- The Washington Times - Wednesday, May 28, 2003

The Supreme Court ruled yesterday that a Nevada social worker may sue the state for firing him in violation of the Family and Medical Leave Act, a decision that raised the first barrier to states’ broad 11th Amendment immunity against private lawsuits.

The 6-3 decision interrupted the court’s string of at least 10 rulings since 1996 protecting states from lawsuits for violating wage and hour laws and patent laws, discriminating against aged and disabled workers, violating the false claims act, breach of contract, and usurping American Indian tribal rights.

Chief Justice William H. Rehnquist wrote yesterday’s opinion, which said the Family and Medical Leave Act was different because it protected “the right to be free from gender-based discrimination in the workplace” for some 4.8 million state employees.

That sex-discrimination distinction was the key in breaking a line of close decisions that some analysts predicted would be the defining mark of conservatism for “the Rehnquist Court” in legal history books.

Joining him in the majority opinion were Justices Sandra Day O’Connor, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer. Justice John Paul Stevens concurred in the judgment but explained his reasons separately. Dissenters were Justices Anthony M. Kennedy, Antonin Scalia and Clarence Thomas.

Previous decisions shielded states from private attempts to enforce a whole series of acts of Congress, permitting lawsuits solely in instances of outright constitutional violations.

“Congress may do more than outlaw what is already unconstitutional,” said Pamela Harris, the Washington lawyer who prepared a brief for the National Women’s Law Center.

That brief, and one from the Justice Department, sided with William Hibbs, a social worker who reviewed food-stamp applications. He insisted that his request to take five weeks of “catastrophic leave” under state law not be included as part of 12 weeks’ absence under the federal Family and Medical Leave Act, allowing workers to take time off for family emergencies.

Mr. Hibbs’ bosses disagreed and fired him when his leave expired while he remained home caring for his wife, who was critically injured in an automobile accident.

“The Hibbses are so pleased, not for getting their lives back but for a decision vindicating the rights of state workers everywhere,” said their attorney, Treva J. Hearne of Reno, Nev. She said Mr. Hibbs was reduced to doing odd jobs and had to move to an $8,000 house in an old mining camp.

Miss Hearne said Mr. Hibbs was seeking reinstatement in his state job, back pay since his firing in 1997, about $300,000 in medical expenses that would have been covered by health insurance had he not been fired, and attorneys’ fees for a fight that other lawyers considered futile.

“In 1997, after the patent decision ruled Florida couldn’t be sued, it still didn’t look like it was going to be as pervasive as it was. On the other hand, I’m an ex-hippie, and I tend to tilt at windmills,” a delighted Miss Hearne said yesterday.

She said state legislatures, including Nevada’s, had moved to waive immunity from lawsuits on some issues and that Congress had backed off in the face of decisions that built a wall of immunity for state actions that defied federal laws.

Defenders of states’ sovereign immunity said the chief justice was incorrect in classifying the Family and Medical Leave Act as protection against sex discrimination.

“To me, this whole thing is social engineering,” said Deborah J. LaFetra of the Pacific Legal Foundation, which supported Nevada in maintaining that Congress had invoked Section 5 of the 14th Amendment improperly to abrogate state immunity.

“It’s disappointing because we didn’t really view this as having anything to do with gender discrimination. It’s an economic entitlement,” she said.

Neither Miss LaFetra nor Miss Harris could predict other laws that also might trump state immunity under yesterday’s ruling.

“It’s a little bit hard to say,” said Miss Harris, who pointed out that the court linked the decision to which social group a piece of legislation sought to protect.

“From my perspective, we think it’s a fabulous opinion, both in the area of federalism and [its] extraordinary sensitivity to the nuances of discrimination in the workplace,” she said. “With the line they draw, gender and race fall on the same side and that gives Congress much more leeway.”

Chief Justice Rehnquist wrote that Congress abrogated some state sovereign immunity when it enacted Title VII of the Civil Rights Act of 1964, but he said that did not end sex discrimination by government. He cited the 1973 Frontiero v. Richardson case in which an Air Force officer represented by an American Civil Liberties Union lawyer named Ruth Bader Ginsburg sought military spousal benefits for her husband.

“According to evidence that was before Congress when it enacted the FMLA, states continue to rely on invalid gender stereotypes in the employment context, specifically in the administration of leave benefits. Reliance on such stereotypes cannot justify the States’ gender discrimination in this area,” the chief justice wrote.

In his dissent, Justice Kennedy said states’ immunity from lawsuits can be overridden only with “documentation of a pattern of unconstitutional acts by the states.” He said no such pattern had been shown.

Justice Scalia said the court had not tried to show that each of the 50 states denied equal treatment and instead treated the states “as some sort of collective entity which is guilty or innocent as a body.”

Thirteen states, including Virginia, supported Nevada, while six others and the Bush administration said states should be forced to defend damage claims.

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