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Are there risks associated with granting “special leave?"

Fair Practice: The Trouble with Special Leave

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By: Carl Moore

July 25, 2012 | Fair Practice

Let’s say you have a supervisor who is a very compassionate individual. He understands the pressures of being a working mom. He occasionally allows some of the mothers who work for him to take “special leave” to tend to their parenting duties. This leave is not used to take care of a sick child, which would be covered by the Family and Medical Leave Act (FMLA). This leave is for a day when the school is closed or there is a school play or a special soccer game. As well intentioned as this supervisor may be, a recent case pointed to a possible pitfall here.

Gary, an employee in the same agency office as the compassionate supervisor, asked 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. Gary filed an EEO complaint, pointing out that some women in the office, who were in the same kind of position he was in, had received special leave without pay (LWOP) to care for their young children. He also showed that their requests for leave were almost always granted.

While the agency 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 in the same situation as Gary. Gary's complaint also included a retaliation claim. He argued that, after he raised the gender-bias claim, agency managers were instructed to deny all of his future leave requests.

As a result of the complaint, the court denied the agency'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.”

There are a few things to keep in mind in order to avoid this type of situation in the workplace. First, “special leave” can be 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. Second, leave requests must have a clear and consistent process. The court in this case noted that the women could verbally request leave, while Gary had to put it in writing with a detailed explanation. On the surface, the situation did not seem fair which is why Gary filed his original EEO complaint.

Finally, watch out for classic retaliatory behavior. Retaliation has been the most popular employee complaint in discrimination complaints in the federal government for almost a decade. It is important that managers and supervisors understand that they must continue to manage an employee who has filed a complaint. It is also important that managers understand the common pitfalls that lead to retaliation complaints. Retaliation is the type of complaint that management is most likely to lose!

About the Author

Carl D Moore, Esq. was a senior consultant with NewPoint Strategies and a contributing author to this blog until his passing in 2013. He was also the author of TRUST: Short-Circuit the Hardwiring! – a book about EEO law and building trusting workplace relationships in order to avoid complaints, grievances, and law suits.