Suits Against State Employers Under the Family and Medical Leave Act: Analysis of Nevada Department of Human Resources v. Hibbs

Suits Against State Employers Under the Family and Medical Leave Act: Analysis of Nevada Department of Human Resources v. Hibbs

Order Code RL31604
CRS Report for Congress
Received through the CRS Web
Suits Against State Employers
Under the Family and Medical Leave Act:
Analysis of Nevada Department of Human
Resources v. Hibbs
Updated May 26, 2004
name redacted
Legislative Attorney
American Law Division
Congressional Research Service ˜ The Library of Congress

Suits Against State Employers Under the Family and
Medical Leave Act: Analysis of Nevada Department of
Human Resources v. Hibbs
Summary
This report discusses Nevada Department of Human Resources v. Hibbs, a
recent case in which the Supreme Court held that states may be sued by private
individuals under the Family and Medical Leave Act (FMLA). This report provides
an overview of the Supreme Court’s decision, coupled with a discussion of its
significance for state immunity from private lawsuits under other federal statutes.

Contents
I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Overview of the Family and Medical Leave Act . . . . . . . . . . . . . . . . . . . . . . 1
Case History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
II. The Legal Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
The Eleventh Amendment and Sovereign Immunity . . . . . . . . . . . . . . . . . . . 3
The Fourteenth Amendment and the Section 5 Enforcement Power . . . . . . . 4
III. Supreme Court Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
The Eleventh Amendment and Sovereign Immunity . . . . . . . . . . . . . . . . . . . 5
The Fourteenth Amendment and the Section 5 Enforcement Power . . . . . . . 5
The Dissent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
IV. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Consequences for Other Federal Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Remaining FMLA Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Other Federal Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Alternative Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Suits Against State Employers Under the
Family and Medical Leave Act:
Analysis of Nevada Department of Human
Resources v. Hibbs
I. Introduction
This report discusses Nevada Department of Human Resources v. Hibbs,1 a
recent case in which the Supreme Court held that states may be sued by private
individuals under the Family and Medical Leave Act (FMLA). This report provides
an overview of the Supreme Court’s decision, coupled with a discussion of its
significance for state immunity from private lawsuits under other federal statutes.
Overview of the Family and Medical Leave Act
Enacted in 1993, the Family and Medical Leave Act (FMLA)2 was designed to
aid workers who face the competing demands of the workplace and the family.
According to the act’s findings, employees who are ill or who are caring for a child
or a sick relative are often forced to choose between their job security and family
responsibilities.3 Congress also found that such caretaking demands typically
constitute a disproportionate burden on women, who have historically been
constrained by stereotypical assumptions about gender roles.4 Concerned that any
leave policy that favored women over men would perpetuate gender stereotypes, as
well as cause employers to discriminate against women in hiring, Congress enacted
the gender-neutral FMLA.
According to Congress, the purposes of the FMLA are to balance the demands of
the workplace with the needs of families, to promote the stability and economic
security of families, and to allow workers to take reasonable leave to handle family or
medical needs.5 Emphasizing that these goals should be met in a manner that is
consistent with the Equal Protection Clause of the Fourteenth Amendment, Congress
sought to reduce the potential for employment discrimination on the basis of sex and
1 538 U.S. 721 (2003).
2 29 U.S.C. § 2601 et al.
3 Id. at § 2601(a)(3).
4 Id. at § 2601(a)(5).
5 Id. at § 2601(b).

