New York Employment Lawyer Blog

The same ground-ball disability discrimination case passes through our firm every three months. It usually unfolds like this - a potential client calls and informs us that he or she is ineligible for FMLA leave and is being told that his or her position will not be held open if he or she opts for a short leave to accommodate the need for medical treatment for a chronic disability. My advice - let them fire you, sit back and wait for your settlement and watch as the HR representative who fired you is him or herself fired. Permitting the use of accrued paid leave, or unpaid leave, is a form of reasonable accommodation under the Americans with Disabilities Act when necessitated by an employee's disability. While the Second Circuit has not ruled on the issue, many other circuits, district courts throughout the Second Circuit and the EEOC have determined that unpaid leave - even leave beyond that which is permitted by a company's policies - is a reasonable accommodation provided that the company does not face an undue hardship in providing the accommodation. In fact, a federal judge in the Northern District of New York recently refused to dismiss a complaint on a defendant's motion to dismiss where the plaintiff had been fired during a 9 month unpaid leave finding that the plaintiff had alleged a prima facie case of disability discrimination for failure to accommodate. As many an HR employee has learned the hard way, the right to unpaid leave for medical treatment of a disability is protected by both the FMLA and the ADA for qualifying disabilities.

The FMLA permits employers to require employees to use their accrued paid vacation leave and their sick leave for some or all of their FMLA leave. According to the FMLA regulations, an employer can require paid sick leave to run concurrent with FMLA leave. However, under no circumstances can an employer penalize an employee for taking FMLA qualifying leave as sick leave. One very common abuse is the establishment of point-based policies which penalize employees for each unexcused absence, whether the absence is FMLA qualifying or not. These policies clearly violate the law. Recently, we successfully litigated a case against a multinational corporation with a policy which allowed for the accrual of points even for excused, FMLA qualifying absences. The company narrowly avoided a class action and was forced to pay the employee three times her yearly salary for this costly mistake. If you think your employer has violated the FMLA, contact us for a free screening to discuss your rights.

According to a recent article in USA Today, as the number of employees with elder and child care demands grows, more workers are filing lawsuits claiming they've been discriminated against on the job because of their family caregiving obligations.

The federal Equal Employment Opportunity Commission (EEOC), which recently issued its first guidance for employers about the issue, reports an "upsurge" in cases — with many resulting in awards to plaintiffs. The guidance provides examples of how bias can occur so that employers are aware of the risk.

The type of discrimination is growing so fast, it's been dubbed "family responsibilities discrimination." The Center for WorkLife Law at the University of California, which tracks these lawsuits, says such cases have risen by 400% in the last decade.

"This is on employers' radar screens," says James Matthews, a Philadelphia-based employment lawyer. "Law firms are really talking to their clients about it."

Cases usually involve an employee who must care for a child, elderly parent or disabled spouse. The employee may claim that he or she was retaliated against, not hired or discriminated against by an employer because of his or her caregiving responsibilities.

Pregnancy bias claims grow

The cases also may involve male caregivers being treated more favorably than female caregivers or gender stereotyping, such as discriminating against an employee because she is a new mother. Overall, cases claiming bias against pregnant employees filed with the EEOC have risen from 3,977 in fiscal year 1997 to 4,901 in 2006.

One recent case is an EEOC lawsuit filed in September against news and financial services company Bloomberg. The lawsuit alleges the company demoted and reduced the pay of female employees after they announced their pregnancies and after they took maternity leaves.

Some women were replaced by more junior male employees, the EEOC says. The lawsuit also alleges that the same pregnant women and new mothers were excluded from management meetings.

I recently came across a very interesting article on Carl Bosland's blog. This article discussed the recent case of Bell v. Prefix, Inc., No. 05-74311, 2007 U.S. Dist. LEXIS 52837 (E.D. Mich. July 23, 2007) where the issue of whether the FMLA covers an employee's need for leave to provide psychological comfort and care to an unconscious parent was addressed. There, Bell's father fell after suffering an aortic aneurism. He was granted FMLA leave to attend to his father's health care and hospitalization. Bell left work early to be with his father the night before surgery. He discussed the surgery with his father. He returned to visit his father after the surgery. His father fell into a coma after the surgery. He remained in the coma until his death a few weeks later. On several occasions, Bell was granted FMLA leave to visit his father. His father was at all times incoherent and unable to visibly react to Bell's words. During these visits, Bell would discuss his father's condition and care with hospital staff, including approval of care. Bell was subsequently terminated allegedly due to a downsizing of his department. He sued, alleging that his dismissal was due to his use of FMLA leave.

Prefix argued that Bell's leave was not protected by the FMLA. It argued that he did not provide physical or psychological care because his father was comatose. Under established case law, merely visiting a sick parent does not, the employer argued, constitute providing care within the meaning of the FMLA. The court disagreed.

The time Bell spent with his father was psychological care. The court rejected the argument that the failure of a parent to visibly respond demonstrates that psychological care was not given during their post-surgery interactions. "Taken to its logical conclusion, Defendant's argument would leave the FMLA without an allowance for psychological care if the loved one was unable to visibly react to it." The court also noted that Bell did provide psychological care to his father before surgery when his father was conscious. It also noted that he participated in medical decisions for his father post-surgery, which is also covered by the FMLA.

Although federal law does not specifically prohibit discrimination against those with family caregiving responsibilities, new enforcement guidance from the Equal Employment Opportunity Commission explains how existing laws prohibiting discrimination based on gender, pregnancy or disability can apply to caregivers, as well. It offers examples: denying a female worker with young children an opportunity that is available to men with young children or refusing to hire a worker who is a single parent of a child with a disability on the assumption that caregiving responsibilities will make the worker unreliable.

As a result of these guidelines, I believe that we will likely see an increase in the number of caregiver discrimination suits filed by the EEOC.

EEOC employees will be trained in how to recognize caregiver discrimination and connect it to current laws. "It really gives our people a chance to see something new," said Stuart Ishimaru, an EEOC commissioner.

First, it puts employers and employees on notice "that you cannot treat mothers and other caregivers differently based on assumptions of how they will or should behave," she said. "That's important because bias against mothers is the most open form of discrimination in the workplace today."

The guidance also shows that though discrimination against mothers is the "most common form of caregiver discrimination, it's not the only form," she said. The guidance gives examples of discrimination against adults caring for nieces, nephews, grandchildren, parents and spouses, and also states clearly that caregiver bias affects men as well as women.