by Mindy Chapman, Esq.
Do you have a soft heart? Do you sometimes grant employees “special leave” to take care of their school-age kids? We’re not talking about sick kids whose parents may be entitled to coverage under theAct ( ). We are talking about Jonny’s-school-is-closed-today leave.
Beware if you allow such special leave for mothers in your workplace, but not for fathers. One court just warned, “A company’s ‘special leave’ not grounded in law just may be discriminatory.”
Case in Point: Gary Ehrhard, a traffic controller for the Department of Transportation (DOT), asked his boss for leave on two occasions to care for his daughters (ages 8 and 11) when his wife was unavailable. The requests were denied. Ehrhard pointed out that some females in the office had received such special leave without pay (LWOP) to care for their young kids.
Ehrhard sued for gender discrimination. He showed that three other female traffic controllers had “special open-ended arrangements” for leave without pay (LWOP) to care for their young kids.
While the DOT admitted to the special LWOP arrangements, it argued that they were made for part-time female employees to help them return to a full-time status and, therefore, these women were not “similarly situated” to Ehrhard.
Result: The court sided with Ehrhard and sent his case to a jury trial, saying, “The law does not require the employees to be similarly situated in all respects, but rather requires that they be similarly situated in all material respects.” (Ehrhard v. LaHood, E.D.N.Y., 2012)
2 lessons learned … without going to court
1. Special arrangements are e’specially dangerous. Supervisors who engage in willy-nilly leave arrangements risk discrimination lawsuits based on gender and other protected characteristics, including race, age and religion.
2. Leave requests must have a clear and consistent process. In this case, the court noted the women could request leave orally, while Ehrhard had to put it in writing. That’s not fair.
Author: Mindy Chapman is an attorney and president of Mindy Chapman & Associates LLC. She is a master trainer and co-author of the book, Case Dismissed! Taking Your Harassment Prevention Training to Trial. Sign up to receive her blog postings at www.BusinessManagementDaily.com.
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