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to promote the goal of equal employment opportunity for men and women by enacting
a policy that grants leave to all eligible employees, regardless of gender.6
Under the FMLA, employees may take up to 12 weeks of unpaid leave under three
specific circumstances. These circumstances include (1) leave taken due to the
employee’s own serious health condition, (2) leave taken to care for the employee’s
relative with a serious health condition, or (3) leave taken to care for an employee’s
new child, including a child placed with the employee through adoption or foster care.7
In order to enforce these leave provisions, the act authorizes employees to sue for
damages, equitable relief, and attorney’s fees if their rights have been violated.8
Likewise, the federal government may sue employers on behalf of individual
employees for damages and injunctive relief.9
Case History
In Nevada Department of Human Resources v. Hibbs,10 a state employee was fired
for allegedly exceeding his 12 weeks of FMLA leave to care for his ill wife.
Contending that his FMLA leave should run subsequent to, not concurrent with, the
paid leave he had already taken, the employee sued the Nevada Department of Human
Resources for misapplying the FMLA. Ruling for the state, the district court dismissed
the lawsuit on the grounds that the employee could not sue the agency because Nevada
is immune from private lawsuits under the Eleventh Amendment. The Court of
Appeals for the Ninth Circuit, however, reversed the district court’s decision.11 Shortly
thereafter, the Supreme Court granted certiorari,12 and the Court ultimately upheld the
Ninth Circuit’s ruling that the FMLA was enacted pursuant to a valid exercise of
Congress’ § 5 enforcement power and therefore did indeed constitute a legitimate
abrogation of state immunity from private suits.13
Notably, the Hibbs decision came in the wake of two similar sovereign immunity
cases that the Court had ruled on previously. In Kimel v. Florida Board of Regents and
in Board of Trustees of University of Alabama v. Garrett, the Supreme Court held that
federal statutes that target, respectively, age and disability discrimination do not validly
abrogate state sovereign immunity because they do not constitute appropriate
enforcement legislation.14 Thus, the Hibbs case represents a reversal of a recent trend
6 Id. at §2601(b)(4)-(b)(5).
7 Id. at § 2612(a)(1).
8 Id. at §2617(a)(1)-(3).
9 Id. at §§2617(b)(2)-(3), (d).
10 538 U.S. 721 (2003).
11 273 F.3d 844 (9th Cir. 2001), cert. granted, 536 U.S. 938 (2002).
12 536 U.S. 938 (2002).
13 Nev. Dep’t of Human Res. v. Hibbs, 538 U.S. 721, 740 (2003).
14 Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 83-89 (2000); Bd. of Trustees of the Univ. v.
Garrett, 531 U.S. 356, 366-67 (2001). For a discussion of Kimel, see CRS Report RL30364,
(continued...)

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in which the Court has generally ruled in favor of states rights in cases involving
congressional abrogation of state sovereign immunity.15
II. The Legal Background
As noted above, the Hibbs case raised several important legal issues that stem
from two different constitutional amendments, namely the Eleventh Amendment and
the Fourteenth Amendment. Each of these amendments, as well as the Supreme Court’s
interpretation of them, is described in this section.
The Eleventh Amendment and Sovereign Immunity
The Supreme Court has long interpreted the Eleventh Amendment as protecting
states from private suits brought in federal court.16 Under this doctrine of sovereign
immunity, however, a state is not immune from such suits if the state voluntarily and
expressly waives such immunity or if the federal government validly abrogates the
Eleventh Amendment. In order to validly abrogate state sovereign immunity, Congress
must both (1) unequivocally express its intent to abrogate that immunity and (2) act
pursuant to a valid exercise of power.17
Although the first part of the above test for congressional abrogation of immunity
is easily satisfied if Congress uses “unmistakably clear” language to convey its intent
to abrogate,18 the second part of the test involves more complicated analysis. Under this
test, Congress may act pursuant to a valid exercise of power by means of its
enforcement power under § 5 of the Fourteenth Amendment.19 Indeed, ever since the
Court’s decision in Seminole Tribe v. Florida eliminated congressional authority to
14 (...continued)
Legal Issues Affecting the Right of State Employees to Bring Suit Under the Age
Discrimination in Employment Act and Other Federal Labor Laws. For a discussion of
Garrett, see CRS Report RS20828, University of Alabama v. Garrett: Federalism Limits on
the Americans with Disabilities Act. For a general discussion of sovereignty immunity and
federalism issues, see CRS Report RL30315, Federalism, State Sovereignty and the
Constitution: Basis and Limits of Congressional Power.
15 Indeed, the Court, in a case involving a different provision of the statute involved in
Garrett, recently held that a disabled individual could, under certain circumstances, sue the
state for discrimination in its public services, programs, and activities. This decision,
however, was limited to cases involving violations of fundamental rights, such as access to
the courts. Tennessee v. Lane, No. 02-1667, 2004 U.S. LEXIS 3386 (May 17, 2004).
16 Seminole Tribe v. Florida, 517 U.S. 44, 54 (1996); Hans v. Louisiana, 134 U.S. 1, 15
(1890).
17 Seminole Tribe, 517 U.S. at 55.
18 Atascadero State Hospital v. Scanlon, 473 U.S. 234, 242 (1985).
19 Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976).

