Supreme Court ruling on major FMLA case

Employees’ ability to sue states hangs in the balance

On Jan. 15, 2003, the United States Supreme Court heard oral arguments in Nevada Department of Human Resources v. Hibbs, a case that will determine whether the approximately 5 million state employees in the United States can recover damages when their employers violate the Family & Medical Leave Act (FMLA).

"Most basically, what is at stake is whether hard-working American families have the right to take time to care for loved ones in an emergency and not have to worry about losing their job," says Debra Ness, executive vice president of the Washington, DC-based National Partnership for Women & Families, which is serving as co-counsel to William Hibbs in the Supreme Court Case. "In this case, Nevada claims that states don’t have to comply with the FMLA, which means that about 5 million state employees and their families would not have the same protection as other workers."

Since the enactment of the FMLA, more than 35 million Americans have taken advantage of its provisions — 42% of whom have been men, notes Ness. "That’s one of the most important aspects of the FMLA — the premise that both women and men need to be able to take care their families and their jobs," she says.

History of the case

The case has its origins in 1996, when Hibbs was a social worker for the Welfare Division of the Nevada Department of Human Resources. His wife suffered a severe neck injury, which ultimately led to addiction to painkillers and depression, among other medical complications.

Hibbs planned to use his 12 weeks of unpaid FMLA leave to care for his wife, but while the request was pending, he learned he might be eligible to receive donations of paid leave through a discretionary state fund. Three weeks into his FMLA leave, he was granted 9½ weeks by the state. He preferred to take the paid leave first, so he suspended his FMLA leave and began using the NCL (Nevada catastrophic leave) program.

However, shortly before his wife was scheduled for a surgery, the state notified Hibbs he had to apply for more leave from the leave bank or return to work in 10 days. The state had subtracted the 9½ weeks from the balance of the 12 weeks of leave to which he was entitled under the FMLA. Additional leave was granted, and then revoked, and he was given six days to return to work. He continued to care for his wife instead, and was fired.

Hibbs filed his initial suit on April 20, 1998, in federal district court. The Supreme Court case comes from the United States Court of Appeals for the Ninth Circuit, which refused to throw out his FMLA damages claim.

Proponents hopeful

Ness is optimistic about the prospects for a favorable ruling. "I think we have very strong arguments and a compelling case," she asserts.

She goes on to explain that the FMLA’s goal was to eliminate sex discrimination based on a perception that women should always be the primary caregivers and men the breadwinners. "The whole premise of the FMLA is that by allowing those stereotypes to be codified in workplace policies, you really discriminate against both men and women," she says. "There was a time when women were not promoted because it was assumed they would take time off to care for their families, which men did not dream of doing — which cheated them of their family life. That’s why I’m so optimistic; we’re talking about a law that gets at the heart of sex discrimination, and in recent history, the courts have been very supportive."

From an occupational health perspective, she adds, the FMLA has had a positive impact. "Most employers have had very little difficulty implementing it, and have said that in truth it’s good for the bottom line," she asserts. "The reason is there’s a lot about the FMLA that encourages retention and reduces the cost of turnover. In any work force, you will have employees who have accidents, and family members who have accidents or emergencies; you can’t legislate that away. Giving people the time they need to take care of their families has a huge effect on morale and productivity, as well as on retention."

Ness was present during the oral arguments and is pleased with how things went. "I thought our side did very well, both the lawyer representing Mr. Hibbs as well as the government lawyer," she says. "I think the justices did some serious challenging of the Nevada state position. There was a lot of questioning getting at the basic issue of FMLA being intended by Congress as a remedy for sex discrimination. There were questions from a number of Justices both reinforcing the fact that there was a great deal of discrimination based on stereotypes of caregiving, and clearly some questions which indicated some of justices were convinced that kind discrimination still is rampant, and this was indeed an important remedy."

There also were some justices who were more skeptical, she concedes, "But I think our side did a good job of making the case that discrimination was alive and well."

She says there’s a good chance that Justice Sandra Day O’Connor will be the swing vote. "Her support for states rights will be juxtaposed against her opposition to sex discrimination; I am optimistic and hopeful for a decisive ruling," she declares.

The Supreme Court will make its ruling this session, which ends in July. If it rules in favor of Hibbs, "It would settle the issue of whether state employees can hold states accountable," says Ness.

If the court rules against Hibbs, "It will be a tragedy for working families," she says. "We’d go back to a place where different states would have different laws and different workplace practices. When you think of it, every one of us is just one tragic accident away from being in the same boat as Mr. Hibbs."

[For more information, contact:

National Partnership for Women & Families, 1875 Connecticut Ave. N.W., Suite 650, Washington, DC 20009. Telephone: (202) 986-2600. Fax: (202) 986-2539. Web site:]