Does Your Company Give ‘Special Leave’ to Working Moms?

Do you have a soft heart? Do you sometimes grant employees “special leave” to take care of their school-aged kids? We’re not talking about sick kids whose parents may be entitled to coverage under the Family and Medical Leave Act (FMLA). We are talking about Suzie-has-a-school-play leave and Jonnie’s-school-is-closed-today leave. Beware if you allow such leave for working moms but not working dads. 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 unable to be there. One request was flatly denied while the other was partially 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 evidence that three other female traffic controllers had “special open-ended arrangements” for LWOP based on verbal requests that were almost always granted.

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. The DOT also argued that Ehrhard was not entitled to FMLA leave because his request did not involve any “serious health condition” of his children.

Ehrhard’s suit also included a retaliation complaint. He claimed that, after he raised the gender-bias claim, agency managers were instructed to deny all of Ehrhard’s future leave requests.

Result: The court denied the DOT’s request for a summary judgment and sent the 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., No. 2:09-cv-01793, 3/28/12)

3 Lessons Learned … Without Going to Court

1. Special arrangements are e’specially dangerous. Managers and supervisors who engage in willy-nilly leave arrangements risk discrimination lawsuits not only based on gender but 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 with an explanation of why he needed it. That’s not fair, which is why Ehrhard sued for discrimination.

3. Keep your antennas up for retaliation. This is the second year in a row that retaliation is the most popular employee complaint in bias charges filed with the Equal Employment Opportunity Commission. Make sure you have a clear policy on how to report retaliation and you take prompt, effective action to immediately stop it.