The Supreme Court recently held that state employees have the right to file civil actions in federal court to enforce the Family and Medical Leave Act (FMLA). Nevada Dept. of Human Resources v. Hibbs, S. Ct. No. 01-1368 (5/27/03). The FMLA grants private, state, and federal employees up to twelve work weeks of unpaid leave annually because of a “serious health condition” or to take care of a spouse, child, or parent with a “serious health condition.” The Court explained that Congress’ language in the FMLA makes it unmistakably clear that Congress intended for state employees to have this right to sue the states, which are normally immune to private suits. Indeed, Title I of the FMLA, which governs leave for state and private employees, expressly provides a private right of action to remedy employer actions that violate the FMLA. The Court reasoned that the states’ record of unconstitutional, gender-based discrimination in administering leave benefits is “weighty enough” to justify this provision.

Title II of the FMLA, which governs leave for federal civil service employees, however, contains no analogous provision giving federal employees the right to enforce the FMLA in federal court. Several lower federal courts have reviewed this issue, and all of these courts decided that federal employees have no right to bring civil actions under the FMLA. In the most recent decision, the U.S. Court of Appeals for the Ninth Circuit held that Title II barred a federal employee’s FMLA claims because “it is axiomatic that suits against the government are barred by sovereign immunity absent an unequivocally expressed waiver.” Russell v. U.S. Dept. of Army, 191 F.3d 1016 (9th Cir. 1999). Federal employees, therefore, are left with limited options to enforce the FMLA.

If an agency violates a federal employee’s FMLA rights, the employee may file an administrative grievance or, if the employee is a member of a bargaining unit, he or she may file a grievance under a union contract. If an agency subjects a federal employee to disciplinary or adverse actions because the employee took or requested leave under the FMLA, the employee can raise FMLA rights as a defense. Finally, if an agency is discriminating in its administration or application of FMLA rights, a federal employee can contact the agency’s EEO Office to complain.