Touvell v. OH Dept Mental Dev

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 05a0386p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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Plaintiff-Appellant, -

MARY TOUVELL,

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No. 04-4011

v.

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OHIO DEPARTMENT OF MENTAL RETARDATION AND -

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Defendant-Appellee. -

DEVELOPMENTAL DISABILITIES,

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Appeal from the United States District Court

for the Southern District of Ohio at Columbus.

No. 04-00250—James L. Graham, District Judge.

Argued: July 21, 2005

Decided and Filed: September 9, 2005

Before: BOGGS, Chief Judge; BATCHELDER, Circuit Judge; and GADOLA, District Judge.*

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COUNSEL

ARGUED: John S. Marshall, MARSHALL & MORROW, Columbus, Ohio, for Appellant. Diane

Richards Brey, OFFICE OF THE ATTORNEY GENERAL, Columbus, Ohio, for Appellee.

ON BRIEF: John S. Marshall, Louis A. Jacobs, MARSHALL & MORROW, Columbus, Ohio, for

Appellant. Diane Richards Brey, Stephen P. Carney, Douglas R. Cole, OFFICE OF THE

ATTORNEY GENERAL, Columbus, Ohio, for Appellee.

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OPINION

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BOGGS, Chief Judge. Mary Touvell appeals the district court’s dismissal for lack of subject

matter jurisdiction of her claim against the Ohio Department of Mental Retardation and

Developmental Disabilities (“the Department”) under the Family and Medical Leave Act (“FMLA”),

29 U.S.C. §§ 2601 et seq. The district court held that the FMLA’s purported abrogation of Ohio’s

Eleventh Amendment immunity was unconstitutional as it related to the “self-care” provision of the

FMLA under which Touvell sought leave, and that Ohio was accordingly immune from suit. For

the reasons that follow, we affirm the judgment of the district court.

*

The Honorable Paul V. Gadola, United States District Judge for the Eastern District of Michigan, sitting by

designation.

1

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I

Mary Touvell was an unclassified Therapeutic Program Worker employed at the Cambridge

Developmental Center, an institution for the mentally retarded operated by the Department. There

is no dispute that the Department is a state agency for the purpose of Eleventh Amendment

immunity analysis.

Touvell began work at the Developmental Center on September 9, 2002. One of her duties

was to lift patients. According to her complaint, she began to experience back problems in

November 2002. On or about September 5, 2003, Touvell’s physician excused her from work

because of her back pain. Touvell returned to work on September 16, 2003, but the lifting demands

of her job continued to cause her distress, so her physician excused her from work from September

19 through October 17, 2003. Touvell was terminated on September 29, 2003, for excessive

absenteeism.

Touvell brought this case under the FMLA, alleging that the Department interfered with her

entitlement to leave under 29 U.S.C. § 2612(a)(l)(D), which requires employers to allow employees

to take unpaid leave to care for their own serious health conditions, and that the Department

retaliated against her for having taken leave, in violation of 29 U.S.C. § 2615(a)(1). For the

purposes of this appeal we must assume that Touvell’s leave was in fact protected by the FMLA.

See R.S.W.W., Inc. v. City of Keego Harbor, 397 F.3d 427, 433 (6th Cir. 2005) (“In reviewing a

motion to dismiss, we must construe the complaint in the light most favorable to the plaintiff . . . .”).

On July 30, 2004, the district court dismissed the case for lack of subject matter jurisdiction,

on the sole ground that the FMLA’s purported abrogation of Ohio’s Eleventh Amendment immunity

was unconstitutional. The district court acknowledged that the Supreme Court had held in Nevada

Department of Human Resources v. Hibbs, 538 U.S. 721 (2003), that the “family-care” provision

of the Act, § 2612(A)(1)(C), which entitles employees to take leave to care for seriously ill family

members, abrogated state immunity, but held that the reasoning of Hibbs did not apply to the “self-

care” provision under which Touvell claimed to be entitled to leave. Touvell timely appealed.

II

We review de novo the district court’s order granting the Department’s motion to dismiss

on Eleventh Amendment grounds. See Timmer v. Mich. Dep’t of Commerce, 104 F.3d 833, 836 (6th

Cir. 1997).

The Eleventh Amendment to the United States Constitution provides: “The Judicial power

of the United States shall not be construed to extend to any suit in law or equity, commenced or

prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects

of any Foreign State.” U.S. Const. amend. XI. The Eleventh Amendment provides a type of

sovereign immunity, and deprives the federal courts of jurisdiction to entertain a suit brought by an

individual against a nonconsenting State. See Hibbs, 538 U.S. at 726; Hans v. Louisiana, 134 U.S.

1, 15 (1890).

Congress may, however, abrogate such immunity if it (1) makes its intention to abrogate

unmistakably clear in the language of the statute, and (2) acts pursuant to a valid exercise of its

power under § 5 of the Fourteenth Amendment. See Hibbs, 538 U.S. at 726. Section 5 of the

Fourteenth Amendment grants Congress the power “to enforce” the substantive guarantees of § 1

of the Amendment, among them equal protection of the laws, by enacting “appropriate legislation.”

