Friday, October 6, 2006

European Court Finds No Discrimination Against Low-Seniority Female Employees

Workingmother_3Clarification/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.


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What is the effect, if any, of 29 C.F.R. 825.215(d)(2)?

"An employee may, but is not entitled to, accrue any additional benefits or seniority during unpaid FMLA leave. Benefits accrued at the time leave began, however, (e.g., paid vacation, sick or personal leave to the extent not substituted for FMLA leave) must be available to an employee upon return from leave."

Had the defendant-employer included time spent on FMLA leave when calculating the seniority of other employees who took their FMLA leave for a condition other than pregnancy?

Posted by: Labor Lawyer | Oct 6, 2006 9:55:52 AM

That regulation would seem to conflict, potentially with Section 105(a)(1) of the FMLA, which provides that "It shall be unlawful for an employer to interfere with, restrain, or deny the exercise of or attempt to exercise, any right" under the FMLA. It seems certainly that treating FMLA leave differently would violate that provision, but the provision also has a potentially broader meaning. As Marty Malin argued in "Interference with the Right to Leave under the Family Medical Leave Act," 7 Emp. Rts. Emp. Pol'y J. 329 (2003), that language sounds a lot like section 8(a)(1) of the NLRA. And the standard under 8(a)(1) looks to the effect of the employer action and whether that would interfere with the employee exercise of rights. Here, it seems that a good argument could be made even if all leave were treated the same way that not allowing employees to accrue seniority would deter people from taking FMLA leave and so would interfere with their exercise of their rights under it.

Posted by: Marcia McCormick | Oct 6, 2006 8:07:09 PM

Section 105(a)(1) prohibits "interfer[ence]" and "restraint." As we know from the NLRA, those terms are amibiguous when faced with a factual context involving competing employer and employee interests. In my opinion, Section 105(a)(1) does not clearly resolve whether it is unlawful to decline to count FMLA leave when calculating an employee's seniority. In short, under Chevron's first step, the statute does not clearly answer the question. The DOL, the agency administering the FMLA, looked at this situation and promulgated a regulation under which it is not "interference" or "restraint" to calculate seniority without counting FMLA leave. I think that this is a reasonable interpretation of the statute, given the purposes of seniority (e.g., measuring experience in a job).

Reasonable arguments exist to interpret Section 105(a)(1) differently and treat such action as interference or restraint. Those arguments should be made to the administering agency interpreting the ambiguous statute. I think that it is unlikely that a court would find that the DOL's regulation exceeded its statutory authority under Chevron's second step.

Posted by: Labor Lawyer | Oct 9, 2006 1:51:11 PM

Does the state of California have any laws that pertain to seniority in the workplace? I have been told that unless you are an employee working under a collective agreement (read union) you have no rights.

Posted by: majorglory | Jun 6, 2008 5:01:46 PM

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