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abrogate state sovereign immunity pursuant to its Commerce Clause power,20 the
Fourteenth Amendment remains one of the few judicially approved mechanisms by
which Congress can enact statutes that permit private citizens to enforce federal
legislation by suing a state.
The Fourteenth Amendment and the Section 5 Enforcement
Power
As noted above, in order to determine whether a statute has been enacted pursuant
to a valid act of power, a court must begin by examining the scope of Congress’
enforcement power under the Fourteenth Amendment.21 The Supreme Court has long
recognized the sweeping powers guaranteed to Congress under § 5 of the Fourteenth
Amendment:22
Congress’ § 5 power is not confined to the enactment of legislation that merely
parrots the precise wording of the Fourteenth Amendment. Rather, 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.23
In City of Boerne v. Flores, the Supreme Court described the limits of this
enforcement power by noting that Congress cannot “decree the substance of the
Fourteenth Amendment’s restrictions on the States.”24 According to the Court,
Congress may enforce the Fourteenth Amendment by enacting legislation that remedies
or prevents a constitutional violation, but only the judicial branch may “determine
what constitutes a constitutional violation.”25 Thus, Congress can enact legislation that
prohibits state conduct that violates the Fourteenth Amendment, just as it can enact
broader remedial legislation, but it may not enact substantive legislation that defines
the scope of the constitutional requirements on states.
In order to distinguish between what constitutes appropriate remedial legislation
and what constitutes forbidden substantive legislation, the Boerne Court held that when
Congress enacts remedial legislation, “there must be a congruence and proportionality
20 517 U.S. 44 (1996).
21 Section 1 of the Fourteenth Amendment states in relevant part: “No State shall make or
enforce any law which shall abridge the privileges or immunities of citizens of the United
States; nor shall any State deprive any person of life, liberty, or property without due
process of law; nor deny to any person within its jurisdiction the equal protection of the
laws.” U.S. Const. amend. XIV, § 1. Section 5 of the Fourteenth Amendment states: “The
Congress shall have power to enforce, by appropriate legislation, the provisions of this
article.” U.S. Const. amend. XIV, § 5.
22 See, e.g., Katzenbach v. Morgan, 384 U.S. 641 (1966).
23 Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 81 (2000)
24 City of Boerne v. Flores, 521 U.S. 507, 519 (1997).
25 Id. at 519.

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between the injury to be prevented or remedied and the means adopted to that end.”26
As the appeals court noted in Hibbs, “[t]he congruence and proportionality inquiry
requires a reviewing court (1) to identify with some precision the scope of the
constitutional right at issue, and (2) to determine whether the statute in question is an
appropriate remedy for violations of that right.”27
III. Supreme Court Review
The Supreme Court granted certiorari in Hibbs in order to review whether the
family medical leave provision of the FMLA is a valid exercise of the § 5 enforcement
power that abrogates state immunity. As noted above, the Court ultimately upheld the
family medical leave provision in a 6-3 decision, ruling that individuals may sue states
in federal court for violations of the statute.
The Eleventh Amendment and Sovereign Immunity
As noted above, a threshold question in a sovereign immunity case is whether
Congress has unequivocally expressed its intent to abrogate the Eleventh Amendment.
In Kimel, a recent sovereign immunity case, the Supreme Court held that an
enforcement provision in the Age Discrimination in Employment Act, which is
identical to the enforcement provision in the FMLA, was a clear expression of
congressional intent to abrogate state sovereign immunity.28 In Hibbs, therefore, the
Court quickly determined that Congress had satisfied the clear statement rule, thus
meeting the first part of the two-part test to determine whether or not the federal
government has validly abrogated state sovereign immunity.29 However, in order to
determine whether the FMLA was enacted pursuant to a valid act of power - the second
prong of the two-part test - the Court was compelled to engage in a detailed analysis
of whether or not Congress had legitimately exercised its enforcement authority under
§ 5 of the Fourteenth Amendment.
The Fourteenth Amendment and the Section 5 Enforcement
Power
In order to determine whether the family leave provision of the FMLA was
enacted pursuant to a valid exercise of power, the Hibbs Court used the two-part
congruence and proportionality test to (1) identify the constitutional violation that the
statute in question is designed to prevent, and (2) to determine whether the legislative
record identifies actual constitutional violations that justify a broad statutory remedy.
Applying the first part of the congruence and proportionality test, the Court found that
the constitutional right at issue in the FMLA was the equal protection of the sexes since
26 Id. at 520.
27 Hibbs v. Nev. Dep’t of Human Res., 273 F.3d 844, 853 (9th Cir. 2001), cert. granted, 536
U.S. 938 (2002).
28 528 U.S. 62, 73-78 (2000).
29 Nev. Dep’t of Human Res. v. Hibbs, 538 U.S. 721, 726 (2003).