“Congress may, in the exercise of its § 5 power, do more than simply proscribe conduct that [the

Supreme Court has] held unconstitutional.” Hibbs, 538 U.S. at 728; see also Bd. of Trustees of Univ.

of Ala. v. Garrett, 531 U.S. 356, 363 (2001) (“‘Congress’ power “to enforce” the Amendment

includes the authority both to remedy and to deter violation of rights guaranteed thereunder by

No. 04-4011 Touvell v. Ohio Dep’t of Mental Development Page 3

prohibiting a somewhat broader swath of conduct, including that which is not itself forbidden by the

Amendment’s text.’”) (quoting Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 81 (2000)). “In other

words, Congress may enact so-called prophylactic legislation that proscribes facially constitutional

conduct, in order to prevent and deter unconstitutional conduct.” Hibbs, 538 U.S. at 727-28.

It remains the province of the courts, however, to determine the Fourteenth Amendment’s

substantive meaning and define the substance of constitutional guarantees. Id. at 728. Furthermore,

§ 5 legislation that reaches beyond the scope of § 1’s specific guarantees must be an appropriate

remedy for identified constitutional violations, not “an attempt to substantively redefine the States’

legal obligations.” Ibid. (citing Kimel, 528 U.S. at 88). Hibbs reaffirmed that we must distinguish

appropriate prophylactic legislation from an impermissible redefinition of substantive rights by

applying the test set forth in City of Boerne v. Flores, 521 U.S. 507 (1997): valid § 5 legislation must

exhibit “congruence and proportionality between the injury to be prevented or remedied and the

means adopted to that end.” Hibbs, 538 U.S. at 728 (quoting City of Boerne, 521 U.S. at 520).

The clarity of Congress’s intent to abrogate state sovereign immunity with regard to the

provisions of the FMLA is “not fairly debatable.” Ibid. The Act enables employees to seek

damages “against any employer (including a public agency) in any Federal or State court of

competent jurisdiction,” 29 U.S.C. § 2617(a)(2), and Congress defined “public agency” to include

both “the government of a State or political subdivision thereof” and “any agency of . . . a State, or

a political subdivision of a State,” §§ 203(x), 2611(4)(A)(iii). This case therefore turns on whether

Congress acted within its constitutional authority when it sought to abrogate the states’ immunity

for purposes of § 2612(a)(1)(D), the self-care provision of the Act under which Touvell claimed to

be entitled to leave.

III

In Sims v. University of Cincinnati, 219 F.3d 559 (6th Cir. 2000), we held that the FMLA

as a whole was not a valid exercise of Congress’s power under §5 of the Fourteenth Amendment

because, while Congress had clearly expressed its intent to abrogate state sovereign immunity, the

legislative history of the FMLA “discloses no pattern of discrimination by the States, let alone a

pattern of constitutional violations.” Id. at 564. Rejecting arguments by the United States, an

intervenor in the case, that the purpose of the FMLA was to remedy and prevent employment

discrimination against women and against individuals with serious health conditions, we stated that

“the most relevant legislative history, the committee reports from the 1993 bill that was finally

enacted into law, reveals that Congress had little concern with gender-related discrimination, and

none at all with discrimination against persons with serious medical conditions.” Rather, we

concluded, the legislative history of the Act “suggest[s] that Congress was crafting a piece of social

legislation rather than a remedy for ongoing state violations of the Equal Protection Clause.” Ibid.

We acknowledged that “Congress’ power ‘to enforce’ the Amendment includes the authority

both to remedy and to deter violation of rights guaranteed thereunder by prohibiting a somewhat

broader swath of conduct, including that which is not itself forbidden by the Amendment’s text.”

Kimel, 120 S. Ct. at 644. But we also noted that Kimel “makes clear that Congress may not enact

broad prophylactic legislation where it has failed to uncover any significant pattern of

unconstitutional discrimination by the States.” Sims, 219 F.3d at 565. And, because Congress had

failed, in our opinion, to uncover such a pattern with regard to the FMLA, we held that the Act was

unconstitutionally overbroad. Ibid.

We identified two aspects of the FMLA that led to this conclusion. First, we noted that state

employers could, consistently with the Fourteenth Amendment, discriminate with regard to

employee leave on the basis of gender provided that such discrimination “serves important

governmental objectives and the discriminatory means employed are substantially related to the

No. 04-4011 Touvell v. Ohio Dep’t of Mental Development Page 4

achievement of those objectives.” Ibid. (citing Miss. Univ. for Women v. Hogan, 458 U.S. 718, 724

(1982)). The FMLA, however, mandates leave for all covered employees, and would therefore

prevent forms of discrimination by the states that would not be considered unconstitutional. Ibid.

