MIDLAND — The U.S. Supreme Court yesterday ruled that the federal Family and Medical Leave Act (FMLA) applies to public employees, which includes Michigan’s 575,000 public employees. At issue was whether states can rely on their sovereign immunity to deny public employees the benefits of the Act. The court, in a 6 to 3 decision, answered no, finding that states’ record of unconstitutional participation in, and fostering of, gender-based discrimination in the administration of leave benefits was significant enough to constitutionally justify the application of the FMLA to public employees in the states.

Robert Hunter, director of labor policy at the Mackinac Center for Public Policy, applauds the fact that state employees will be able to take leave to care for family members, but questions the legal reasoning behind the high court’s ruling. “Public employees should have the ability to take leave to care for themselves or their loved ones,” said Hunter. “But it would be preferable if this had been done through state laws, in order to preserve states’ rights. Generally, the Supreme Court has allowed states to determine their own personnel policies. If that changes, we could see the federal government mandate domestic partner benefits, or force states to bargain collectively with their employees. Or the federal government could limit or abolish collective bargaining in states, like Michigan, where it already exists. Because every state has its own political and economic conditions, these are all decisions that should be left to state officials,” he said.

The majority opinion, penned by Chief Justice William Rehnquist, observed that “Stereotypes about women’s domestic roles are reinforced by parallel stereotypes presuming a lack of domestic responsibilities for men … These mutually reinforcing stereotypes created a self-fulfilling cycle of discrimination that forced women to continue to assume the role of primary family caregiver, and fostered employers’ stereotypical views about women’s commitment to work and their value as employees.” The majority opinion concluded that: “…Congress’ chosen remedy, the family-leave provisions of the FMLA, is ‘congruent and proportional to the targeted violation.’”

In his dissent, Justice Antonin Scalia argued that there was little evidence that more than a handful of state governments had engaged in gender discrimination in their handling of employee leave: “[The majority opinion] treats ‘the States’ as some sort of collective entity which is guilty or innocent as a body.” In a separate dissent, Justice Anthony Kennedy argued that the FMLA was an entitlement program, not a corrective measure to alleviate the effects of gender discrimination.

The FMLA gives employees the right to take unpaid leave for a period of up to 12 work weeks in a 12-month period in order to care for a newborn child, take in a child for foster care or adoption, care for a child, spouse, or parent with a serious health condition, or to deal with the employee’s own serious health condition. An employee on FMLA leave is also entitled to have group health benefits maintained while on leave and generally has the right to return to the same position at the end of the leave.

In a related development, the U.S. Department of Labor intends to rescind the Birth and Adoption Unemployment Compensation Provisions. These Clinton administration rules made it possible for states to make unemployment insurance funds available to parents away from work to care for newborns or newly adopted children. Michigan had not opted into this program. Hunter praised the Labor Department’s decision: “What the prior administration had proposed was well beyond the scope of the unemployment insurance law. This decision clears the way for a debate on making compensatory time available in the private sector, which would allow workers and employers to freely negotiate the best arrangement for paid time off to take care of family or medical needs.”

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