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States Immune From Self-Care FMLA Claims

In  Coleman v. Court of Appeals of Maryland,  in a 5-4 plurality ruling, the U.S. Supreme Court held that states are immune from suit as sovereigns under the self-care provision of the Family and Medical Leave Act of 1993, 29 U.S.C. § 2601et seq.  Coleman was an employee of the Maryland Court of Appeals who was asked to resign when he requested sick leave.  His suit against the State was dismissed, with the dismissal affirmed by the Fourth Circuit. 

The Supreme Court had previously held that states were not immune from suit under the family-care provisions of the Act in Nevada Dept. of Human Resources v. Hibbs, 538 U.S. 721 (2003). The Court distinguished Hibbs by noting that in that case, there was evidence that the family-care provisions had been enacted because employers, including States,  had adopted or administered family-leave policies that differentiated on the basis of gender.  Congress’s attempt to combat such a pattern of gender-based discrimination was a valid exercise of its power to abrogate States’ immunity under the Fourteenth Amendment. However, there is no similar pattern of  sex-based discrimination relating to sick leave policies for state policies.    Accordingly, with respect to self-care provisions, the abrogation of the States’ immunity was not a valid exercise of congressional power.

The Court’s decision is consistent with that of each of the Courts of Appeal that have addressed the issue.

Kennedy authored the opinion, with Thomas and Alito joining.  Thomas filed a concurring opinion to restate his view that Hibbs had been wrongly decided. Scalia concurred in the judgment, restating his views that § 5 of the Fourteenth Amendment should be limited to permitting Congress to enforce actual violations of that amendment.

Ginsberg dissented, stating the view that the self-care provisions of the Act were part of the overall design to address gender discrimination in leave policies. The dissent was joined in full by Breyer, while Sotomayor and Kagan joined in all but Footnote 1. That footnote restated Ginsberg’s view that Congress has the power to abrogate the sovereignty of the states pursuant to the Commerce Clause.








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About this Author

Tami Cowden, Greenberg Traurig Law Firm, Las Vegas, Labor and Employment Litigation Attorney
Of Counsel

Tami D. Cowden has more than 25 years' experience as an appellate attorney with a focus on representations in the Nevada Supreme Court and the Ninth Circuit Court of Appeals. In local state and federal trial courts, she represents client in complex business and employment litigation matters. Cowden was the founding Chair of the State Bar’s Appellate Litigation Section. Before joining the firm, Tami was a member of the faculty of the University of Denver College of Law. She also served as a staff attorney with the Colorado Court of Appeals for several years.