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Women’s Work—A Commentary by Linda Greenhouse ’78 MSL

The following commentary was posted on newyorktimes.com on April 18, 2012.

Women’s Work
By Linda Greenhouse ’78 MSL

We’re accustomed to talking about a “divided” Supreme Court, riven with ideological conflict. But a mean little 5-to-4 decision that the court issued last month all but overlooked in the breathless run-up to the Affordable Care Act arguments, suggests another kind of divide as well: a gender gap.

For the first time since three female justices have been sitting together, the court considered a sex discrimination case. (I’m not counting last term’s big Walmart case which, although it concerned a claim of sex discrimination, reached the Supreme Court as a case about class-action procedure.) And as the case turned out, the three women, along with the highly evolved Justice Stephen G. Breyer, were on one side – the losing side – while the remaining five men were in the majority.

Before anyone objects that I’m being too cute, and that this array simply maps onto the court’s ordinary ideological alignment, I have to explain further. I’m calling the case, Coleman v. Maryland Court of Appeals, a case about sex discrimination, and it was, as Justice Ruth Bader Ginsburg argued powerfully in her dissenting opinion.

But the remarkable thing is that the justices in the majority didn’t see it that way. In ruling that Congress acted beyond its constitutional authority when it opened the states to damage suits by their employees under a section of the Family and Medical Leave Act, Justice Anthony M. Kennedy and his allies denied that this case had anything to do with sex discrimination. It was simply a case about state immunity from suit. The division on the court was thus not primarily one of ideology but of something even more fundamental: perception.

At issue was the “self-care” provision of the Family and Medical Leave Act, under which public and private sector employers must provide up to 12 weeks of unpaid leave to employees who can’t work because of a health condition. A man who was denied the sick leave he requested sued his employer, the Maryland state court system.

States are generally immune from suits for damages unless Congress has invoked a valid basis for declaring otherwise. The claimed basis here was Section 5 of the 14th Amendment, which gives Congress the power to enforce through “appropriate legislation” the amendment’s guarantees of equal protection and due process. The question in the case was whether allowing state workers to sue for damages for a denial of medical leave was “appropriate” Congressional action. Given the court’s precedents, a positive answer to that question depended on a finding that the provision was aimed at preventing or curing a problem of constitutional dimension, namely sex discrimination by government employers.

Nine years ago, the court considered another provision of the Family and Medical Leave Act, the “family care” provision, which requires up to 12 weeks of unpaid leave for an employee to care for a family member with a serious health condition. A Nevada state employee who was denied leave to care for his ailing wife had filed a lawsuit, and the state claimed that it was immune.

That case, Nevada Department of Human Resources v. Hibbs reached the court as Chief Justice William H. Rehnquist was leading a narrow majority that appeared intent on curbing Congress’s 14th amendment enforcement power; the court had recently ruled that states were immune from damage suits by their employees under the federal laws against discrimination on the basis of age and disability.

So nearly everyone was surprised when Chief Justice Rehnquist, declaring that the Hibbs case was different, delivered a robust majority opinion that affirmed Congress’s power to authorize suits under the family-care provision. By making family leave available to men and women on identical terms, he said, Congress intended to combat “the pervasive sex-role stereotype that caring for family members is women’s work.” He explained that the stereotype caused women to be seen as less reliable and therefore less desirable employees, a situation appropriately remedied by allowing all employees, male and female, to sue for damages.

That was the background for the court’s consideration of the self-care question in the Coleman case. Chief Justice Rehnquist, of course, is gone, and the insight he brought to bear in the Hibbs decision appears to have vanished with him.

Like the family-care provision, the self-care section of the Family and Medical Leave Act makes no reference to gender. Neither section mentions childbirth or pregnancy. Can it really be that Congress had sex discrimination in mind when enacting one provision but not the other? That women who suffer in the workplace from the assumption that they will stay home to take care of a sick baby don’t also suffer from potential employers’ recognition of the obvious fact that women, and not their male colleagues, will need some time off to recover from having the baby in the first place?

