Texas attorney Gaines West is asking the U.S. Supreme Court to define what constitutes a child under the Family and Medical Leave Act.
A former Texas A&M University professor attempted to use “family-care leave” to care for the distinct medical needs of her preborn child, but the state argued that such care constitutes “personal-care leave” under federal law.
Background
The Family and Medical Leave Act (FMLA) is a federal law that entitles eligible workers to leave for a family member’s serious health condition as well as their own.
Dr. Erin Snider, a former professor of international affairs at Texas A&M, took FMLA leave to receive medical care during the 2017-18 and 2018-19 academic years. One leave was due to a miscarriage and resulting health effects, while the second was for an embryo transfer and accompanying in vitro fertilization (IVF) treatment.
At the end of her probationary period, Dr. Snider applied for a tenure position with the university but was denied, allegedly based on a five-year review of her body of work instead of a review of her work based on the extensions to her “tenure clock” that had previously been granted by the university.
Snider filed a state-level lawsuit against the university, alleging the denial of her tenure was illegal discrimination and retaliation for taking FMLA family-care leave.
She contended that she sought and took leave under both the family-care provision and the self-care provision, implying that caring for the distinct medical needs of a preborn child constitutes “family care” under the FMLA.
The State of Texas, representing the university, disagreed, arguing that “an unborn child does not fall within the FMLA’s definition” of a son or daughter and that pregnancy-related care should instead be treated as the mother’s self-care. The State sought to have Snider’s claims dismissed on those grounds.
The district court disagreed, and the State appealed.
On appeal, the Fifteenth Court of Appeals of Texas recognized that Snider’s case presented an unresolved legal question and articulated that leave taken to address an unborn child’s serious health condition could qualify as family-care leave.
However, the court found no standard for determining where to draw the line between the two types of care. Nonetheless, it ultimately concluded that evidence of Snider’s treatments constituted self-care. This reversed the district court order, effectively shielding the university from Snider’s claims.
The Supreme Court of Texas denied both review and rehearing, leaving the Fifteenth Court decision in place.
A Question for the U.S. Supreme Court
Attorney Gaines West, representing Dr. Snider, filed a petition for a writ of certiorari, asking the U.S. Supreme Court to consider two unresolved questions.
First, whether “leave taken by a pregnant woman to care for her unborn child’s serious health condition can constitute family-care leave” under the FMLA.
If so, the Court is then asked to determine “whether a court may impose a heightened requirement on pregnant women—and only pregnant women—to prove that the leave she took was for her child’s serious health condition rather than for her own serious health condition” under the FMLA.
Notably, West argued that pregnant women were “never intended by Congress to have a greater burden of proof to use family care leave for the serious health condition of her unborn child. Yet this is exactly the result in Texas, sanctioned by the Supreme Court of Texas.”
In petitioning the Court to answer these questions, West highlighted the lack of a clear governing standard for plaintiffs, employers, and courts to follow.
“This uncertainty not only creates inconsistency in the interpretation and application of the FMLA, but it also incentivizes litigation gamesmanship since a mother with an unborn child suffering from a serious health condition may be able to choose to file in whichever state or federal forum has already signaled that it will characterize that evidence as family-care leave rather than self-care leave,” wrote West.
He further argued precisely what he believes the Court ought to decide.
“This Court should resolve that gap by holding that a pregnant employee’s leave connected to a documented serious risk to her unborn child’s health is presumptively family-care leave, with the burden falling on the employer to rebut that presumption with evidence that the treatment addresses only the employee’s own condition,” West concluded.
Amicus briefs are expected to be filed in the coming weeks.
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