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the statute “aims to protect the right to be free from gender-based discrimination in the
workplace.”30
Under the second element of the test, the Court’s next inquiry was to determine
whether the family leave provision of the FMLA constitutes an appropriate remedy for
sex discrimination. The Court began its task by evaluating whether Congress had found
sufficient evidence of unconstitutional employment discrimination by the states. Noting
that the Court’s own decisions reveal a long history of state laws that discriminate
against women in employment, the majority in Hibbs found that Congress had
originally attempted to remedy such discrimination by enacting Title VII of the Civil
Rights Act of 1964, which abrogated state sovereign immunity with regard to
employment discrimination on the basis of sex.31 Despite the passage of Title VII,
Congress later found evidence that states had continued “to rely on invalid gender
stereotypes in the employment context, specifically in the administration of leave
benefits,”32 thus prompting legislators to enact the FMLA. For example, the legislative
record behind the FMLA reveals evidence that many states granted lengthy maternity
leave but did not offer parallel paternity leave, thereby reflecting stereotypical notions
of caretaking roles, and that some states with discretionary leave policies applied such
policies in a discriminatory fashion.33 Because the majority in Hibbs found that
Congress could reasonably conclude that such evidence reflected a persistent pattern
of unconstitutional employment discrimination by the states, the Court held that
Congress was justified in enacting the FMLA as appropriate remedial legislation under
its § 5 enforcement power.34
The majority distinguished the result in Hibbs from the outcome in two other
recent Supreme Court cases – Kimel and Garrett – that involved state sovereign
immunity from suits under federal anti-discrimination statutes.35 According to the
Court’s analysis, because age and disability discrimination are subject to rational basis
review under the Court’s equal protection doctrine, states may constitutionally
differentiate between nonsuspect classes like age and disability if they demonstrate a
rational reason for doing so, thus making it more difficult for Congress to demonstrate
a pattern of unconstitutional state behavior that warrants remedial federal legislation
under its § 5 enforcement power. Sex discrimination, however, receives heightened
scrutiny, which requires states and other governmental actors to prove that gender
classifications are substantially related to an important governmental interest. Since it
is more difficult for gender-based classifications to pass constitutional muster, it is
30 Id. at 728.
31 Id. at 729-30.
32 Id. at 730.
33 Id. at 730-35.
34 Id. at 734.
35 In spite of the Garrett ruling, the Court’s recent decision in Tennessee v. Lane allowed a
disabled individual to sue the state for discrimination in its public services, programs, and
activities. The Lane decision, however, was limited to cases involving violations of
fundamental rights, such as access to the courts. Tennessee v. Lane, No. 02-1667, 2004 U.S.
LEXIS 3386 (May 17, 2004).

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easier for Congress to establish a pattern of unconstitutional discrimination when
suspect classifications like sex are involved.36
In addition, the Hibbs Court declared that the scope of the FMLA was narrowly
targeted to the violation at issue because, for example, the statute requires unpaid leave
only and covers only certain employees and employers.37 Thus, the majority concluded:
We believe that Congress’ chosen remedy, the family-care leave provision of the
FMLA, is ‘congruent and proportional to the targeted violation.’ . . . 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. 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.38
The Dissent
Although the majority opinion in Hibbs garnered the support of six Justices, the
remaining three Justices joined in a spirited dissent that criticized the majority opinion
on several grounds39. First, the dissent criticized the proffered evidence of state
employment discrimination, arguing that both Congress and the Court had supplied
evidence of discrimination by private employers but had failed to demonstrate an actual
pattern of unconstitutional behavior on the part of the states.40 Indeed, the dissent
specifically noted that several states had already tackled the employment discrimination
issue by enacting gender-neutral leave policies before Congress passed the FMLA.41
Another criticism leveled by the dissent was that the FMLA did not represent
appropriate remedial legislation but rather constituted a “substantive entitlement
program” imposed on the state.42 Under this view, the dissent argued that the FMLA
is a benefit program designed to provide twelve weeks of leave and not a remedial
statute that requires states to provide leave on an equal basis.43 Drawing on these
arguments, the dissent contended that the FMLA was not congruent and proportional
36 Nev. Dep’t of Human Res. v. Hibbs, 538 U.S. 721, 735-37 (2003).
37 Id. at 738-40.
38 Id. at 737.
39 The dissenting Justices included Justice Kennedy, Justice Scalia, and Justice Thomas.
40 Nev. Dep’t of Human Res. v. Hibbs, 538 U.S. 721, 745-54 (2003).
41 Id. at 750.
42 Id. at 754.
43 Id. at 754-55.

