From the diaries by Armando.

In 2000, Judge Samuel Alito authored an opinion in which he concluded that Congress did not have the power to require state employers to comply with the Family Medical Leave Act. This ruling was overturned by the Supreme Court in 2003, with a 6-3 margin. Voting in dissent? That's right, everyone's favorite activist justice, Antonin Scalia.

Now why should this somewhat arcane labor issue be of interest to me, particularly in light of Alito's involvement in the much more controversial and interesting Casey decision? Well, I am an employee of the state of Washington. Had Alito and Scalia gotten their way, my employers could have denied me leave, and I wouldn't be in the position I am now--able to provide assistance to my disabled sister and brother-in-law while he fights for his life against an aggressive and deadly lymphoma. I am here at my sister's and brother-in-law's side because of the Family Medical Leave Act.

In his ruling in Chittister v. Department of Community and Economic Development, Alito argued that the FMLA was an instance of unconstitutional congressional overreach. He also argued that the FMLA was unconstitutional because "there was no evidence for the notion that women are disadvantaged in the workplace when they are not allowed to take family leave. Furthermore, he argued, the requirement that everyone be guaranteed 12 weeks of unpaid family leave was a disproportionately strong remedy":

Notably absent [from the FMLA] is any finding concerning the existence, much less the prevalence, in public employment of personal sick leave practices that amounted to intentional gender discrimination in violation of the Equal Protection Clause.

...Moreover, even if there were relevant findings or evidence, the FMLA provisions at issue here would not be congruent or proportional.

Alito's idea that women are not disadvantaged when they can not take maternity leave seems absurd, both intellectually and factually. Even William Rehnquist, who wrote the Supreme Court's 6-3 opinion in 2003 overturning Alito's ruling, found Alito's argument deeply flawed.

Luckily for me, Rehnquist led the Supreme Court in overturning Alito's flawed decision. Let me reiterate that. Alito's ruling was too conservative for Rehnquist. Let me also point out that Justice O'Connor, the woman who Alito has been named to replace, joined the court majority in deciding that the FMLA was an appropriate federal response to gender discrimination, as the states had a history of basing their leave policies on the stereotype that women should stay home to take care of sick family members or newborn children. Thus, FMLA stands as Congress intended it, and state employees like me can realize its benefits.

But of course, FMLA isn't just about me. The Family Medical Leave Act, passed in 1993, provides for as many as 12 weeks of unpaid leave for employees of all public agencies, all public and private elementary and secondary schools, and companies with 50 or more employees. These employers must provide an eligible employee with up to 12 weeks of unpaid leave each year for the birth and care of the newborn child; placement of a child for adoption or foster care; to care for an immediate family member with a serious health condition; or to take medical leave because of a serious health condition. According the the Department of Labor's most recent survey, in an 18-month period in 1999 and 2000, nearly 24 million Americans took leave from work for an FMLA covered reason.

Alito's and Scalia's hostility toward the FMLA could very well stem from the hostility of business interests, like the U.S. Chamber of Commerce. In part because of lobbying efforts by them, the Department of Labor is currently developing proposals to revise parts of the law. See, the Chamber feels that the law is too vague, and is vulnerable to employee abuse. Because, you know, getting those 12 weeks of unpaid time off from work is just too tempting. How great would it be to forego  your income for three months so you can sit around and watch Oprah?

Gender issues aside (that he could find that there was no foundation for the idea that women were unfairly burdened by not being allowed maternity leave absolutely baffles the mind), this is yet another issue in which Alito is far out of the mainstream of both public opinion and public experience. From Labor Department surveys we know that:

  • The overwhelming majority of employers said the use of intermittent leave had no impact on productivity or profitability.

  • More than four in five employees surveyed believed that every worker should have up to 12 weeks of unpaid leave in a year for family and medical problems.

  • Two-thirds of employees believed 12 weeks of unpaid leave in a year for family and medical problems was not an unfair burden on co-workers.

  • 85 percent of employees reported that the taking of leave by co-workers had a positive or neutral impact on them.

  • While the vast majority of American workers support FMLA, and a majority of American companies provide it without detriment to their own bottom line, Alito thinks it goes too far.

    The United States is the only industrialized nation in the world that doesn't provide paid family leave. Should another FMLA case come before a Supreme Court with both Alito and Scalia, we might even lose the unpaid leave we have now. That would leave millions of families, like my own, struggling to care for ourselves, our loved ones. In terms of family values, I don't know what could be more critical.

    Originally posted at:

    Originally posted to Daily Kos on Thu Nov 03, 2005 at 02:04 PM PST.

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