Second, we found that the affirmative requirements of the FMLA made it hard to characterize as a

remedial measure: “‘The FMLA’s remedy thus is simply not corrective in its character, adapted to

counteract and redress the operation of such prohibited state laws or proceedings of state officers.’”

Ibid. (quoting United States v. Morrison, 529 U.S. 598, 625 (2000)). We concluded that “[i]n light

of the broad scope of its substantive requirements, and the lack of evidence of widespread and

unconstitutional gender discrimination by the States, we hold that the FMLA is not a valid exercise

of Congress’s power under § 5 of the Fourteenth Amendment.” Id. at 566.

Other circuits courts reached similar conclusions. The Third and Eighth Circuits agreed with

us that the entire Act was unconstitutional. See Townsel v. Missouri, 233 F.3d 1094, 1095 (8th Cir.

2000); Chittister v. Dep’t of Cmty. and Econ. Dev., 226 F.3d 223, 229 (3d Cir. 2000). The Fifth

Circuit held that neither subsection (C) nor subsection (D) of § 2612(a)(1) constitutionally abrogated

state sovereign immunity. See Kazmier v. Widmann, 225 F.3d 519, 526-27, 529 (5th Cir. 2000).

And, most significant for the resolution of this appeal, the First, Second, Fourth, and Eleventh

Circuits found only the Act’s self-care provision, found in §2612(a)(1)(D), unconstitutional. See

Laro v New Hampshire, 259 F 3d 1, 17 (1st Cir. 2001); Lizzi v. Alexander, 255 F.3d 128, 136 (4th

Cir. 2001), cert. denied, 534 U.S. 1081 (2002), reh’g denied, 535 U.S. 952 (2002); Hale v. Mann,

219 F.3d 61, 69 (2d Cir. 2000); Garrett v. Univ. of Ala. Bd. of Trs., 193 F.3d 1214, 1219 (11th Cir.

1999), rev’d on other grounds, 531 U.S. 356 (2001). The Ninth Circuit, however, held that one

provision of the Act, the family-care leave requirement of § 2612(a)(1)(C), did constitute a valid

exercise of Congress’s power to abrogate state sovereign immunity. Hibbs v. HDM Dep’t of Human

Res., 273 F.3d 844, 873 (9th Cir. 2001), aff’d, 538 U.S. 721 (2003). The Ninth Circuit

acknowledged that “[w]e do not mean here to state any view with regard to the personal disability

provision of the FMLA.” Id. at 868.

Subsequently, the Supreme Court held in Hibbs that an action against a state under

§ 2612(a)(1)(C) was not barred by the Eleventh Amendment. That section of the FMLA provides

for leave to permit the employee to care for a spouse, child, or parent who has a serious health

condition. The Court held that the Act was intended by Congress to protect a right guaranteed by

the Equal Protection Clause, namely the right to be free from gender-based discrimination in the

workplace. Hibbs, 538 U.S. at 728; see also 29 U.S.C. § 2601(a)(5) (“due to the nature of the roles

of men and women in our society, the primary responsibility for family caretaking often falls on

women, and such responsibility affects the working lives of women more than it affects the working

lives of men.”); §§ 2601(b)(4) & (5) (“to accomplish the [Act’s other] purposes . . . in a manner that

. . . minimizes the potential for employment discrimination on the basis of sex by ensuring generally

that leave is available . . . on a gender-neutral basis[,] and to promote the goal of equal employment

opportunity for women and men . . . .”).

The Supreme Court found that Congress had in fact identified a pattern of gender

discrimination on the part of the states: “[T]he States’ record of unconstitutional participation in,

and fostering of, gender-based discrimination in the administration of leave benefits is weighty

enough to justify the enactment of prophylactic § 5 legislation.” Hibbs, 538 U.S. 721. This finding

was premised on the heightened level of scrutiny triggered by the gender discrimination identified

by Congress. Id. at 736. “Because the standard for demonstrating the constitutionality of a

gender-based classification is more difficult to meet than our rational-basis test – it must ‘serve

important governmental objectives’ and be ‘substantially related to the achievement of those

objectives,’ – it was easier for Congress to show a pattern of state constitutional violations.” Ibid.

(internal citations omitted).

No. 04-4011 Touvell v. Ohio Dep’t of Mental Development Page 5

The Court then turned to the constitutionality of Congress’s chosen remedy for this pattern

of discrimination. Whereas we had held in Sims that the absence of evidence of discrimination

limited the permissible scope of the remedial provisions of the Act, the Hibbs Court held that

because Congress was confronting the “difficult and intractable problem” of gender discrimination,

and because previous legislative attempts to tackle this problem – such as Title VII of the Civil

Rights Act and the amendment of Title VII by the Pregnancy Discrimination Act, 42 U.S.C.

