In a case illustrating how a minority position can shift into a majority holding, the Supreme Court of the United States held in Coleman v. Court of Appeals of Maryland, — U.S. — (March 20, 2012), that sovereign immunity bars lawsuits against States under self-care provision of the Family Medical and Leave Act (FMLA) The FMLA requires certain large employers, including States, to grant unpaid leave for self care for a serious medical condition, provided other requirements are also satisfied.
Coleman was an employee of the Maryland Court of Appeals and sued the State of Maryland under the FMLA for denying him self-care leave. The trial court dismissed Coleman’s claim, and the United States Court of Appeals for the Fourth Circuit affirmed, holding that, unlike the FMLA’s family-care provision, the self-care provision was not created to correct an identified pattern of gender-based discrimination and was not congruent and proportional to any pattern of sex-based discrimination on the part of States.
In 2003, a three justice minority would have held States immune under the family-care provision. Then, in Nevada Dept. of Human Resources v. Hibbs, 538 U. S. 721 (2003), the Court held in a 6-3 decision that mandated leave for the care of family members is a valid exercise of congressional power aimed at eradicating sex discrimination. The law, the former Chief Justice wrote, was appropriately directed to ensuring employers did not discriminate against women because of the erroneous perception that women take more time off work to care for children and other sick family members. “The same cannot be said for requiring the States to giveall employees the opportunity to take self-care leave,” Justice Kennedy wrote in Coleman.
All three female justices dissented, as did Justice Stephen Breyer. Of note, the lead dissenting justice, Justice Ruth Bader Ginsburg, was once fired after she became pregnant.