High Court Bars Gender Bias in Family Leaves

(WOMENSENEWS)–Women’s-rights advocates are celebrating the recent Supreme Court ruling in which Chief Justice William Rehnquist deplored gender stereotypes and resulting employment policies.

The ruling upheld–in defiance of recent court trends–a lower court ruling that said state governments were required to abide by the federal Family and Medical Leave Act.

The decision upholding the right of a male state employee to take a leave of absence to care for an ailing relative barred states from relying on the gender stereotype that only women would require time off to meet family caretaking responsibilities.

William Hibbs, an employee of the Nevada state government, sued after being denied a leave of absence to care for his wife. In Nevada Department of Human Resources v. Hibbs, the justices ruled 6-3 in favor of Hibbs. The state of Nevada had argued that this federal rule did not apply to states as employers, apparently relying on earlier Supreme Court decisions that age and disability discrimination laws did not apply to state governments.

The decision demonstrates that the Supreme Court currently “has a better understanding of stereotypes, how they operate and how they limit women,” said Wendy Weiser, a staff attorney for the New York-based NOW Legal Defense and Education Fund, which filed a friend-of-the-court brief in support of the plaintiff.

Rehnquist authored the decision for the majority, writing that Nevada’s “record of unconstitutional participation in, and fostering of, gender-based discrimination in the administration of leave benefits is weighty enough” that Congress had the authority to enact the law and have the law apply to states. Rehnquist is the author of an earlier decision regarding the Violence against Women Act in which he wrote that Congress had overstepped its bounds by providing some federal protection to victims of gender-based violence. In the Hibbs decision, Rehnquist described the Family and Medical Leave Act an “across-the-board, routine employment benefit for all eligible employees.”

Rehnquist further wrote, “Because employers continued to regard the family as the woman’s domain, they often denied men similar accommodations or discouraged them from taking leave. These mutual reinforcing stereotypes created a self-fulfilling cycle of discrimination that forced women to continue to assume the role of primary caregiver and fostered employers’ stereotypical views about women’s commitment to work and their value as employees.”

Judy Appelbaum, vice president and director of employment opportunities at the National Women’s Law Center, a Washington-based women’s rights organization, called the decision a double victory. One is for the estimated 5 million state, county and municipal government employees who now have the right to insist their employers abide by the Family and Medical Leave Act. The second is for the power of Congress “to address gender discrimination in a way it feels necessary.”

Supporting Hibbs were such organizations as: 9to5, National Association of Working Women, based in Milwaukee, Wis.; the American Association of University Women, based in Washington, D.C.; and the National Council of Negro Women, also based in Washington, D.C. In all, 31 women’s and civil-rights organizations signed onto a separate friend-of-the-court brief submitted by the National Women’s Law Center.

Under the act, eligible employees are entitled to 12 weeks of unpaid leave for family and medical reasons in a given 12-month period. The court’s decision says the Family and Medical Leave Act, as written by Congress, was intended to be applied to women and men, as well as both private and public employees.

“It’s a very positive decision,” said Kim Gandy, president of the National Organization for Women, based in Washington, D.C. “Even William Rehnquist recognizes sex discrimination when it comes to a man.”

Decision Reflects Court’s Current Understanding of Gender Bias

Appelbaum added the ruling shows the High Court recognized that “sex discrimination when done by the government is presumed to be unlawful and, therefore, Congress has significant leeway to address it, including the Family and Medical Leave Act.”

“The impact goes beyond the Family and Medical Leave Act to remedy sex discrimination by setting a precedent to tear down other forms of subtle discrimination against women based on sexual stereotypes related to work and family responsibilities,” Weiser, the NOW Legal Defense attorney, said in a telephone interview. She added the decision could potentially affect the interpretation of other related statutes–including Title VII of the 1964 Civil Rights Act, regarding employment discrimination, and Title IX guarantees for girls in educational institutions that receive federal funds.

Step Forward After Many Setbacks

The Hibbs decision was particularly welcome to women’s rights advocates, given a string of previous Supreme Court decisions considered to be setbacks. “This is the first bit of good news we’ve had in a long time,” said Roselyn O’Connell, president of the D.C.-based National Women’s Political Caucus.

In addition to the win for state workers and the Supreme Court’s acknowledgement of sexual stereotypes as harmful, the Hibbs decision is also significant because it’s the first to go against the current trend in the Supreme Court’s judicial philosophy of restricting the federal government’s power over states.

“The case is a welcome break in the use of the new federalist theory to deny women the protection of the law and Congress’s power to address harm to women,” said the NOW Legal Defense’s Weiser.

During the last decade, the Rehnquist Supreme Court has consistently ruled against Congress’ authority to implement legislation rectifying discrimination as applied to the states and there was great concern that the Family and Medical Leave Act would be still another judicial casualty.

In a 2001 immigration case, Nguyen v. Immigration and Naturalization Service, the court upheld different citizenship standards for children, depending on the gender of the parent. Other examples include a 2000 age-discrimination case; a disability case the following year and most notably, a decision invalidating key portions of the federal Violence Against Women Act.

In that case, the High Court barred victims of gender-based crimes from suing for damages in federal courts. The justices ruled against the law’s civil-rights provision, saying Congress did not have the authority required when it passed the law because it had insufficient evidence that violence against women affected interstate commerce and that it didn’t have the authority under the constitution’s equal protection clause.

William Pryor, Alabama attorney general and current Bush judicial nominee to the Court of Appeals for the 11th Circuit in Atlanta, authored the brief against the Family and Medical Leave Act filed on behalf of 13 states.

Justices Antonin Scalia, Clarence Thomas and Anthony Kennedy dissented. Scalia and Thomas are the justices President Bush has held up as examples of the type of Supreme Court members he would appoint.

For NOW’s Gandy, the outcome of this case is bittersweet, given rumors that Rehnquist or O’Connor–or both–may retire from the Supreme Court as early as this summer. “This decision is an excellent example of what’s at stake,” she says. “There goes your majority. Boom. Boom. This could be a very fleeting victory.”

Jillian Jonas is a freelance journalist living in New York.