On the issue of whether states, as employers, may be liable for damages for violating the FMLA, it is fair to say that the U.S. Supreme Court lacks a consensus. On March 20, 2012, the Court said states cannot be sued for damages for violating the self-care provisions of the FMLA, i.e., those provisions dealing with an employee’s own serious health condition. Coleman v Court of Appeals of Maryland. That decision has five opinions: four justices joined the plurality opinion; two wrote concurring opinions; two dissented; and two justices joined in not quite all of that dissent.

In 2003, the Supreme Court said states may be sued for damages for violating the family leave provisions of the FMLA. Nevada Dept of Human Resources v. Hibbs, 538 U.S. 721 (2003). That decision has five opinions as well: five justices joined the majority opinion; three joined in a concurring opinion; one wrote a separate concurring opinion; three joined in a dissent; one justice filed a separate dissent. 


The different outcomes are due to the Court’s evaluation of whether Congress had the authority to abrogate states’ sovereign immunity from suits for damages. Congress may abrogate that immunity to remedy or prevent state conduct which violates the equal protection clause of the Fourteenth Amendment. 


In Coleman, the Court held that Congress could not abrogate State immunity for suits for damages under the self-care provision of the FMLA because “[t]here is nothing in particular about self-care leave, as opposed to leave for any personal reason, that connects it to gender discrimination.”


In Hibbs, the majority held that Congress appropriately abrogated states’ sovereign immunity because Congress had evidence that states had family leave policies that differentiated on the basis of sex and administered neutral family leave policies in ways that discriminated on the basis of sex.


An unresolved issue in Coleman is whether a plaintiff may sue a state for an FMLA violation and obtain injunctive relief. Two dissenters stated that since the FMLA was also an exericise of Congressional authority under the Commerce Clause, a plaintiff may obtain equitable relief, even if not money damages.