The Supreme Court on Wednesday heard arguments for Nevada Department of Human Resources v. Hibbs, the case debating whether state governments are exempt from provisions of Family and Medical Leave Act (FMLA) which guarantee employees 12 weeks of unpaid leave for family or medical problems. Assistant Attorney General Viet Dinh, favoring unpaid leave for all employees, argued that “Congress sought to remedy and prevent sex-based discrimination based on assumptions about women’s role in the workplace and men’s role in the home;” according to the Associated Press.
Passed in 1993 as a result of vigorous lobbing and work by the women’s rights community, the FMLA is a key step towards women’s equality in the workplace because it allows women, who are still overwhelmingly responsible for family care, to address their family obligations without losing their jobs. Advocates contend that when the FMLA was passed, lawmakers intended for its provisions to apply to state employees. Sen. Christopher Dodd (D-CT) explained, “The intent of Congress was to provide basic protections for all Americans. Working for a state government shouldn’t make you a second-class citizen,” reported the AP.
However, in the intervening years, a series of remarkably conservative 5-4 decisions by the Supreme Court have dramatically curtailed the federal government’s ability to protect state employees from discrimination on the basis of religion and disability. If the Court rules that the FMLA cannot protect state employees, it will be the first time these reactionary “state’s rights” arguments have been applied to a statute based on protection against gender discrimination. If the state succeeds in claiming immunity, the result could be a wave of attacks on other protections against gender discrimination such as the Equal Pay Act.
There are roughly 5 million state government employees in the US. Thirteen states support Nevada’s call to exempt states from the FMLA provisions: Alabama, Alaska, Delaware, Hawaii, Indiana, Nebraska, Ohio, Oklahoma, South Carolina, Tennessee, Texas, Utah, and Virginia. New York, Connecticut, Illinois, Minnesota, New Mexico, and Washington advocate application of the FMLA to state employees.
The Feminist Majority Foundation joins the National Partnership for Women and Families (NPWF) in its call for paid family leave benefits. Although the FMLA has assisted over 35 million Americans in protecting their jobs, still too many women and men cannot afford to take the time off. A 2000 Department of Labor national survey reported that over 75% of employees who did not take needed leave listed lost pay as the primary reason, according to the NPWF.
California is the first state in the nation to enact a comprehensive paid family leave plan – albeit one that is not paid via unemployment insurance. Five other states offer a form of paid leave called temporary disability insurance and at least 24 states allow public employees to use sick leave to care for sick family members, while three states require private employers to do so for their employees, according to the NPWF.
The United States is one of few developed nations that does not offer some form of paid parental leave. Approximately 127 countries offer compensation to parents, while many others have passed similar laws to compensate workers who need time off because of family emergencies.
“We as a nation love to talk about ourselves as a family-friendly nation, but when it comes to having the policies in place to live up to that we often fall short,” Lichtman told the Los Angeles Times.