§ 2000e(k) – had failed, Congress was justified in employing broader prophylactic measures than

would otherwise be permissible. Hibbs, 538 U.S. at 737. Given this license to fill in the gaps, as

it were, of Title VII, the Court held that “Congress’ chosen remedy, the family-care leave provision

of the FMLA, is ‘congruent and proportional to the targeted violation.’” Ibid. (quoting Garrett, 531

U.S. at 374.

In so holding, the Court rejected both of the rationales we gave in Sims for finding the Act’s

prophylactic provisions overly broad. First, the Court rejected the argument – advanced by the

Hibbs dissent – that the FMLA is an impermissible “substantive entitlement program” rather than

a remedial statute because it establishes a floor of 12 weeks of leave. Ibid. “Congress ‘is not

confined to the enactment of legislation that merely parrots the precise wording of the Fourteenth

Amendment,’” the Court stated, “but may prohibit ‘a somewhat broader swath of conduct, including

that which is not itself forbidden by the Amendment’s text.’” Ibid. (quoting Kimel, 528 U.S. at 81).

The Court likened the FMLA’s leave requirement to the literacy test ban and preclearance

requirements of the Voting Rights Act, and noted that a statute “that simply mandated gender

equality in the administration of leave benefits, would not have achieved Congress’ remedial object.

Such a law would allow States to provide for no family leave at all.” Id. at 737-38.

Second, the Court noted that the Act was not overbroad, but was “narrowly targeted at the

fault line between work and family – precisely where sex-based overgeneralization has been and

remains strongest – and affects only one aspect of the employment relationship,” namely the

administration of leave benefits. Id. at 738. Furthermore, the demands the Act places on employers

are limited in various ways,1 which “tend to ensure Congress’ means are proportionate to ends

legitimate under § 5.” Ibid. (quoting Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav.

Bank, 527 U.S. 627, 647 (1999)).

IV

The question before us is whether the Supreme Court’s holding in Hibbs that the family-care

provision of the FMLA abrogates state sovereign immunity requires the same holding in this case

with regard to the self-care provision of the Act. In Brockman v. Wyoming Department of Family

Services, 342 F.3d 1159 (10th Cir. 2003), cert. denied, 540 U.S. 1219 (2004), the only federal court

of appeals case to examine this question in any detail,2 the Tenth Circuit held that the self-care

1

For example, the FMLA requires only unpaid leave, 29 U.S.C. § 2612(a)(1), and applies only to employees

who have worked for an employer for at least one year and provided 1,250 hours of service within the last 12 months,

§ 2611(2)(A). Employees in high-ranking or sensitive positions are ineligible for FMLA leave; and, “of particular

importance to the States,” Hibbs, 538 U.S. at 739, the FMLA expressly excludes from coverage state elected officials,

their staffs, and appointed policymakers. 29 U.S.C. §§ 2611(2)(B)(i) & (3), 203(e)(2)(C). Employees must give advance

notice of foreseeable leave, § 2612(e), and employers may require certification by a health care provider of the need for

leave, § 2613. “In choosing 12 weeks as the appropriate leave floor, Congress chose a middle ground, a period long

enough to serve the needs of families but not so long that it would upset the legitimate interests of employers.” Hibbs,

538 U.S. at 739 (internal quotations omitted).

2

In Montgomery v. Maryland, 72 F. App’x 17 (4th Cir. 2003) (unpublished), the Fourth Circuit affirmed the

dismissal of an FMLA case for failure to state a claim, and stated in dicta that “[i]n [Hibbs], the Supreme Court held that

Congress effectively abrogated the states’ Eleventh Amendment immunity against causes of action based on the FMLA

. . . sovereign immunity does not protect the states in FMLA actions.” Id. at 19 (emphasis in original). A previous

No. 04-4011 Touvell v. Ohio Dep’t of Mental Development Page 6

provision of the FMLA does not constitute a valid abrogation of state sovereign immunity. Id. at

1165. The Tenth Circuit noted that the Hibbs Court had focused exclusively on the gender

discrimination that motivated Congress’s enactment of the FMLA, and had premised its holding that

the family care provision of the Act abrogated state sovereign immunity “squarely on the heightened

level of scrutiny afforded gender discrimination.” Id. at 1164. Unlike the family-care provision,

the Brockman court found, the self-care provision was not motivated by a concern to eliminate

gender discrimination, but rather by a desire to alleviate the economic burdens to employees and

their families of illness-related job-loss, and to prevent discrimination against those with serious

health problems. Ibid. As a result, the Brockman court concluded that “[b]ecause the Supreme

Court’s analysis in Hibbs turned on the gender-based aspects of the FMLA’s § 2612(a)(1)(C), the

self-care provision in subsection (D) is not implicated by that decision.” Ibid. The Tenth Circuit

also agreed with the First Circuit, however, that even if the self-care provision were to be given the

benefit of the heightened standard of review for gender-based discrimination,”we do not find that

the legislative history sufficiently ties the FMLA’s personal medical leave provision to the

prevention of gender-based discrimination.” Ibid. (quoting Laro, 259 F.3d at 11). In fact, the

Brockman court held, “there is no showing . . . that establishes any nexus between gender-neutral

medical leave for one’s own health conditions and the prevention of discrimination on the basis of

gender on the part of states as employers.” Id. at 1165 (quoting Laro, 259 F.3d at 11).

