Here’s a problem you might never see coming: A supervisor who harbors resentment against a subordinate because of her protected classification decides to hold her to the letter of the law when it comes to a benefit such as
Meanwhile, other employees get preferential treatment—such as additional unpaid leave after their leave expires or when they are not otherwise eligible for leave.
That disparate treatment may not violate the FMLA. It can, however, be discrimination based on the employee’s protected class.
Recent case: Evelyn Butcher, who is Hispanic, worked as a technical support specialist for a decade, receiving good reviews. Then she began working for a new supervisor, whom Butcher later said was biased against Hispanics.
Butcher took FMLA leave to undergo a medical procedure. When she ran out of leave, she asked the supervisor for additional time. He refused and she lost her job.
Butcher sued, alleging that her supervisor had treated non-Hispanic subordinates more favorably. The court said her case could go to trial. (Butcher v. U.T. Health Science Center at Houston, No. 08-CV-0244, SD TX, 2008)
Final note: Make sure HR approves any deviation from set rules in advance. On an ongoing basis, someone in HR should evaluate whether there is a pattern to such requests. Do they come from the same supervisors? Do only some employees get special treatment? Is there a racial, sexual or age pattern? If so, either change the underlying rule or stop the special treatment.
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