This is another of those wacky 11th Amendment cases that the Supreme Court has been entertaining lately.
Daniel Coleman was fired by the Maryland Court of Appeals after he requested ten days off because of personal illness. He sued his employer, a state institution, for violating the federal Family Medical Leave Act. The Maryland Court contended that under the Constitution it is immune from liability because of the newly-minted constitutional principle of state sovereign immunity, and the United States Court of Appeals for the Fourth Circuit agreed with the state employer.
Over the past twenty years the Supreme Court has resurrected the concept of “state sovereign immunity” as a constitutional principle under the authority of the 11th Amendment. Essentially, if Congress enacts a law pursuant to the Commerce Clause, it may not authorize private damage actions against state governments, but if Congress enacts a law pursuant to the 14th Amendment it may authorize private damage actions against state governments.
One portion of the FMLA permits workers to take leave to care for others. In Nevada Department of Human Resources v. Hibbs, 538 U.S. 721 (2003) the Supreme Court ruled that this portion of the law had been enacted pursuant to the 14th Amendment because Congress was responding to “the States' record of unconstitutional participation in, and fostering of, gender-based discrimination in the administration of leave benefits.” As a result the plaintiff was permitted to sue her employer for money damages. However, Hibbs may not apply in this case because Coleman was fired not for requesting leave to care for others, but rather for himself. The issue before the Supreme Court is whether Congress enacted the “self-care” provision of the FMLA pursuant to the Commerce Clause or pursuant to Section 5 of the 14th Amendment.
In Coleman v. Maryland Court of Appeals, 626 F.3d 187 (2010), the Fourth Circuit Court of Appeals ruled against Coleman and found that the plaintiff’s self-care claim was barred by the Eleventh Amendment. Five other Circuit Courts have come to the same conclusion in similar cases, and this would seem consistent with the Court's previous decisions distinguishing Commerce Clause legislation from laws enforcing the 14th Amendment, even within the same general statute. Compare Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356 (2001) (state sovereignty immunity precludes claims for employment discrimination brought by disabled individual against the state university under Title I of the federal Americans with Disabilities Act) with Tennessee v. Lane, 541 U.S. 509 (2004) (Stevens, J.) (upholding validity of Title II of Americans with Disabilities Act as applied to State that failed to provide handicapped access to courtroom) (“we find that Title II unquestionably is valid § 5 legislation as it applies to the class of cases implicating the accessibility of judicial services ….”).
At oral argument the Court spent most of its time questioning the attorneys whether the "self-care" provision of the FMLA, like the other provisions, was enacted to prohibit gender discrimination in employment which would be an Equal Protection problem, or whether it was enacted simply to protect disabled workers which would be a Commerce Clause problem.
Another issue in the case is that the Fourth Circuit Court of Appeals dismissed Coleman's entire case; not just his suit for money damages, but also any claim he may have made for reinstatement. Beginning at page 14 of oral argument, Justice Alito suggested that Coleman's claim for reinstatement, if he made one, would not be barred by the Eleventh Amendment and that the decision of the Fourth Circuit should be modified to permit that portion of his claim to go forward. At page 15 of the transcript Justice Kennedy said, "The Eleventh Amendment primarily protects the treasuries of the state against money damages," implying that it does not protect the states from equitable relief like injunctive orders to reinstate an employee.
The Supreme Court has not yet issued its decision in this case.
Wilson Huhn teaches Constitutional Law at The University of Akron School of Law.