Family & Medical Leave Act Case Before U.S. Supreme Court

Will the Supreme Court strike down the Family & Medical Leave Act’s application to state employees? Even veteran court watchers had some trouble predicting what the Court might do after arguments Wednesday in Nevada Department of Human Resources v. Hibbs. This case is the latest in a string of cases known as “federalism” or “states’ rights” cases, because they involve the extent which Congress can require states to follow federal laws. In recent years, the Supreme Court has struck down several federal employment laws that previously applied to state governments, such as the Age Discrimination in Employment Act and the Americans with Disabilities Act, because the Court ruled Congress had exceeded its constitutional powers when mandating that states comply with these laws, and some fear that the Court will rule the same way and eliminate FMLA protections for state employees.

William Hibbs, who worked for the Nevada state welfare office, sought to take unpaid leave to care for his wife, Diane, who had been seriously injured in a car accident seven years ago. (See AP story.) The result of Hibbs’ long legal battle has ended up before the Supreme Court, which could be on the verge of eliminating most or all antidiscrimination protections under federal law for state employees. While a 1975 case, Fitzpatrick v. Bitzer permitted suits against state employers for violating Title VII of the Civil Rights Act of 1964, the basic federal law against sex discrimination in employment, the questions asked by one Supreme Court Justice, Justice Sandra Day O’ Connor, indicate that even Title VII might be in trouble if a future case involving Title VII comes before the Supreme Court. (See NY Times story.) Another potential outcome could be drastically reduced FMLA protections that merely prevent states from discriminating against either women or men because of their sex in granting leaves, not accompanied by any actual entitlement to unpaid leave, which many would consider meaningless. It is also possible (although some consider it unlikely) the Court could find the FMLA to be constitutional as applied to state employees. Whatever the outcome, the Hibbs case is unlikely to be the last in the ongoing federalism battle, as Chief Justice Rehnquist and his colleagues have given the green light to rolling back civil rights protections in several previous opportunities, and conservatives emboldened by those victories appear determined to continue bringing more cases to the Supreme Court.