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Supreme Court Watch: Federal Medical Leave Act

Gwen Ifill discusses the debate over the Federal Medical Leave Act with the Supreme Court reporter for The Chicago Tribune.

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  • GWEN IFILL:

    In other business at the court today, justices heard debate on two high-profile policy issues. One involves the government's mandatory detention policy for legal aliens and the other, whether states can be sued under the 1993 Family and Medical Leave Act. Here as always to take us inside the court is Jan Crawford Greenburg, Supreme Court reporter for the "Chicago Tribune."

    Hi, Jan. Busy day today. Let's start with the family medical plan leave act. This involves a case of a state employee who feels like he didn't get everything that was due him, all the time off that he should have gotten in order to take care of a sick spouse. Under what circumstances, according to this case, would someone not be able to sue their employer if their employer is a state government?

  • JAN CRAWFORD GREENBURG:

    Well, as the law currently stands, and this is what the Supreme Court is being asked to decide, whether or not state employees can sue the state government if they believe they have not gotten their entitled leave and get back pay, money damages. A federal appeals court ruled that the man at issue here was entitled to pursue that kind of lawsuit. But the Supreme Court in a series of decisions involving different laws and of course different people over the last several years has dramatically scaled back state employees' ability to sue states if it feels the state has violated a federal law. For example, the court has ruled that state employees, in recent years, could not sue states for violating age discrimination laws and for violating the Americans with Disabilities Act, that those employees could not sue the state government to get back pay or lost wages.

  • GWEN IFILL:

    So this man had gotten the 12 weeks mandated that the law calls for, but he wanted more time and that was the dispute.

  • JAN CRAWFORD GREENBURG:

    Well, that was the dispute. And the facts at this stage are still unresolved, because the issue went all the way up just to determine that very key point, whether or not he had a claim at all, whether or not he could make his case that he was entitled to this twelve-week leave.

  • GWEN IFILL:

    But the state's argument is different, the state's saying that in order to impose this law on us, in order for the federal government to be able to abrogate the rules of a state, you have to prove that there is some history of discrimination.

  • JAN CRAWFORD GREENBURG:

    That's right, and that's what the court has ruled in those cases I just referred to in the age discrimination area and in disabilities discrimination, that the federal government before it can bend states to its will and make a state subject to these kind of lawsuits must put forth some evidence that states have been engaging in — wholesale discrimination against state employees. And a lawyer for the state of Nevada where this case comes from today argued that Nevada, simply had not been engaging in that kind of discrimination, it was wrong to assume that state administrators had engaged in this type of discrimination.

  • GWEN IFILL:

    When we talk about discrimination, for the purposes of the Family and Medical Leave Act, what originally got this law to be enacted had to do about gender discrimination?

  • JAN CRAWFORD GREENBURG:

    Right, we're talking about sex discrimination, and that's why this case is tremendously important. The other issues the court has addressed, age, disability, obviously very important, but sex discrimination the court has always looked on a little differently, it has scrutinized laws more closely, if they are considered to be discriminatory based on gender.

    And so this case has trees importance and has been very closely watched by women's groups and other civil liberties groups. They know it will affect five million state employees and argues that the law is a tremendously important tool for combating sex discrimination. In fact, a lawyer today, a Georgetown law professor who is representing the man in this case, made the point very strongly that this law is designed not only to protect women from bias, to protect women from bias and promotion in hiring by employers who might assume they're going to be seeking time off in the future, but also to protect men from bias, because they may have been denied leave in the past.

  • GWEN IFILL:

    In fact, it's a man whose case is in court today.

  • JAN CRAWFORD GREENBURG:

    That's right.

  • GWEN IFILL:

    So let's take us inside the courtroom, and tell us what kind of clues we were able to read if possible from the arguments today.

