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Sex Based Overgeneralization Nevada Department of Human Resources v. Hibbs No. 01-1368 As Chief
Rehnquist explains early in Hibbs, it has been clear for over a century
that �the Constitution does not provide for federal jurisdiction over suits
against nonconsenting States.� Except sometimes.�
In a late term burst of political correctness, the Chief, writing for a
6-3 Court, upheld the family-care provisions of the Family and Medical Leave Act
or, in other words, the right of citizens to sue states in federal court if they
don�t get 12-weeks off to look after sick Aunt Minnie. According to the Court,
Congress clearly, and legitimately, pierced the veil of state immunity in the
FMLA and there's nothing the 11th Amendment can do about it.
Is this the same Chief who defended state immunity from private suit in Kimel (where plaintiffs sought damages under the Age Discrimination in Employment Act) and Garrett (where plaintiffs sought damages under the Americans with Disabilities Act)? Indeed, but the FMLA concerns gender discrimination, and gender discrimination is, well, special. Treating ladies and gentlemen differently has long been especially suspect under the 14th Amendment and Congress has power under section 5 to do something �prophylactic� about it.� What does this have to do with family leave? States, explains the Chief in his best Patricia Ireland imitation, �rely on invalid gender stereotypes in the employment context�FMLA is narrowly targeted at the fault line between work and family�precisely where sex-based overgeneralization has been and remains strongest."
This would be more convincing if there were a substantial history of leave-based gender discrimination in the states or, more to the point, if Nevada had a train of �overgeneralizing� abuses.� (As Justice Kennedy suggests in dissent, the �evidence� here is outdated and misleading.) It is clear that the FMLA is an entitlement law, not a civil rights remedy--fine with us, but it shouldn't authorize private suits.
Click here for the SG's brief defending private actions under the FMLA--states have "fueled and perpetuated" unseemly stereotypes about women--assuming they are "homemakers" and "caregivers"--so bring on the litigation.
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