Nevada Department of Human Resources, et al. v. Hibbs, Willliam, et al. (05/27/2003)

Questions presented

Whether 29 U.S.C. 2612(a)(1)(C), the family medical care provision of the Family and Medical Leave Act of 1993, is a proper exercise of Congress's power under Section 5 of the 14th Amendment, thereby constituting a valid exercise of congressional power to abrogate the states' 11th Amendment immunity from suit by individuals?

BY NANCY PERLA, MEDILL NEWS SERVICE

In September of 1997, William Hibbs, an employee of the Nevada Department of Human Resources, requested 12 weeks off from work, unpaid, to care for his sick wife.

Hibbs asked for the time off under the Family and Medical Leave Act, (FMLA), which was passed by Congress in 1993 to alleviate sexually discriminatory hiring practices. The FMLA allowed for women and men to take three months off from work for family care without being fired.

The theory behind the FMLA was this: if both men and women are allowed to take extended amounts of time off of work, women would be less discriminated against at hiring-time, despite their potential to get pregnant and require maternity leave.

When William Hibbs' wife was in a serious car accident, he petitioned his employer for the maximum amount of FMLA time off, 12 weeks, to care for her during her surgery.

In addition, Hibbs was worried that his wifes depression, which was caused by the pain medication she was taking, required round-the-clock attention.

Hibbs was granted the time, and told to use it whenever he needed it until the upcoming holiday season that December.

The Department of Human Resources also provided him with 200 hours of paid time off, and called it "catastrophic leave."

Hibbs assumed that his catastrophic leave was time off in addition to his federally-granted 12 weeks. His employer disagreed. The Nevada Department of Human Resources fired Hibbs when he did not show up to work after that time, and claims he should have known the paid "catastrophe leave" was included within those three months.

"Essentially, his employer asked him to choose between his job and his wife," said Treva Hearne, the attorney defending William Hibbs. "He chose his wife. But the FMLA was intended to alleviate choices like these."

Hibbs, who was fired on Dec. 22, 1997, filed suit in federal court in Nevada and lost on summary judgment. The Nevada Department of Human Resources, because it is a branch of the Nevada state legislature, is constitutionally sheltered from suits, the court concluded.

Paul Taggart, the attorney for the Nevada Department of Human Resources, said: "This is about the 11th Amendment to the Constitution, which protects the states from prosecution.

"This is fundamentally a state sovereign immunity case. There are very limited ways in which Congress can waive a states immunity from lawsuits.

"If people are permitted to collect money from states through litigation, it takes away important funds that are necessary to the improvement of that state and they [the funds] are used to pay out plaintiffs instead," Taggart said.

Hibbs appealed to the 9th Circuit Court of Appeals. There, he successfully argued that Congress can negate certain Constitutional clauses.

In December of 2001, the 9th Circuit decided in Hibbs favor, saying, "the FMLA should be treated differently, because the FMLA is aimed at remedying gender discrimination, which is subject to heightened scrutiny."

"We were very pleased with the decision made by the 9th Circuit Court. We hope that opinion will stand," Hearne said.

This year, the Nevada Department of Human Resources petitioned the Supreme Court to clarify the issue whether the 11th Amendment bars a Congressional act.

On June 24, 2002, the U.S. Supreme Court accepted review in the case and allowed Hibbs to proceed in forma pauperis.

"Justice [Sandra Day] O'Connor will be the sway vote," Hearne said, "But it could go either way ... The real question is whether Congress can remedy sexual discrimination."

On May 27, 2003, the Court issued its opinion, which was 6-3 for Hibbs. Contrary to Hearne's expectations, it was not Justice O'Connor who provided the swing vote; it was Chief Justice William Rehnquist who authored the lead opinion. In the opinion, Rehnquist concluded for the majority that state employees may recover damages in federal court in the event of a state's failure to comply with the FMLA's family-care provision.

In so holding, the majority determined that Congress had expressly abrogated the state's 11th Amendment immunity in enacting the FMLA because it had before it significant evidence of a long and extensive history of sex discrimination with respect to the administration of leave benefits by states. Justice O'Connor was among the majority.

The Court's opinion was cognizant of its recent rulings that immunized states from suits by employees for discrimination on the basis of both age and disability. In explaining the different result here, Rehnquist wrote that in contrast, the Family and Medical Leave Act was expressly enacted to "protect the right to be free from gender-based discrimination in the workplace" by removing "the pervasive sex-role stereotype that caring for family members is women's work."

Unlike discrimination against the elderly and the disabled, which the Court had held in the past did not come with express findings by Congress that such discrimination by state employers was pervasive, here the Court took notice that there was a long history of discriminatory leave policies engaged in by states.

The dissenters -- Justices Anthony Kennedy, Antonin Scalia and Clarence Thomas -- took issue with that finding, arguing that there was a "paucity of evidence" to support the conclusion that states were engaging in widespread sex discrimination of a sort that would be remedied by the family leave law. "This is an entitlement program, not a remedial statute," Kennedy wrote.

Attorneys: For NV Dept. of Human Resources, et al.:Charles Hilsabeck1325 Airmotive Way,Suite 340Reno, NV 89502775-688-1818For William Hibbs, et al.:Treva J. HearneZeh, Spoo & Hearne575 Forest Street, Suite 200Reno, NV 89509Theodore B. OlsonSolicitor General, Counsel of RecordRobert D. McCallum, Jr.Assistant Attorney GeneralMark B. SternStephanie R. Marcus