As explained below, we agree with the Tenth Circuit that the Supreme Court’s holding in

Hibbs does not apply to the self-care provision of the FMLA, and that private suits for damages may

not be brought against states for alleged violations of the Act arising from claimed entitlement to

leave under § 2612(a)(1)(D).

opinion issued in the same case indicates that Montgomery had taken leave under the self-care provision of the Act. See

Montgomery v. Maryland, 266 F.3d 334, 336 (4th Cir. 2001) (“Montgomery took extended leave under the Family

Medical Leave Act (FMLA) to have a scheduled surgical procedure.”). The Fourth Circuit gave no explanation for this

statement, however, and we do not consider it persuasive.

In Toeller v. Wisconsin Department of Corrections, 296 F. Supp. 2d 946 (E.D. Wis. 2003), the United States

District Court for the Eastern District of Wisconsin held that, in light of Hibbs, the self-care provision of the FMLA was

a valid abrogation of state immunity. See id. at 950. The court reasoned that the self-care provision was intended to

combat discrimination against women because Congress was concerned that single parents, “who in most cases are

women,”might lose their jobs if unable to work due to serious illness. See id. at 949. The court did not point to any

evidence, however, for its apparent assumption that single mothers, or women in general, are more likely to suffer from

serious illness than men, or to lose their jobs if so indisposed. Cf. Brockman, 342 F.3d at 1164 (stating that the

legislative history of the FMLA does not identify any link between gender discrimination and discrimination against

those with serious illness). As discussed infra, it would be “inappropriate and incorrect” in light of Hibbs’s insistence

that Congress was required to – and did – adduce evidence of pervasive gender-discrimination by the states with regard

to family-leave, to justify the self-care provision of the Act solely on the basis of the possibility that such discrimination

might also impact self-care leave, without any concrete evidence of such a link. See Bryant v. Miss. State Univ., 329

F. Supp. 2d 818, 827 (N.D. Miss. 2004). In Bryant, the United States District Court for the Northern District of

Mississippi agreed with the analysis of § 2612(a)(l)(D) in Brockman, and held that “the self-care provision is not a

congruent or proportional remedy for gender discrimination.” See id. at 827.

Finally, in Lizzi v. Washington Metropolitan Area Transit Authority, 862 A.2d 1017 (Md. 2004), cert. denied,

125 S. Ct. 2919 (2005), the Supreme Court of Maryland “agree[d] with . . . Brockman insofar as it relates to the effect

that the Supreme Court’s decision in Hibbs has on the personal-leave provision of the FMLA, i.e., that it does not have

any effect on that particular provision.”), and declined, on the basis of the res judicata effect of Lizzi v. Alexander, 255

F.3d 128 (4th Cir. 2001), to “select between the conflicting positions of the several federal courts” as to the self-care

provision. See id. at 1024-25.

No. 04-4011 Touvell v. Ohio Dep’t of Mental Development Page 7

V

We do not believe that Hibbs undermines the holdings of the First, Second, Fourth, Tenth,

and Eleventh Circuits that the self-care provision of the FMLA is unconstitutional insofar as it

purports to abrogate state sovereign immunity.3

The holding in Hibbs was premised on two distinct conclusions about the family-care

provision of the FMLA, neither of which is warranted about the self-care provision of the Act. First,

the Court concluded that “the States’ record of unconstitutional participation in, and fostering of,

gender-based discrimination in the administration of leave benefits is weighty enough to justify the

enactment of prophylactic § 5 legislation.” Hibbs, 538 U.S. at 735. All of the evidence of

discrimination cited in Hibbs concerned discrimination based on the belief that women are more

likely than men to take leave to care for other family-members. See id. at 729 n.2 (“Congress found

that, ‘due to the nature of the roles of men and women in our society, the primary responsibility for

family caretaking often falls on women, and such responsibility affects the working lives of women

more than it affects the working lives of men.’”) (internal citation omitted); id. at 730-31 (citing

evidence of overt discrimination in the maternity and paternity leave benefits offered by both private

and public employers); id. at 732 (citing evidence that even facially neutral policies were applied

in a discriminatory way, namely “serious problems with the discretionary nature of family leave”);

id. at 736 (identifying the “impact of the discrimination targeted by the FMLA” as the “denial or

curtailment of women’s employment opportunities [due to] to the pervasive presumption that women

are mothers first, and workers second.”) (internal citation omitted). There is no evidence that the

states engaged in similar gender discrimination with regard to personal medical leave.

