Governmental Immunity

Brief -Fifth Circuit Finds Family and Medical Leave Act Unconstitutional as Applied to States - Kazmier v. Widmann, 225 F.3d 519 (5th Cir. 2000)

Plaintiff was an employee of the Louisiana Department of Social Services.  She was fired for excessive absences after taking off time to care for her terminally ill father and to recover from a non-work related broken wrist.  She brought this case under the Family and Medical Leave Act ("FMLA"), arguing that her termination violated several provisions of the FMLA.  The district court denied defendants motion to dismiss on grounds of sovereign immunity based on the Eleventh Amendment prohibition of private lawsuits against the states.  The defendants argued that Congress did not properly abrogate state immunity with its 14th amendment authority and thus the FMLA is an unconstitutional intrusion on state authority.

States' sovereign immunity can be abrogated by Congress pursuant to its enforcement power under Section 5 of the Fourteenth Amendment. The validity of a purported abrogation is assessed judicially by applying a two-part test: First, Congress must unequivocally express its intent to abrogate the immunity; and, second, Congress must act pursuant to a valid exercise of power.  The limits on this power is based on the relationship between the state's constitutional violations and the intrusiveness of the Congressional limits:

"Legislation that abrogates immunity must be proportional with and congruent to an identified pattern of actual constitutional violations by the States. If Congress "fail[s] to [include in the legislative record of a prophylactic statute any evidence of a] significant pattern of unconstitutional discrimination" by the States, then the statute will not be held to abrogate the States' sovereign immunity."

The legislative history of the FMLA documents a pattern of private sector discrimination against male employees who take time off to care for family members, reinforcing the stereotype that woman are the natural family care givers.  This then had the effect of limiting employment opportunities for women because of the belief that they would be unreliable employees.  The court found that Congress did not document any such pattern in state employment and that the FMLA was silent as to systematic constitutional violations by states.  Since the FMLA is very intrusive, limiting the employer's ability to make routine workforce staffing decisions, the court found that it could not be constitutionally applied to the states without evidence of systematic constitutional violations.  This case has an excellent review of Eleventh Amendment jurisprudence and is clearly destined for United States Supreme Court review.