The Supreme Court holds that sovereign immunity mandated dismissal of an employee's claim under the FMLA's "self-care" provision against a state.

The Supreme Court determined that the FMLA's "self-care" provision did not apply to the states because Congress failed to properly abrogate the state's Eleventh Amendment immunity when it enacted the "self-care" provision of FMLA. There, the plaintiff filed a lawsuit against his former employer, an instrumentality of the state of Maryland, after he requested sick leave under the FMLA's "self-care" provision and was informed that he would be terminated if he did not resign his employment. In rejecting the plaintiff's claims for damages against the state, the Supreme Court found that while, the FMLA (and, in particular, the "self-care" provision) expressly stated that it applies to "public agenc[ies]," including the states, Congress failed to properly abrogate the states' immunity in accordance with Section 5 of the Fourteenth Amendment. In so holding, the Supreme Court stated that Congress must tailor legislation under Section 5 "to remedy or prevent conduct transgressing the Fourteenth Amendment's substantive provisions."

For instance, when Congress enacted the FMLA (and, in particular, the "family leave" provision), it relied on evidence that states had facially discriminatory leave policies that provided longer leaves to women than men and/or administered neutral family-leave policies in gender-biased ways, which Congress found to be a "pervasive sex-role stereotype that caring for family members is women's work." While the Supreme Court did note that Congress properly abrogated states' immunity if they violated the FMLA's "family leave" requirements, the "same could not be said for requiring the states to give all employees the opportunity to take self-care leave." In particular, the Court reasoned that the "self-care" provision lacks "evidence of a pattern of state constitutional violation accompanied by a remedy drawn in narrow terms to address or prevent those violations" and, accordingly, states are not liable for damages if that provision of the FMLA is violated.

Case Law Alert - 3rd Qtr 2012