying of organizations, especially The National Partnership for Women and Families whose attorneys drafted the original legislation. Almost all of us recognize gender discrimination in the workplace, and government officials on all sides consider the FMLA to be a combatant of that discrimination. Men have been given the green light to stay home and take care of their babies or mothers or wives. 42% of those who to date have used FMLA are men. We can all be caregivers.

Posted on: 6/3/2003

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