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remedial legislation and thus was “not a valid abrogation of state sovereign
immunity.”44
IV. Conclusion
The Supreme Court held in Hibbs that the family leave provision of the FMLA
was enacted pursuant to a valid exercise of Congress’ § 5 enforcement power and,
therefore, did indeed constitute a legitimate abrogation of state immunity from private
suits. In doing so, the Court appears to be drawing in the sovereign immunity context
the same line between statutes that protect suspect and nonsuspect classifications as it
has drawn in its Equal Protection doctrine. Although the Hibbs decision represents a
departure from other federalism cases that have preserved state immunity despite
congressional attempts to override such immunity, the case does not necessarily
represent an end to the trend in favor of states’ rights. Indeed, state suit provisions
under other federal statutes remain under legal attack in the federal courts, and the two
remaining leave provisions in the FMLA may also face constitutional challenges. It is
important to note, however, that even if the Court finds other state suit provisions to
be unconstitutional, state employees whose statutory rights have been violated still
have remedies available to them. The potential consequences for state suit provisions
under other federal laws, as well as available alternative remedies, are discussed below.
Consequences for Other Federal Laws
Although the Supreme Court affirmed the constitutionality of the family leave
provision at issue in Hibbs, the remaining two leave provisions in the FMLA may be
affected by the Court’s ruling. Furthermore, the Hibbs decision also affects state suit
provisions authorized under other federal statutes aimed at preventing discrimination.
Some of the likely implications are discussed briefly below.
Remaining FMLA Provisions. Individual suits against state employers under
both the family childcare provision and the personal sick leave provision of the FMLA
are likely to be affected by the Supreme Court’s decision in Hibbs. Since Hibbs upheld
the family leave provision, private suits against states under the family childcare
provision are also likely to be upheld against any future Eleventh Amendment
challenges. Like family medical leave, childcare leave would be defended on the
grounds that it is intended to combat gender discrimination and therefore constitutes
appropriate § 5 enforcement legislation capable of abrogating state immunity.
Unlike family medical leave, however, the personal sick leave provision of the
FMLA cannot be justified as protecting against gender discrimination. Rather, the
personal sick leave provision has traditionally been defended on the grounds that it
protects against discrimination based on temporary disability. However, in the wake
of the Supreme Court’s decision in Garrett and in spite of the recent Tennessee v. Lane
case, it appears highly unlikely that the Court would uphold legislation based on
disability discrimination as valid § 5 legislation. Indeed, at least nine of the federal
Courts of Appeals to consider the issue have held that state immunity is not validly
44 Id. at 759.

