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Nevada family medical leave case goes to U.S. Supreme Court

Geoff Dornan, Appeal Capitol Bureau

The U.S. Supreme Court on Wednesday will hear arguments over whether Nevada has a sovereign right to ignore a sex-discrimination lawsuit involving the federal Family Medical Leave Act.

The case was filed by William Hibbs, who claims his firing by the Human Resources Department after he took leave to care for his seriously injured wife is blatant sex discrimination. He said a woman employee would have been granted the extra leave to care for a family member.

The state claimed immunity from the lawsuit under the 11th Amendment, which protects states from private lawsuits.

While state and federal district court in Reno agreed with the state’s arguments, the Ninth Circuit Court of Appeals in San Francisco reversed the ruling. The appeals court agreed Hibbs had a right to sue the state and he had indeed been discriminated against when human resources officials cut his leave short and ordered him back to work.

Deputy Attorney General Paul Taggart said Nevada doesn’t tolerate gender discrimination in state government, but Congress cannot force the state to waive its immunity to lawsuits based on an act of Congress.

“Except in very rare situations, states control when and where to waive their immunity,” he said.

But the National Partnership for Women and Families, which spearheaded the drive to pass the Family Medical Leave Act, said Congress has the right and the power to ban gender discrimination by state governments.

“Until recently, every state had sex-based laws placing limitations on women’s workplace opportunities that did not apply to men and in other ways reinforcing distinct male and female social roles,” said a National Partnership official.

It pointed out those laws have been largely struck down.

In the same way, the organization pointed out, employers have discriminated against men by denying them family leave they offered to women.

Reno lawyer Treva Hearne said the Hibbs case fits that description.

“The U.S. Congress does have the right to pass laws that remedy sex discrimination and that obviously applies to men too,” she said.

Attorney General Brian Sandoval said Nevada must defend itself before the U.S. Supreme Court to show the state does not violate the constitutional rights of its employees.

Hibbs took time off because his wife, Dianne, was seriously injured in a car wreck. Hibbs originally asked for leave to care for her under the family leave law, but then switched to take paid leave first. When he finished with the paid leave, he tried to use the unpaid family medical leave, but was told that had been used up at the same time as his paid leave.

State officials ordered him back to work shortly before his wife was scheduled for surgery in 1997. When he didn’t return, he was terminated.

U.S. Attorney General John Ashcroft’s office has joined Hibbs’s lawyers and the National Partnership in opposing the state of Nevada’s immunity claim.