  • JAN CRAWFORD GREENBURG:

    Well, it was in many ways a difficult argument because Justice O'Connor was largely silent.3 this cases, the once the court has decided in the past, have been very narrowly divided, 5-4, the more conservative justices voting to hold states immune from these lawsuits, the more liberal justices very vigorously dissenting from those decisions. The case today, the justices did not indicate that they were prepared to walk away from those positions. Of course, Justice O'Connor often can be a swing vote. I know that many of the women's groups hope that she will see this case differently and come over to the other side and make this case come out differently, but I couldn't tell from her questions today which way she was prepared to go. The other justices were I think easy to read and they suggested they saw this case much the same way.

  • GWEN IFILL:

    On the previous cases, has she been a swing vote…

  • JAN CRAWFORD GREENBURG:

    She's generally than on the majority side. And again, this court has been captivated by these issues in recent terms and slightly other areas, this has addressed the scope of Congress' power vis-à-vis the states and how much power the states can have, whether or not Congress has the power to pass certain federal laws or in this case and others whether it can make states subject to certain lawsuits. Let me make a very important point, though, –and Justice Kennedy made this point during arguments today and he's made it in the past in some of his opinions he's written involving other laws — this doesn't mean that states can go out and violate these federal laws willy-nilly. They can refuse to offer these twelve weeks of leave, they can discriminate against someone because of their age. It just takes away the rights of employees to sue the state for back pay. If the employee hasn't gotten what he or she believes to be the required leave, they still could file an action against the state official and seek an injunction, seek to force the state to stop that behavior. Or they could turn to the federal government and ask it to pursue the claim. But the women's groups say that's just not good enough.

  • GWEN IFILL:

    The second case that was argued before the court today involved the mandatory detention of legal aliens. Now when we've been talking about detention on this program, detention of aliens, it always has to do with the terrorism roundups. Is this connected to that at all?

  • JAN CRAWFORD GREENBURG:

    No, it's not, and terrorism was not mentioned today during arguments. But of course when you hear detention of immigrants mentioned, the case is going to be closely followed and certainly people are looking for clues of what the court might ultimately decide. But this case did not address those issues.

  • GWEN IFILL:

    So how is this different?

  • JAN CRAWFORD GREENBURG:

    This case involves the rights of permanent resident non-citizen those have been convicted of crimes, many of them have lived in this country almost their entire lives, got into trouble with the law, convicted of a crime, served time, and it represents a challenge to a 1996 law that says those non-citizens if they've committed a certain type of crime must be detained during the course of their deportation proceedings.

  • GWEN IFILL:

    The government's case when they are challenged, when the ACLU – I guess —

  • JAN CRAWFORD GREENBURG:

    That's right, ACLU is representing one of the immigrants.

  • GWEN IFILL:

    So what is the government's response if the ACLU says why shouldn't these people have access to lawyers, they are legal permanent residents, even if they are convicted of a crime.

  • JAN CRAWFORD GREENBURG:

    The government would say they've gotten their due process right throughout their criminal proceedings and they were convicted of a crime, and it's within the government's judgment to deport non-citizens who are convicted of certain in many cases violent offenses.

  • GWEN IFILL:

    So why not just deport them, why hold them?

  • JAN CRAWFORD GREENBURG:

    Well, I mean, they've got to still go through. Anyone within the boundaries of the United States are entitled to due process rights and they're still entitled to these hearings, and the issue is whether or not, as the ACLU argues, whether or not these non-citizens should be entitled to a bond hearing, an individualized bond hearing that could enable them to be released during the course of their deportation hearings. Many of these people have been held for long periods of time while awaiting those proceedings to conclude.

  • GWEN IFILL:

    Did the justices seem swayed in either direction?

  • JAN CRAWFORD GREENBURG:

    I think that the most vocal justices today seem to support the government and the I N S and the position that was taken by the solicitor general — that the government had the right to implement this type of immigration policy, to protect and control our nation's borders, and as the solicitor general said, to prevent, as he called it, the culturalization of a large type of criminal class that's just kind of operating freely. The government maintains that they need to be able to detain these kind of non-citizens to prevent them from fleeing during the proceedings.

  • GWEN IFILL:

    Okay, well, Jan, we'll check in with you when we find out how these cases turn out. Thanks again.

  • JAN CRAWFORD GREENBURG:

    You're welcome.

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