Second, the Court concluded that, given the heightened scrutiny to which gender

discrimination is subject, the family-care leave provision of the FMLA is congruent and proportional

to the targeted violation, i.e. gender discrimination by the states regarding family-care leave. Id. at

737. Accordingly, the Court made clear in Hibbs that the remedy it found congruent and

proportional to that type of discrimination was “the family-care leave provision of the FMLA.”

Ibid.; see also ibid. (“By creating an across-the-board, routine employment benefit for all eligible

employees, Congress sought to ensure that family-care leave would no longer be stigmatized as an

inordinate drain on the workplace caused by female employees, and that employers could not evade

leave obligations simply by hiring men.”). There is no evidence that the self-care provision of the

Act would have any remedial or prophylactic effect on the discrimination identified by Congress.

As an initial matter, it does not appear that Congress even intended to remedy gender-based

discrimination with the self-care provision of the FMLA. As both the Brockman and Laro courts

found, the legislative history of the FMLA suggests two motivations for the inclusion of the self-care

provision. One purpose of that provision was alleviating the economic burdens on employees and

3

Touvell argues that the FMLA should be treated as a whole, because by considering the self-care provision

separately, we would be engaged in “linedrawing of a quintessentially legislative character,” which would require that

we “either assume Congress acted from distinct motivations in each FMLA provision or disregard Congress’ overall

motivation in the absence of particularized findings for each provision,” an assumption that she describes as

“unrealistic,” and “an affront to the separation-of-powers doctrine.” As such, Touvell claims, the Supreme Court’s

holding in Hibbs that the family-care provision of the Act abrogates state immunity entails the same conclusion about

the self-care provision, and obviates the need for any further inquiry on our part into the constitutionality of the self-care

provision.

The Supreme Court has made clear, however, that this type of line-drawing is a valid and necessary function

of the courts. See Tennessee v Lane, 541 U.S. 509, 520 (2004) (“the distinction [between valid and invalid legislation

under § 5] exists and must be observed . . . .”). In Lane, the Court held that the Eleventh Amendment bar to suit against

the states was successfully removed by Title II of the Americans with Disabilities Act (“ADA”). See id. at 533-34. In

Garrett, conversely, the Court had held that Title I of the ADA did not constitute a valid abrogation of the states’

Eleventh Amendment rights. See 531 U.S. at 374.

No. 04-4011 Touvell v. Ohio Dep’t of Mental Development Page 8

their families of illness-related job loss. See S. Rep. No. 103-3, at 11 (1993) (“The fundamental

rationale for [a personal medical leave] policy is that it is unfair for an employee to be terminated

when he or she is struck with a serious illness and is not capable of working. Job loss because of

illness has a particularly devastating effect on workers who support themselves and on families

where two incomes are necessary to make ends meet or where a single parent heads the

household.”); see also H.R. Rep. No. 101-28(I), at 23 (1989) (“The temporary medical leave

requirement is intended to provide basic, humane protection to the family unit when it is most in

need of help. It will also help reduce the societal cost born [sic] by government and private

charity.”). As noted in Laro, “[t]his concern clearly goes to Congress’s power under the Commerce

Clause and not Section 5.” 259 F.3d at 12.

The other purpose of the self-care provision was to prevent employment discrimination

against those with serious health problems. See S. Rep. No. 103-3, at 12 (citing testimony that a

quarter of all cancer survivors face “some form of employment discrimination” and that “such

discrimination against qualified employees costs society millions of dollars in lost wages, lost

productivity and needless disabilities payments”); H.R. Rep. 101-28(I), at 23 (“[A] worker who has

lost a job due to a serious health condition often faces future discrimination in finding a job which

has even more devastating consequences for the worker and his or her family.”). While

discrimination against the disabled and seriously ill may indeed be devastating to those affected, the

Supreme Court made clear in Garrett that such discrimination does not provide sufficient basis for

a congressional abrogation of the states’ Eleventh Amendment immunity. See Garrett, 531 U.S. at

368-74. Congress identified no link between the desire to provide a safety net for the seriously ill,

or the desire to prevent discrimination against the seriously ill, and any pattern of discriminatory

stereotyping on the part of the states as employers.

Whatever the actual intent of the self-care provision of the Act, Congress adduced no

evidence of a pattern of discrimination on the part of the states regarding leave for personal medical

reasons sufficient to permit the abrogation of state sovereign immunity. Such evidence of

discrimination must be “linked through some nexus not just to such gender-based problems in

society at large, but specifically to unconstitutional gender discrimination by states in their capacity

as employers.” Laro, 259 F.3d at 12; see also Garrett, 531 U.S. at 369, 371 (noting that although

Congress had identified substantial evidence of societal discrimination against the disabled, “the

great majority of these incidents do not deal with the activities of States,” and rejecting the argument

of the dissent that the Court could “infer from Congress’ general conclusions regarding societal

discrimination against the disabled that the States had likewise participated in such action”).

