Nevada case will test federal leave act

Tuesday, Jan. 7, 2003 | 11:17 a.m.

CARSON CITY -- Next week the U.S. Supreme Court will listen to Nevada make its case that the state is immune from lawsuits over violation of the federal Family Medical Leave Act. The arguments that the nation's highest court will hear Jan. 15 involve a Nevada lawsuit that began six years ago.

In 1997, William Hibbs asked for leave from his duties at the state welfare division to care for his ailing wife. The welfare division approved 12 weeks of unpaid leave authorized by the federal law. Later Hibbs was authorized catastrophic leave under a state law that provides for payment while he was off work.

But the state agency said the catastrophic leave would be counted against his federal benefit. A dispute arose and Hibbs did not report for work when the leave expired. He was subsequently fired. He then filed suit.

The 9th U.S. Circuit Court of Appeals ruled that Hibbs was entitled to sue the state after he was fired. The appeals court ruled that Congress, in the 1993 leave act, allowed states to be subject to lawsuits if they violated the family leave law.

Deputy Attorney General Paul Taggart, who will argue the case for Nevada, said the appellate court was wrong.

"Except in very rare situations, states control when and where to waive their immunity," Taggart said. "Congress cannot simply foist that duty upon states and place state treasuries at risk to court judgments."

Nevada argues that Congress can only waive state immunity from lawsuits when states engage in a pattern of discrimination. The only way Nevada can be subject to a family medical leave suit is if Nevada demonstrated it violated employees' constitutional rights.

Frankie Sue Del Papa, the state's former attorney general, said: "We have had no tolerance for gender discrimination in state government during my 12 years as the chief law enforcement officer in Nevada."

In its ruling, the circuit court said Congress, in enacting the family leave act, wanted to wipe out discrimination in employment against women in the work force. The court said Congress determined that the primary responsibility for family caretaking often fell on women who had to leave their jobs to take care of an ailing family member, losing seniority and other benefits.

Because women primarily spent more time taking care of their families, they were less attractive job candidates than men, the court said.

The purpose of the federal leave act was consistent with the Equal Protection Clause of the 14th amendment, and "minimizes the potential for employment discrimination on the basis of sex," the court said.