Too Little Too Late If You Work for The State? The Applicability of Employee Thresholds to Age Discrimination Claims from State Workers

The Issue

Americans born in 1978 will be turning 40 this year. In addition to the wisdom that comes with age, these citizens will also be gaining the possibility of protection from age discrimination under the Age Discrimination and Employment Act (ADEA). This act prohibits employers from discriminating “against persons 40 years of age or older.29 U.S.C. §§ 621–34. According to 29 U.S.C. § 630(b), the term “employer” is defined as:

[…] a person engaged in an industry affecting commerce who has twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year․ The term also means (1) any agent of such a person, and (2) a State or political subdivision of a State and any agency or instrumentality of a State or a political subdivision of a State, and any interstate agency, but such term does not include the United States, or a corporation wholly owned by the Government of the United States. (Emphasis Added)

If the “twenty or more employees” threshold is not met, workers over 40 are ineligible for ADEA protection. The circuit courts are split on whether the 20-employee threshold only applies to persons, or whether agents of persons, and state entities are included.

The Split

The Seventh Circuit

In Kelly v. Wauconda Park Dist. (7th Cir. 1986), the Seventh Circuit ruled that government entities were encompassed by the 20-employee threshold in 29 U.S.C. § 630(b). The court utilized a two-step process in determining whether government entities had to meet the 20-employee threshold. First, the court looked at whether 29 U.S.C. § 630(b) is ambiguous. If the statute was determined to be ambiguous, then the court would analyze legislative history to guide its decision.

In the first step of the analysis, both parties made arguments about the ambiguity of the statute. Kelly made an argument that the statute excluded government entities, and Wauconda argued that government entities were included by the statute. The court concluded that the statute was ambiguous because it had two reasonable but differing interpretations.

The court then analyzed the legislative history. The lower court ruled “that ‘[t]he legislative history of the 1974 amendment, the similarities between it and a parallel amendment of Title VII, and common sense’ all favor [Wauconda’s] reading of section 630(b).” The Seventh Circuit believed that the analysis of the 1974 ADEA amendment’s history was a valid point, and that Title VII had a large number of parallels to the ADEA. Ultimately, the Seventh Circuit held that the legislative history weighed in favor of the ADEA’s 20-employee threshold applying to government entities.

Therefore, Wauconda Park District, a local government entity, was not an “employer” for ADEA purposes because it did not have the required number of employees as specified in 29 U.S.C. § 630(b).

The Sixth, Eighth, and Tenth Circuits

In EEOC v. Monclova Township (6th Cir. 1990), Palmer v. Arkansas Council On Economic Education (8th Cir. 1998), and Cink v. Grant County (10th Cir. 2015), the Sixth Circuit, Eighth Circuit, and Tenth Circuit, respectively, came to the same conclusion as the Seventh Circuit in Kelly.  Each circuit held that the 20-employee threshold applied to state entities.

The Ninth Circuit

In Guido v. Mount Lemmon Fire Dist. (9th Cir. 2017), the court held that the ADEA definition of “employer” “is deconstructed as follows: The term “employer” means [A—person] and also means (1) [B—agent of person] and (2) [C—State-affiliated entities].” Due to the division of these three categories, the “person” category is the only category of the three that is modified by the “who has twenty or more employees” clause. If this is the case, then “agents of the person” or “state-affiliated entities” would have to comply with the ADEA regardless of meeting the 20-employee threshold.

The court supports their position by claiming that the “person” category is further defined by 29 U.S.C. § 630(a) (The term “person” means one or more individuals, partnerships, associations, labor organizations, corporations, business trusts, legal representatives, or any organized groups of persons), and is narrowed by the “engaged in an industry affecting commerce who has twenty or more employees for each working day” clause. The court also claims that the “state-affiliated entities” category is further defined by “the various types of State-affiliated entities covered, such as a ‘political subdivision of a State’.”

The Equal Employment Opportunity Commission (EEOC) supports the Ninth Circuit’s holding. The EEOC states that when Title VII was amended, Congress was able “to apply clarifying language across multiple definitions of a term.” The clarifying language in question applied to “States and State-related entities, including political subdivisions of a State.” 42 U.S.C. § 2000e. The EEOC believed that Congress could have applied similar language to 29 U.S.C. § 630(b) if it had wanted to, but that Congress chose not to.

