Maryland man’s leave lawsuit lands in Supreme Court

WASHINGTON — Daniel Coleman is one in five million.

That’s how many state workers across the country would be affected if the Supreme Court decides Coleman can sue his former employer for violating the self-care provisions of the Family and Medical Leave Act.

Coleman, who worked in Maryland’s Administrative Office of the Courts, claims he was fired in 2007 for seeking 10 days of FMLA leave to deal with complications of diabetes.

So far, though, two courts have found the state is immune from suit. The Supreme Court took up the question on Wednesday.

While the high court has ruled that states can be sued under the FMLA’s family-care provisions, it has yet to rule on whether the same holds true for self-care.

The state argues that the self-care provisions are different because they are based on policy considerations rather than Equal Protection guarantees. Every federal appeals court to consider the question to date has agreed with that argument.

The family-care provision was enacted because those responsibilities had traditionally fallen on women, who needed protection from any adverse employment repercussions of such care. That amounted to a civil rights protection that trumped the states’ right to qualified immunity against suits.

At the high court on Wednesday, lawyers for both sides squared off on one key question: In giving people the right to take time off to care for themselves, was Congress seeking to address gender discrimination in the workplace? If so, the states can be sued.

‘Can’t have one …’

Michael L. Foreman, director of the Civil Rights Appellate Clinic at Penn State Law, argued on Coleman’s behalf that gender discrimination was Congress’ concern in enacting both the family-care and self-care provisions of FMLA.

But Justice Elena Kagan questioned “whether Congress was aiming to eradicate gender discrimination through this provision, or whether it was trying to do something else entirely.”

Congress was “attempting to address these gender-based stereotypes in a couple different ways,” Foreman said.

Justice Samuel Alito wasn’t so sure, since the self-care provision applies equally to everyone.

“I have difficulty seeing how providing 12 weeks of leave for self-care for both men and women affects the incentive of an employer who we will assume has an inclination to discriminate,” Alito said.

Foreman stressed that certain common reasons for taking extended leave — such as pregnancy — disproportionately affect women.

The provision “evens the ground,” Foreman said.

“Do you have any evidence that Congress in fact was thinking about” gender-based discrimination as related to the self-leave provision, Kagan asked.

Foreman cited testimony from the National Women’s Political Caucus about the bill, which stated that the “primary purpose is to stress that parental and medical leave are inseparable. In the words of the old song, ‘You can’t have one without the other.’”

Justice Ruth Bader Ginsburg wondered if any other law gives women the protection the plaintiff claimed to be the concern of the self-leave provision.

“If an employer decides, ‘I don’t want to hire women of child-bearing age,’ that is an out-and-out violation of the Pregnancy Discrimination Act, isn’t it?” Ginsburg asked.

Foreman said the goal under FMLA’s self-care provision was broader, giving women “the ability to take pregnancy-related leave [or] other leave [without] a negative inference running against women.”

Self-defeating

Maryland Deputy Attorney General John B. Howard Jr. began his argument by pointing at statistics and studies, including, he said, “Bureau of Labor Statistics studies indicating that men and women at the time took roughly the same amount of sick leave.”

Justice Sonia Sotomayor asked about congressional testimony citing some employers’ reluctance to hire women of child-bearing age.

“Frankly, for years there [were] questions about whether law firms were not hiring young women because they feared they would leave in the middle of a big case or something else,” Sotomayor said. “We all know those stories.”

“The Pregnancy Discrimination Act was already in place, and so to the extent there were perceptions that employers might discriminate based on pregnancy disabilities, that would be unlawful under Title VII,” Howard said.

But Justice Stephen Breyer asked if there were broader implications, and if the self-leave provision was designed to make sure employers can’t take their discriminatory inclinations out on women who are not caring for others.

“I think, reading this and listening, a major reason” for the self-leave provision “is because working with that 12-week [family-leave] limitation, and the whole rest of the statute, we now have a statute that doesn’t defeat itself,” Breyer said. “We now have a statute that actually can achieve the end of leading employers to not discriminate against women.”

“I think the premise of that point is that women will take more leave for serious health conditions than men,” Howard said. “And I don’t think that’s borne out.”

Kagan asked whether the fact that the self-care provision was passed “at the same moment on the basis of the same record” as the other provisions, which were aimed at gender discrimination, should make a difference in the immunity determination.

The provision establishing self-leave, Howard said, “provides a separate claim, a separate basis to sue states.”

“It’s a separate and independent claim and it’s an extraordinarily broad one,” Howard said. “And it is not necessary [to protect female workers] because Pregnancy Discrimination Act claims are available.”

A ruling is expected later this term.

Lawyers USA is a sister publication of The Daily Record.