Friday, October 6, 2006
Clarification/Update: It seems from discussion of this case on the employment discrimination listserv, that it is less about FMLA leave, and more about whether the woman in question could show that the employer's policies concerning seniority have a disparate impact on women (maybe even separate and apart from preganant women as a class). The court found no cognizable disparate impact and I think Cindy Estlund on the listserv makes a strong point that the use of seniority alone should not be considered an unlawful employment practice because of the many advantages that the use of seniority brings to the workplace (including minmizing the use of arbitrary employer discretion) .
But the FMLA comments I made below still beg the question of whether time spent out on FMLA leave can be treated as true time away from work in a hypothetically similar case to this one where maternity leave was at issue. In this regard, see the helpful comment from Labor Lawyer below as to what the FMLA regulations might permit.
Thanks to Pete Lattman at the Wall Street Journal Law Blog for this "Labor Law Roundup" on some interesting and disturbing developments in European gender employment discrimination law:
Europe’s highest court ruled yesterday that women who take maternity leave forfeit the right to earn the same pay as male colleagues who are doing the same job but haven’t taken time off. The significant sexual-discrimination ruling, reports the Times of London, may redefine workplace equality in the EU. A British labor tribunal had ruled in favor of the plaintiff in the case, Bernadette Cadman, a 44-year-old health inspector from Manchester who sued after she realized she was being paid about $24,000 less a year than male colleagues who were doing the same job. But the Court of Justice reversed the decision, which means companies that pay workers based on length of service can legally disregard time taken off to have children. Here’s the ruling.
This result seems inconsistent to me with what the FMLA would require in this country. Although FMLA leave may be paid or unpaid, I am not aware of a court holding that time taken off for FMLA purposes can be substracted from an employee's seniority in order to determine the employee's appropriate wage.
For the usually employee-friendly Europeans, this is a surprising decision and one that fails to understand the importance of having workplace policies and legislation in place to support women seeking to achieve appropriate work/family balances.