Okay, maybe my headline isn’t quite what they said, but the subtext is there. In a case decided on March 20, 2012, the men in black said that, for state employees, they can take FMLA leave to care for family members, but not for themselves. Huh?
The reasoning is that, because states are generally immune from suit unless they waive their immunity, Congress had no right to pass the Family and Medical Leave Act unless it was to address sex discrimination under the 14th Amendment. The men on the court found that, to the extent FMLA allows time off to care for yourself, it addresses “a concern for discrimination on the basis of illness, not sex.”
The women on the court, along with Justice Breyer, had something to say about the decision. “In so declaring, the plurality undervalues the language, purpose, and history of the FMLA, and the self-care provision’s important role in the statutory scheme. As well, the plurality underplays the main theme of our decision in Hibbs: ‘The FMLA aims to protect the right to be free from gender-based discrimination in the workplace.’” They went into a detailed analysis of the stated purpose of FMLA, along with the legislative history. Throughout, they point out, Congress says FMLA addresses the issue of discrimination against women in the workplace. Specifically, it was to address the need for maternity leave without specifically pointing to pregnancy. “[T]he self-care provision, 29 U. S. C. §2612(a)(1)(D), prescribes comprehensive leave for women disabled during pregnancy or while recuperatingfrom childbirth—without singling out pregnancy or childbirth.”
The dissenting Justices give specific examples of women who appeared to testify before Congress to relay stories of how they were fired after taking maternity leave.
The solution the court offers? Maryland can pass its own law similar to FMLA and waive its sovereign immunity. I won’t hold my breath.
What did Maryland have to say for itself? “’[A] state’s refusal to provide pregnancy leave to its employees,’ Maryland responds, is ‘not unconstitutional.’” Whoa. Makes me glad I decided to move. Way to go, Maryland. Let’s fire the new moms!
For shame, Maryland. For shame, Supreme Court.
So much for the “family values” branch of the court. Now, let’s watch them gut health care altogether. Then we can all die unless we’re employed and our employer graces us with medical coverage.
Hm. I wonder who will do the scut work once all the poor people are dead. Maybe those robes can double as a dusting cloth.
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