Congress debated the Family and Medical Leave Act for eight years before finally enacting it in 1993. Before and during that time, a debate was raging in feminist circles over how the law in general should treat pregnancy. In a 1974 decision, Geduldig v. Aiello the Supreme Court had come to the ridiculous conclusion that as a constitutional matter, discrimination against pregnant women in eligibility for insurance and other benefits was not discrimination on the basis of sex. The court in that case reasoned that distinctions on the basis of pregnancy were not distinctions between men and women but between pregnant women and all non-pregnant people.

So the issue had to be tackled legislatively. Some argued that the law should explicitly require pregnancy leave, recognizing women’s special need. Others warned that this would enshrine a stereotype, labeling women as more expensive, less desirable employees while in fact men and women take medical leave at almost identical rates.

The ultimate decision was to make the “self-care” medical leave portion of the law gender-neutral, and the legislative history makes the reason clear. “A law providing special protection to women,” the House report explained, “in addition to being inequitable, runs the risk of causing discriminatory treatment.” In other words, the self-care provision was rooted in Congress’s desire to protect women against pregnancy discrimination while at the same time not wanting to inflict a new vulnerability.

Justice Ginsburg explained all this in her dissenting opinion, portions of which she read from the bench when the decision was handed down on March 20. “Congress assiduously avoided a legislative package that, over all, was or would be seen as geared to women only,” she said, adding that the Family and Medical Leave Act as a whole “thereby reduced employers’ incentives to prefer men over women, advanced women’s economic opportunities, and laid the foundation for a more egalitarian relationship at home and at work.” The self-care provision was “a key part of that endeavor,“ she concluded.

Justice Ginsburg also said that “pregnancy discrimination is inevitably sex discrimination.” The 1974 Geduldig decision was so “egregiously wrong” on this point that the court, she added, should now overturn it.

Not only did Justice Kennedy’s opinion for the court not respond to that invitation, it failed to acknowledge Justice Ginsburg’s main argument. The self-care provision “makes no reference to any distinction on the basis of sex,” Justice Kennedy said, ignoring Justice Ginsburg’s proof of why this was precisely the point. He continued, “There is nothing in particular about self-care leave, as opposed to leave for any personal reason, that connects it to gender discrimination.” Since the provision was not, in this view, aimed at addressing a problem of constitutional dimension, it was not the “appropriate” legislation necessary to abrogate the states’ immunity from suit.

What to make of this decision? I’d love to know how Rehnquist would have voted. Although his opinion in the 2003 Hibbs case addressed only the family-care provision, because that was all that was at issue, a fair reading of the opinion suggests that he saw the Family and Medical Leave Act as a whole, an appropriate response to “the states’ record of unconstitutional participation in, and fostering of, gender-based discrimination in the administration of leave benefits,” as he put it. The passage he cited from the legislative history – “Historically, denial or curtailment of women’s employment opportunities has been traceable directly to the pervasive presumption that women are mothers first, and workers second” – seems applicable across the board, to pregnancy as well as childcare.

During his 33-year tenure, William Rehnquist was unshakably conservative in nearly all facets of the court’s jurisprudence. But he was open to persuasion on the question of sex discrimination. In 1996, he outraged Justice Antonin Scalia by writing an opinion concurring in the court’s decision to invalidate the Virginia Military Institute’s men-only admissions policy. Justice Ginsburg wrote the majority opinion in that case. With respect to the Hibbs case, she has joked that when she showed Chief Justice Rehnquist’s opinion to her husband, he asked whether she was the chief justice’s ghostwriter.

Her fact- and history-laden dissent in the latest case was, it seems to me, about as persuasive as they come. Justice Ginsburg’s typical writing style is spare, but here she spoke with a passion that she usually keeps in check. Some saw it as a kind of swan song, a summation of a life’s work, but I don’t see it that way at all. I saw it rather as a declaration that sisterhood on the Supreme Court is, if not powerful, at least keeping score.