Nevada Department of Human Resources v. Hibbs - (2003)
A five-justice majority has
consistently acted to protect states against lawsuits under federal law filed
in federal courts over the objections of a four-justice minority that believes
Congress should be given broad latitude to expand access to the courts. Board
of Trustees of the
In 1993 Congress passed the FMLA. The law entitles eligible employees to take
up to twelve weeks of unpaid leave annually in response to specified family
situations, including a serious health problem facing a child, spouse, or
parent. It also creates an employee right to seek equitable relief and monetary
damages in state or federal court against any employer who denies the rights
guaranteed by the statute.
In 1997 William Hibbs, an employee in the welfare
division of the Nevada Department of Human Resources, requested FMLA leave in
order to care for his wife, who had sustained neck injuries in an automobile
accident. The department granted Hibbs the requested
leave, allowing him to take the full twelve weeks and permitting him to take
the time intermittently as needed between May and December of that year. Hibbs did so until August 5, after which he did not return
to work. In October the department informed Hibbs
that he was required to report back to work by November 12. When Hibbs failed to do so, he was fired.
Hibbs filed suit in federal district court and
requested damages, claiming that the department had violated his FMLA rights.
chief
justice rehnquist delivered the opinion of the Court.
For over a century now, we have made
clear that the Constitution does not provide for federal jurisdiction over
suits against nonconsenting States. Board of
Trustees of Univ. of Ala. v. Garrett (2001); Kimel
v. Florida Bd. of Regents (2000); College Savings Bank v. Florida
Prepaid Postsecondary Ed. Expense Bd. (1999); Seminole Tribe of Fla. v.
Florida (1996); Hans v. Louisiana (1890).
Congress may, however, abrogate such immunity in federal court if it makes its
intention to abrogate unmistakably clear in the language of the statute and
acts pursuant to a valid exercise of its power under §5 of the Fourteenth
Amendment.... This case turns, then, on whether Congress acted within its
constitutional authority when it sought to abrogate the States’ immunity for
purposes of the FMLA’s family-leave provision.
In enacting the FMLA, Congress relied on two of the powers vested in it by the
Constitution: its Article I commerce power and its
power under §5 of the Fourteenth Amendment to enforce that Amendment’s
guarantees. Congress may not abrogate the States’ sovereign immunity pursuant
to its Article I power over commerce. Seminole Tribe.
Congress may, however, abrogate States’ sovereign immunity through a valid
exercise of its §5 power, for “the Eleventh Amendment, and the principle of
state sovereignty which it embodies, are necessarily limited by the enforcement
provisions of §5 of the Fourteenth Amendment.” Fitzpatrick
v. Bitzer (1976).
Two provisions of the Fourteenth Amendment are relevant here: Section 5 grants
Congress the power “to enforce” the substantive guarantees of §1--among them,
equal protection of the laws--by enacting “appropriate legislation.” Congress
may, in the exercise of its §5 power, do more than simply proscribe conduct
that we have held unconstitutional. “‘Congress’ power “to enforce” the
Amendment includes the authority both to remedy and to deter violation of
rights guaranteed thereunder by prohibiting a
somewhat broader swath of conduct, including that which is not itself forbidden
by the Amendment’s text.’” Garrett, (quoting Kimel). In other words, Congress may enact
so-called prophylactic legislation that proscribes facially constitutional
conduct, in order to prevent and deter unconstitutional conduct....
The FMLA aims to protect the right to be free from gender-based discrimination
in the workplace. We have held that statutory classifications that distinguish
between males and females are subject to heightened scrutiny. See, e.g., Craig v. Boren, (1976). For a gender-based
classification to withstand such scrutiny, it must “serv[e]
important governmental objectives,” and “the discriminatory means employed
[must be] substantially related to the achievement of those objectives.”
The history of the many state laws limiting women’s employment opportunities is
chronicled in--and, until relatively recently, was sanctioned by--this Court’s
own opinions. For example, in Bradwell v.
State (1873), and Goesaert v. Cleary
(1948) the Court upheld state laws prohibiting women from practicing law and
tending bar, respectively. State laws frequently subjected women to distinctive
restrictions, terms, conditions, and benefits for those jobs they could take.
In Muller v. Oregon (1908), for example, this Court approved a state law
limiting the hours that women could work for wages, and observed that 19 States
had such laws at the time. Such laws were based on the related beliefs that (1)
woman is, and should remain, “the center of home and family life,” Hoyt v.
Florida (1961), and (2) “a proper discharge of [a woman’s] maternal
functions--having in view not merely her own health, but the well-being of the
race--justif[ies] legislation to protect her
from the greed as well as the passion of man,” Muller. Until our
decision in Reed v. Reed (1971), “it remained the prevailing doctrine
that government, both federal and state, could withhold from women
opportunities accorded men so long as any ‘basis in reason’”--such as the above
beliefs--“could be conceived for the discrimination.”