Although Congress did cite sufficient evidence that the states had engaged in gender

discrimination on the basis of unwarranted stereotypes about the role of women as caregivers, that

evidence is not sufficient to justify the self-care provision of the Act, because there is virtually no

evidence that those stereotypes also concern the behavior of men and women regarding personal

medical leave. Indeed, the evidence suggests just the contrary. See H.R. Rep. No. 101-28(I), at 15

(“Recent studies . . . indicate that men and women are out on medical leave approximately equally.

Men workers experience an average of 4.9 days of work loss due to illness or injury per year, while

women workers experience 5.1 days per year. The evidence also suggests that the incidence of

serious medical conditions that would be covered by medical leave under the bill is virtually the

same for men and women. Employers will find that women and men will take medical leave with

equal frequency.”); see also Laro, 259 F.3d at 11-12 (“The argument that [the self-care] provision

validly abrogates New Hampshire’s Eleventh Amendment immunity founders on this lack of

congruence between the personal medical leave provision at issue here and the prevention of

gender-based discrimination by states as employers, because Congress has not found the states to

have engaged in the specific gender-based discriminatory practices this provision was designed to

prevent.”); Bryant v. Miss. State Univ., 329 F. Supp. 2d 818, 827 (N.D. Miss. 2004) (“There is no

indication that women require more actual personal medical leave than men. Nor is there any

No. 04-4011 Touvell v. Ohio Dep’t of Mental Development Page 9

evidence that women have suffered disparate treatment due to a false perception that they require

more personal medical leave than men. . . . [T]here is simply no evidence to this Court’s knowledge

that women and men have been subjected to different standards for personal medical leave. “). But

see 1987 Senate Labor Hearings, pt. 2, at 170 (testimony of Peggy Montes, Mayor’s Commission

on Women’s Affairs, City of Chicago) (“the lack of uniform parental and medical leave policies in

the work place has created an environment where discrimination is rampant.”) (emphasis added).

Touvell even concedes this very point. See Appellant’s Br. at 29 (“Statistics on the incidence of loss

of work due to medical reasons, including pregnancy-related medical reasons, show that men and

women are out on medical leave approximately equally[.]”) (citing National Center for Health

Statistics, Disability Days, United States, 1980 (Series 10, No. 143, DHH8 Pub. No. (PHS) 83-1571)

(1983)).

Touvell contends that personal medical leave is impacted by gender-based discrimination

because of the gender-specific incidence of pregnancy-related illness and disability. She points to

references to pregnancy-related conditions in the FMLA’s legislative history, see S. Rep. No. 103-3,

at 29 (including as examples of serious medical conditions such as ongoing pregnancy, miscarriages,

complications or illness related to pregnancy, including severe morning sickness, the need for

prenatal care, and recovery from childbirth), as well as in the text of the Act, see 29 U.S.C.

§ 260l(b)(4) (among the purposes of the FMLA is “minimiz[ing] the potential for employment

discrimination on the basis of sex by ensuring generally that leave is available for eligible medical

reasons (including maternity-related disability) and for compelling family reasons, on a

gender-neutral basis.”).

The fact that the health conditions for which leave would be available under the Act include

pregnancy-related illness does not mean, however, that pregnancy-related conditions were a more

significant focus of the Act than any other conditions that would cause men and women to take

leave. The legislative history of the Act suggests that Congress had many such conditions in mind.

For example, the same Senate Report that lists various pregnancy-related conditions as examples

of medical conditions that would be covered under the self-care provision also lists thirteen other

types of condition, including heart conditions, strokes, “most cancers,” and accidents on or off the

job. See S. Rep. No. 103-3, at 29; see also, e.g., id. at 12-13 (citing testimony that a quarter of all

cancer survivors face “some form of employment discrimination”). Nor does it mean that Congress

had evidence that the states in particular were discriminating against women in allocating personal

leave. Absent such evidence, Congress may not abrogate state immunity from suit. See Hibbs, 538

U.S. at 729; see also Laro, 259 F.3d at 13 (considering argument that the self-care provision

combats discrimination on the basis of pregnancy, and stating that “there is no indication that

Congress found such a problem on the part of states as employers”); id. at 15-16 (the Eleventh

Amendment requires greater information from Congress as to whether [the risk of states

discriminating as employers on the basis of pregnancy-related-conditions] is real.”).

In the absence of any evidence of discrimination relating to personal medical leave, the self-

care provision of the FMLA cannot be justified as a remedy for that type of discrimination. The

only way it could be justified, then, is if the self-care provision were a prophylactic measure

necessary to effectuate the broader anti-discriminatory purposes of the FMLA as a whole. The best

argument along those lines is that § 2612(a)(1)(D) meets a perceived need not addressed by Title

VII and the Pregnancy Discrimination Act (“PDA”).

