The Essential Guide to Family & Medical Leave

260 | the essential guide to family and medical leave
white employees to take foreseeable leave on short notice while requiring
nonwhite employees to provide 30 days’ notice, that would violate Title VII.
In this type of situation, the employer is using the FMLA as a vehicle for
discrimination.
Overlap may also occur when an employee takes FMLA leave for
pregnancy and childbirth. Courts have interpreted Title VII’s prohibition on
pregnancy discrimination to require employers to treat pregnant employees
just as they treat other workers who are temporarily disabled by other
conditions. This means that you cannot treat employees who take FMLA
leave for pregnancy any differently from other employees who use the
FMLA, and you might have to provide time off to a pregnant employee who
isn’t eligible for FMLA leave (because, for example, she hasn’t worked enough
hours in the past year) if you provide such time off to employees with other
types of short-term disabilities.
Parenting and caretaking leave are another potential source of overlap.
This issue typically arises when a male employee wants to take parental leave
or leave to care for a seriously ill family member. Even in this day and age,
some employers still expect women to be the primary parents and caretakers.
However, denying a man FMLA leave based on these expectations not only
violates the FMLA; it’s also gender discrimination, prohibited by Title VII.
Example: Connor is an employee at your company. He and his wife, who does
volunteer work for a local nonprofit, have a young son who has leukemia. Connor
asks to work a reduced schedule while his son undergoes treatment that is expected
to leave him fatigued, ill, and unable to care for himself. You respond: “Connor, I’m
so sorry to hear about your son, but isn’t your wife available to take care of him? We
could really use you around here, and if she puts her volunteer work on hold, your
family won’t lose part of your salary. I’m sure he’ll want his mother at a time like this.”
Oops. It’s not an employer’s right to tell employees how to manage their private
lives—including which parent should be the primary caretaker, whose job is more
important to the family, and so on. If you denied FMLA leave to Connor because
you think his wife should take care of their son, your company might well be facing a
lawsuit for violating both the FMLA and Title VII’s prohibition on sex discrimination.