Congress responded to this history of discrimination by abrogating States’
sovereign immunity in Title VII of the Civil Rights Act of 1964, and we
sustained this abrogation in Fitzpatrick. But state gender
discrimination did not cease. “[I]t can hardly be doubted that ... women still
face pervasive, although at times more subtle, discrimination ... in the job
market.” Frontiero v.
As the FMLA’s legislative record reflects, a 1990
Bureau of Labor Statistics (BLS) survey stated that 37 percent of surveyed
private-sector employees were covered by maternity leave policies, while only
18 percent were covered by paternity leave policies. The corresponding numbers
from a similar BLS survey the previous year were 33 percent and 16 percent,
respectively. While these data show an increase in the percentage of employees eligible for such leave, they also show a widening
of the gender gap during the same period. Thus, stereotype-based beliefs about
the allocation of family duties remained firmly rooted, and employers’ reliance
on them in establishing discriminatory leave policies remained widespread.
Congress also heard testimony that “[p]arental leave
for fathers ... is rare. Even ... [w]here child-care leave policies do exist,
men, both in the public and private sectors, receive notoriously discriminatory
treatment in their requests for such leave.”... This and other differential
leave policies were not attributable to any differential physical needs of men
and women, but rather to the pervasive sex-role stereotype that caring for
family members is women’s work.
Finally, Congress had evidence that, even where state laws and policies were
not facially discriminatory, they were applied in discriminatory ways....
In sum, the States’ record of unconstitutional participation in, and fostering
of, gender-based discrimination in the administration of leave benefits is
weighty enough to justify the enactment of prophylactic §5 legislation.
By
creating an across-the-board, routine employment benefit for all eligible
employees, Congress sought to ensure that family-care leave would no longer be
stigmatized as an inordinate drain on the workplace caused by female employees,
and that employers could not evade leave obligations simply by hiring men. By
setting a minimum standard of family leave for all eligible employees,
irrespective of gender, the FMLA attacks the formerly state-sanctioned
stereotype that only women are responsible for family caregiving,
thereby reducing employers’ incentives to engage in discrimination by basing
hiring and promotion decisions on stereotypes.
For the above reasons, we conclude that [the Act] is congruent and proportional
to its remedial object, and can “be understood as responsive to, or designed to
prevent, unconstitutional behavior.”
The judgment of the Court of Appeals is therefore Affirmed.
justice
stevens, concurring
in the judgment.
The plain language of the Eleventh
Amendment poses no barrier to the adjudication of this case because respondents
are citizens of
justice
kennedy, with whom justiceS scalia and thomas
join, dissenting.
The Family and Medical Leave Act of
1993 makes explicit the congressional intent to invoke §5 of the Fourteenth
Amendment to abrogate state sovereign immunity and allow suits for money
damages in federal courts. The specific question is whether Congress may impose
on the States this entitlement program of its own design, with mandated
minimums for leave time, and then enforce it by permitting private suits for
money damages against the States. This in turn must be answered by asking
whether subjecting States and their treasuries to monetary liability at the
insistence of private litigants is a congruent and proportional response to a
demonstrated pattern of unconstitutional conduct by the States. [The Act’s
leave provision], in my respectful view, is invalid to the extent it allows for
private suits against the unconsenting States....
The Court is unable to show that States have engaged in a pattern of unlawful
conduct which warrants the remedy of opening state treasuries to private suits.
The inability to adduce evidence of alleged discrimination, coupled with the
inescapable fact that the federal scheme is not a remedy but a benefit program,
demonstrate the lack of the requisite link between any problem Congress has
identified and the program it mandated....
... What is at issue is only whether
the States can be subjected, without consent, to suits brought by private
persons seeking to collect moneys from the state treasury. Their immunity
cannot be abrogated without documentation of a pattern of unconstitutional acts
by the States, and only then by a congruent and proportional remedy. There has
been a complete failure by respondents to carry their burden to establish each
of these necessary propositions. I would hold that the Act is not a valid abrogation
of state sovereign immunity and dissent with respect from the Court’s
conclusion to the contrary.
justice scalia, dissenting.
I join justice kennedy’s dissent, and add one further observation:
The constitutional violation that is a prerequisite to “prophylactic”
congressional action to “enforce” the Fourteenth Amendment is a violation by
the State against which the enforcement action is taken. There is no guilt
by association, enabling the sovereignty of one State to be abridged under §5
of the Fourteenth Amendment because of violations by another State, or by most
other States, or even by 49 other States....
Today’s opinion for the Court does not even attempt to demonstrate that each one of the 50 States covered by [the Act] was in violation of the Fourteenth Amendment. It treats “the States” as some sort of collective entity which is guilty or innocent as a body. “[T]he States’ record of unconstitutional participation in, and fostering of, gender-based discrimination,” it concludes, “is weighty enough to justify the enactment of prophylactic §5 legislation.” This will not do. Prophylaxis in the sense of extending the remedy beyond the violation is one thing; prophylaxis in the sense of extending the remedy beyond the violator is something else....