Under the PDA, women may no longer be treated differently in employment because of

pregnancy, childbirth, or related medical conditions (or stereotypes about the same). Laro, 259 F.3d

at 14. Furthermore, if an employer chooses to offer benefit programs, then those programs must

cover pregnancy, childbirth, and related medical conditions. Medical insurance and leave policies,

if offered to employees, have to cover pregnancy. Ibid. In other words, the PDA mandates

equivalent treatment of all temporarily disabled workers, including those disabled because of

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pregnancy-related conditions. However, as the First Circuit noted in Laro, the PDA did not meet

one arguable social need, because it did not require the provision of pregnancy-related leave by

employers who offer no benefit provisions for leave at all. See 259 F.3d at 14-15. As such, the

argument goes, the self-care provision of the FMLA was needed to ensure that all employers provide

leave for medical conditions related to pregnancy. Congress could have simply required leave for

pregnancy-related conditions only, but, the argument continues, that would create a disincentive to

hire women, or to place them in positions of responsibility, because only women would take

advantage of such leave, thereby feeding into the stereotype that “[u]ntil a woman passes the child-

bearing age, she is viewed by employers as potentially pregnant.” H.R. Rep. No. 95-948, at 6-7

(1978). Therefore, the only way to ensure that women are able to take leave for pregnancy-related

conditions without fear of discrimination is to require employers to allow all employees to take leave

for health reasons. See S. Rep. No. 102-68, at 35 (1991) (“Because the bill treats all employees who

are temporarily unable to work due to serious health conditions in the same fashion, it does not

create the risk of discrimination against pregnant women posed by legislation which provides job

protection only for pregnancy related disability.”).

There are several problems with this argument. The first problem is that, as noted above,

there is no evidence that Congress was any more concerned when enacting the FMLA with

providing leave benefits to pregnant women than with providing benefits for other seriously ill men

and women. The second problem is that even if it was true that the self-care provision of the Act

was necessary in order to ensure that women can take time off for pregnancy-related conditions

without creating an incentive to hire and promote men, there is no evidence that such a goal,

however worthy it may be, is designed to combat a pattern of discrimination by state employers.

See Laro, 259 F.3d at 14-15, 16 (notwithstanding general statement in testimony asserting that

public sector leave policies do not vary much from private sector policies, “the only direct evidence

regarding the actual leave policies of public sector employees in the legislative record suggests that

state employers did not fall into the ‘gap’ left by the PDA.”); id. at 13-14 (“There is no showing,

however, that establishes any nexus between gender-neutral medical leave for one’s own health

conditions and the prevention of discrimination on the basis of gender on the part of states as

employers.”). Although Hibbs discusses at length state policies regarding leave taken after the birth

of a child, the point of that discussion was not that providing maternity leave for new mothers was

a valid goal on the part of Congress in enacting the FMLA, but that equalizing such provisions for

men and women was a legitimate goal.

The third problem is that even if the provision of leave for pregnancy-related conditions was

designed to remedy or prevent discrimination by public employers, there is no reason to believe that

the self-care provision of the FMLA would in fact remove any disincentive to hire women that might

otherwise result from a pregnancy-specific provision. In Hibbs, the Supreme Court explained that

there was concrete evidence that Title VII was not having the desired effect with regard to ending

discrimination in the allocation of family-care leave, and that the reason for this failure was the

pervasiveness of stereotypes about the role of women as caregivers. See Hibbs, 538 U.S. at 737.

The Court also explained exactly how the family-care provision of the Act would solve this problem.

By enabling fathers to take leave to care for a newborn or other family-member, the Act would

decrease the gap between the incidence of such leave taken by men and women, and thereby reduce

the incentive to hire men over women for fear that women would take more time off to care for

family-members. See ibid. (“By setting a minimum standard of family leave for all eligible

employees, irrespective of gender, the FMLA attacks the formerly state-sanctioned stereotype that

only women are responsible for family caregiving, thereby reducing employers’ incentives to engage

in discrimination by basing hiring and promotion decisions on stereotypes.”).

With regard to self-care leave, however, there is no evidence that women – either in fact or

in stereotype – took more such leave prior to the enactment of the FMLA. Thus, there is no

evidence that personal medical leave had ever created a disincentive to hire women. What is more,

No. 04-4011 Touvell v. Ohio Dep’t of Mental Development Page 11

if such beliefs and the consequent disincentives had existed pre-FMLA, the self-care provision of

the Act would only make things worse. If employers believe that women were more likely to take

personal leave than men, a law mandating the provision of such leave to all employees would create

precisely the type of incentives to hire and promote men that the family-care provision of the Act

was designed to prevent.

In conclusion, while Hibbs found that Congress had adduced sufficient concrete evidence

of discrimination by the states regarding the availability and consequences of family-care leave,

there is no equivalent evidence that the self-care provision of the FMLA was intended to, or did,

target similar discrimination. On the contrary, the self-care provision appears to have been social

legislation designed to protect the seriously ill and their families regardless of gender. While this

may be an admirable goal, it is not one that permits Congress to abrogate the Eleventh Amendment

immunity of the states from private suit for damages.

VI

For the reasons discussed above, we AFFIRM the judgment of the district court.