Nevada Department of Human Resources v. Hibbs: Regulation or Simply Encouragement?
| Author | Allison K. Slagle |
| Pages | 869-895 |
Page 869
"A Boston attorney: 'When I returned from maternity leave, I was given the work of a paralegal. I wanted to say, 'I had a baby, not a lobotomy.'"1
"A supervisor to a woman eight months pregnant: 'I was going to put you in charge of that office, but look at you now.'"2
"A secretary: 'When you work part-time or temporary, they treat you differently, they don't take you serious.'"3
Rebecca Webb, a television anchor from Portland, Oregon, had an agreement with her employer for a three-month leave after the birth of her child.4 Just two months before her child was born, her employer rescinded the agreement.5 The employer decided this agreement would set unwanted precedent within the company, which would have to be followed between the employer and the other four pregnant women within the company at that time.6 Because Ms. Webb no longer had maternity leave available to her, she was forced to choose between her job and her newborn child, and she was ultimately forced to quit.7
Fathers who assume active caregiving roles are likely to face even more challenges than mothers.8 In a survey of large employers, 63% said it was unreasonable for a man to take any parental leave whatsoever, while another 17% considered a reasonable leave to be two weeks or less.9 Thomas Riley, an employee who had to provide for his seriously ill child is a perfect example.10 Thomas Riley's son was diagnosed with cancer whenPage 870 he was just 4-2 years old.11 At this time, Mr. Riley was hired as a supervisor for a company with the express understanding that he needed to spend time away from work to take his son to the doctor for treatments.12 Over the next six months, Mr. Riley worked at least fifty hours a week while he simultaneously cared for his son, whose condition was worsening.13 Mr. Riley only took six days away from work, all of which were unpaid.14 Just after his son died, Mr. Riley was fired for no reason.15
Our society in general values both men and women who surrender their personal time for their job.16 The Family Medical and Leave Act (FMLA)17 was enacted by Congress in 1993 to counteract gender discrimination in the workplace.18 It gives employees confidence to take necessary leave while providing them with job security.19 The details of the Act are provided below, but essentially, the FMLA provides eligible employees up to twelve weeks of unpaid leave per year to care for a newborn child, the placement of a child "with the employee for adoption or foster care," to care for certain family members suffering from serious health conditions, or for the employee's own serious health conditions.20
Under the Eleventh Amendment to the United States Constitution, states are immune from private damage actions in federal court.21 ThePage 871 principles of sovereign immunity are fully integrated and rooted into our nation; however, "Section 5 of the Fourteenth Amendment, along with a growing federal concern over the civil rights of all citizens, have created a tension between the principles of sovereign immunity and the power of the federal government."22 Congress derived its power to enact the FMLA from Section 5 of the Fourteenth Amendment, the Enforcement Clause, which allows Congress to enact legislation to abrogate the States' immunity in order to enforce provisions of the Fourteenth Amendment attempting to remedy and prevent sex discrimination in the workplace.23
Prior to Hibbs coming before the Ninth Circuit Court of Appeals, seven circuits had held that it was not within Congress' Section 5 power to enact the FMLA.24 Additionally, the district courts were "divided on the issue of Eleventh Amendment immunity under the FMLA."25 Nevada Department of Human Resources v. Hibbs,26 the subject of this Note, is the most recent in a line of cases beginning in 1996 addressing Congress' ability to abrogate the State's sovereign immunity. Significantly, Hibbs breaks the pattern of pro-state Supreme Court rulings protecting states' immunity from private lawsuits. Chief Justice Rehnquist's opinion in United States v. Morrison27 left many to wonder if Congress even had the power under Section 5 to propose national legislation since the Court in Morrison held that Congress did not have the power under Section 5 to enact the Violence Against Women Act merely because the act applied uniformly throughout the nation, when there were findings that discrimination against victims of gender-motivated crimes did not exist in all States.28 Specifically, Morrison left many to wonder whether sex-based discrimination cases involving states' sovereign immunity could in fact be remedied under Congress' Section 5 power. For the present, the Chief Justice's opinion in Hibbs has answered these questions: Congress does have the power under Section 5 to propose national legislation and sex-Page 872 based discrimination cases involving state's sovereign immunity can be remedied under Congress' Section 5 power.29
Part II of this Note discusses the background of the FMLA and the prior cases specifically addressing state sovereign immunity issues presented in Hibbs and Morrison, a case dealing with gender-based discrimination.30 Part III sets forth the facts in Hibbs. Part IV analyzes the majority decision, specifically the surprise decision by Chief Justice Rehnquist. Part V describes the significance and importance of the holding. Although supporters of the FMLA feel victorious after the Hibbs decision, a closer reading of the narrow holding and a better understanding of Chief Justice Rehnquist's conservative views indicates that the benefits of the FMLA, as it currently stands, will prove to be very minimal.
Congress enacted the Family and Medical Leave Act in response to the changing composition of families and the workforce in our society.31 Between 1950 and 1990, economic and social changes heightened the tensions between work and families.32 During those forty years, women in the workforce had increased by about one million workers each year.33 In 1993, 74% of women aged 25-54 were in the labor force.34 It was predicted that by year 2005, the total number of women in the labor force will equal 66.1%.35 Additionally, the increase in divorces, separations, and illegitimate children have left a significant number of women struggling between work and raising a family.36 Furthermore, during this time, Americans were living longer than ever before.37 As a result, the number of working children having to care for their elderly parents was rapidly increasing.38 Thus, Congress enacted the FMLA in response to the increased need for medical leave as a result of the increasing number ofPage 873 women in the work force, the rise in single heads of households, and the vast number of aging Americans.39
In enacting the FMLA, Congress set forth findings that explain many compelling reasons for the remedial legislation.40 Congress found that due to the "lack of employment policies to accommodate working parents," people may be forced to choose between job security and parenting.41 Corrective actions taken by different employers had proven inadequate.42 In fact, in 1993, the majority of employers did offer different sick and disability leaves; however, the types available were usually just vacation leaves.43 Congress further found that due to our societal roles of men and women, women are primarily responsible for the family caretaking; thus, women in the work force are affected more than men.44 Lastly, Congress found that "employment standards that apply to one gender only have serious potential for encouraging employers to discriminate against employees and applicants for employment who are of that gender."45
Congress provided very specific purposes for enacting the FMLA.46 The FMLA was Congress' attempt "to balance the demands of the workplace with the needs of families, to promote the stability and economic security of families, and to promote national interests in preserving family integrity."47 The FMLA serves to "entitle employees to take reasonable leave for medical reasons, for the birth or adoption of a child, and for the care of a child, spouse, or parent who has a serious healthPage 874 condition."48 The FMLA encourages the equal opportunity for both men and women in the workforce.49 The Act is consistent with the Equal Protection Clause of the Fourteenth Amendment because it ensures that leave is available for eligible medical and family reasons on a gender-neutral basis.50 Significantly, although the FMLA is expressed in gender-neutral terms, it is aimed to fight gender-based discrimination in employment.51 "[The] discrimination-founded on stereotypical notions of sex roles-hurts men...
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