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abrogated under the personal sick leave provision,45 and the Supreme Court is likely
to agree. Indeed, the government has already conceded as much, announcing that it is
“abandoning further constitutional defense of the abrogation of Eleventh Amendment
immunity for the individual sick leave provision.”46
Other Federal Laws. As with the remaining FMLA provisions, the Supreme
Court’s decision in Hibbs is likely to affect other federal statutes that contain state suit
provisions. Given that the Court in Hibbs upheld the family leave provision as valid
§ 5 enforcement legislation in part because it was intended to combat discrimination
against a suspect class, state suit provisions authorized under other federal statutes
aimed at preventing discrimination against suspect classes would likely be upheld as
well. For example, prior to the Hibbs decision, statutory provisions authorizing private
race or gender discrimination claims under Titles VI or VII of the Civil Rights Act or
private suits under the Equal Pay Act (EPA) or Title IX of the Education Amendments
of 1972 had come under legal challenge. Despite the result in Hibbs, however,
disparate impact discrimination claims brought under these statutes remain susceptible
to attack. Because the Constitution prohibits disparate treatment only, private disparate
impact claims may be perceived of as exceeding the scope of § 5 in a manner that lacks
the requisite congruence and proportionality. The federal courts have begun to hear
sovereign immunity challenges to private suits brought under these statutes, with mixed
results.47 However, a detailed analysis of these cases is beyond the scope of this report.
Alternative Remedies
Regardless of which way the Supreme Court has ruled in past cases or will rule
in future cases involving sovereign immunity challenges to statutory provisions
authorizing suits against the states, individuals whose statutory rights have been
violated will continue to have recourse to alternatives beyond suing their state
employers for money damages. Indeed, even if the Supreme Court were to rule that
Congress did not validly abrogate the Eleventh Amendment when it enacted a given
45 See, e.g., Brockman v. Wyo. Dep’t of Family Servs,342 F. 3d 1159, 1165 (10th Cir. 2003);
Laro v. New Hampshire, 259 F.3d 1, 11 (1st Cir. 2001); Lizzi v. Alexander, 255 F.3d 128,
136 (4th Cir. 2001);Townsel v. Missouri, 233 F.3d 1094, 1095 (8th Cir. 2000); Chittister v.
Dep’t of Cmty. & Econ. Dev., 226 F.3d 223, 229 (3d Cir. 2000); Kazmier v. Widmann, 225
F.3d 519, 529 (5th Cir. 2000); Sims v. Univ. of Cincinnati, 219 F.3d 559, 566 (6th Cir. 2000);
Hale v. Mann, 219 F.3d 61, 69 (2d Cir. 2000); Garrett v. Univ. of Ala. at Birmingham Bd.
of Trustees, 193 F.3d 1214, 1220 (11th Cir. 1999), rev’d on other grounds, 531 U.S. 356
(2001).
46 Brief for the United States in Opposition at 8, Hibbs v. Department of Human Resources,
273 F.3d 844 (9th Cir. 2001) (No. 01-1368).
47 See, e.g., Nanda v. Univ. of Illinois, No. 01-3448, 2002 WL 31056992, at *1 (7th Cir.
2002) (Title VII); Okruhlik v. Univ. of Arkansas, 255 F.3d 615 (8th Cir. 2001) (Title VII);
Varner v. Ill. State Univ., 226 F.3d 927 (7th Cir.2000) (EPA); Kovacevich v. Kent State
Univ., 224 F.3d 806 (6th Cir.2000) (EPA); Hundertmark v. Fla. Dep't of Transp., 205 F.3d
1272 (11th Cir.2000) (EPA); In re: Employment Discrimination Litig. Against the State of
Ala., 198 F.3d 1305 (11th Cir. 1999) (Title VII); O'Sullivan v. Minnesota, 150 F.3d 431 (5th
Cir.1998) (EPA); Franks v. Ky. Sch. for the Deaf, 142 F.3d 360 (6th Cir.1998) (Title IX);
Crawford v. Davis, 109 F.3d 1281 (8th Cir.1997) (Title IX).

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statute that authorized suits against the states, state immunity from suit would not
necessarily be absolute.
For example, under the FMLA, the federal government is authorized to bring suits
against states in federal court on behalf of individual plaintiffs,48 and such authority is
typically available under other federal statutes that create rights of action against state
employers. Furthermore, despite state immunity from suits seeking money damages,
under the doctrine of Ex parte Young, federal courts have limited jurisdiction over suits
for prospective injunctive relief filed against state officials acting in their official
capacities.49 Thus, a state employee may be able to sue his supervisors for injunctive
relief even if his suit against the state agency is blocked by the Eleventh Amendment.
Another enforcement alternative is available when statutes that provide federal
funding impose the requirement that states waive their immunity from private suit in
exchange for federal funds.50 Although the FMLA is not such a statute, conditioning
waiver upon receipt of federal funds is one way in which Congress may secure an
individual’s right to sue under other anti-discrimination legislation.51 Finally, states
may voluntarily waive immunity by passing legislation that permits enforcement of
state leave laws in state court.52
48 29 U.S.C. §2617(b).
49 Ex parte Young, 209 U.S. 123 (1908).
50 Christina Bohannan, “Beyond Abrogation of State Immunity: State Waivers, Private
Contracts, and Federal Incentives,” 77 NYULR 273, 303-44 (2002).
51 In fact, Congress expressly enacted 42 U.S.C. § 2000d-7, which provides that states shall
not be immune from suit in federal court for violations of any federal anti-discrimination
statute. In Koslow v. Pennsylvania, 302 F.3d 161 (3d Cir. 2002), the court upheld 42 U.S.C.
§ 2000d-7, ruling that state acceptance of federal funds constituted a valid waiver of
immunity under § 504 of the Rehabilitation Act.
52 Brief for Petitioner at 20, Hibbs v. Department of Human Resources, 273 F.3d 844 (9th
Cir. 2001) (No. 01-1368).

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