U.S. Supreme Court
U.S. Supreme Court

Over the last week or so, there have been two prominent Circuit Court decisions addressing whether Title VII (the federal law prohibiting employment discrimination on the basis of race, color, sex, religion and national origin) can be interpreted to also protect employees from being discriminated against because of their sexual orientation.

The Second Circuit, which covers Connecticut, basically said no in a decision last week in Christiansen v. Omnicom Group.  The court did open the door a bit to a claim that an employee was discriminated against because of sex stereotyping.

Yesterday, the Seventh Circuit created the first split at the appellate level, finding that Title VII does cover such claims in the Hivley v. Ivy Tech Community College case.   Jon Hyman, of the Ohio Employer’s Law Blog, does a good job addressing the historic nature of the case here.

Back in 2016, I wrote that it was somewhat disappointing that we were still having these battles at the federal level, considering that Connecticut already had state laws prohibiting discrimination on the basis of sexual orientation.  “Those who are gay, lesbian, bisexual or transgender frankly deserve better, in my view. They deserve their own federal law giving them the workplace protections that Connecticut has given.  Until then, the battles over the scope of Title VII will continue.”

Indeed, the battles are now going to get bigger. One or more of these cases are now likely to get heard at the U.S. Supreme Court level where it is far from certain whether Title VII can really be read so broadly.

Of course, Congress could end these debates once and for all by passing a bill prohibiting employment discrimination on the basis of sexual orientation as I discussed way back in 2008.

But unfortunately, we seem to be no closer to passage of a bill than we were a decade ago.

Connecticut employers should largely ignore the press reports about Title VII and instead focus on their obligations to comply with state law.  Eventually the federal courts will work these issues out, but the issue is mainly moot in Connecticut.

Are you willing to bet that your FMLA practices are in compliance with the law? One company recently found out that not all trips to Las Vegas are created equal.  My colleague, Peter Murphy, has this post today that reminds employers that FMLA leave can come in all shapes and sizes. Although the case arises outside of Connecticut, the facts and analysis may be applied by other courts here in the jurisdiction. 

It has become a cliche to repeat the slogan “What happens in Vegas stays in Vegas.”

And yet another case reminds us that slogans don’t always match with reality when employees travel to Las Vegas.

Now, we’re not talking employee misconduct on business travel — though that can certainly lead to trouble too.

But suppose an employee travels to Las Vegas while on FMLA leave for a sick family member.  What then? A new case from the Seventh Circuit (Ballard v. Chicago Park District) recently tackled the issue and let’s just say that the employer didn’t have much luck in its gamble to get its decision upheld.

In Ballard, the employee’s mother was terminally ill with cancer, and she lived with the employee. Similar to the Make-A-Wish foundation, the mother received money from a charitable organization to make a final, end-of-life trip to Las Vegas.  But because the mother was sick, the employee needed to accompany her mother.

Remember that the FMLA provides an employee with the ability to take leave “in order to care for the . . . parent of the employee, if such . . . parent has a serious health condition.” The mother had a serious health condition, and the employee had taken intermittent FMLA leave previously to care for her mother.

In this instance, the company denied this leave request, however, and ultimately fired the employee for her absences. In the subsequent lawsuit, the parties disputed how the FMLA applies when an employee travels with a sick family member.

The Seventh Circuit rejected the company’s argument that there was a geographic limitation in this part of the FMLA:

 . . . the FMLA’s text does not restrict care to a particular place or geographic location. For instance, it does not say that an employee is entitled to time off ‘to care at home for’ a family member. The only limitation it places on care is that the family member must have a serious health condition. We are reluctant, without good reason, to read in another limitation that Congress has not provided.”

The Seventh Circuit also rejected the company’s argument that the employee must provide some sort of treatment to the parent while traveling in order for that travel to constitute “care” of the parent, concluding:

. . . so long as the employee attends to a family member’s basic medical, hygienic, or nutritional needs, that employee is caring for the family member, even if that care is not part of ongoing treatment of the condition.

What’s notable, however, is that this decision appears to be creating a bit of a split with some other circuits — particularly rulings from the First and Ninth Circuits that held that “caring for” requires some level of participation in the ongoing treatment of the employee’s family member.

The takeaway for employers? FMLA leave requests can present difficulty for employers, especially when addressing intermittent leave for family members. Each case presents its own challenges and as this case demonstrates, even a trip to Vegas may be allowed under some circumstances.

It’s easy to be flippant about these things but employers should treat all requests and also ask how the request will look in hindsight.  When an employee requests time to spend with a terminally ill parent, that request is going to be viewed differently 18 months later when the employee is fired and the parent is dead.