The ninth circuit ultimately held that “a political subdivision of a State need not have twenty or more employees in order to qualify as an employer subject to the requirements of the ADEA.”

Looking Forward

Based on the holdings from the various circuits, a state entity may or may not be considered an “employer” under the ADEA’s 20-employee threshold. On February 26, 2018, the Supreme Court granted certiorari to hear the case of Guido v. Mount Lemmon Fire Dist. Thus, the issue may be resolved soon.

For further reading, see what Squire Patton Boggs has to say on the topic.

Are We Done Yet ?… The Investigation That Never Ends.

The Issue

Does the EEOC have investigative authority to subpoena employers for information after the EEOC has issued an employee a right-to-sue letter? What about after a court has already entered a judgment on the merits in favor of the employer? The Seventh Circuit says yes. 

The EEOC… What Now?

The Equal Employment Opportunity Commission (EEOC) is an agency that was created by Congress under the Civil Rights Act of 1964. The purpose of the agency is to serve the public interest by enforcing the provisions of Title VII of the Civil Rights Act and other non-discriminatory legislation in the workplace context. Under the Equal Employment Opportunity Act of 1972, the EEOC’s power was magnified to include enforcement through the courts, longer periods of time for administration, and conciliation of charges. Further, Section 706 of this Act lays out the procedures and timing guidelines for claims filed with the agency.

First, an aggrieved employee may file a charge with the EEOC. Thereafter, the agency investigates the claim against the employer. This investigation could include a subpoena for relevant information and ultimately lead to a lawsuit filed by the agency itself. The charging employee has the option to allow the charge to be resolved by the EEOC or to obtain a right-to-sue letter from the EEOC, which is necessary to file a lawsuit in federal court (excluding charges under the Age Discrimination in Employment Act).

The Split

The Seventh Circuit joins the Ninth Circuit in holding that the EEOC has the administrative authority to investigate possible discrimination independent of the employee’s cause of action. In EEOC v. Union Pac. R.R (2017), the Seventh Circuit upheld the EEOC’s ability to continue investigating an employer after issuing a right-to-sue notice to an employee and after the dismissal of the employees’ subsequent civil lawsuit on the merits. The court reasoned that ruling otherwise would erroneously undermine the EEOC’s authority as “merely derivative” of the employee’s right to sue, which would be contrary to the holding of the Supreme Court in EEOC v. Waffle House (2002).

In EEOC v. Fed. Express Corp. (2008), the Ninth Circuit held that the issuance of a right-to-sue letter does not strip the EEOC of authority to continue to process the charge, including an independent investigation of allegations of discrimination on a company-wide basis. They reasoned that “the EEOC’s right of action is independent of the employee’s private action rights” and further that “it is the [EEOC]’s province–not that of the court–to determine whether public resources should be committed” to the continuing investigation of a charge.

However, in EEOC v. Hearst (1997), the Fifth Circuit held that the EEOC “may not continue an administrative investigation based upon an individual’s charge once the charging party has been issued a right to sue letter and has initiated litigation based upon that charge.” They reasoned the time for investigation passes after litigation has commenced.

Looking Forward

The Seventh Circuit’s opinion largely aligned with the US Supreme Court’s holding in EEOC v. Waffle House (2002).  The Supreme Court reasoned that “[t]he statute clearly makes the EEOC the master of its case and confers on the agency the authority to evaluate the strength of the public interest at stake.”

Following the Seventh Circuit’s decision, the EEOC’s investigative authority could be challenged in other circuits and present an opportunity for the Supreme Court to rule on this issue. In particular, the issue of whether a valid, final judgment on the merits presents enough discovered information on the employer’s practices would be a different issue from that of Waffle House. The Supreme Court of the United States may need to more definitively rule on this issue for uniformity of the law across circuits.

A Taxing Dilemma: Whether Gross Ups are Permitted for Title VII Back Pay Awards

When an employee sues his or her employer in a Title VII action, the employee may be awarded a lump sum as back pay. That lump sum can cause a tax problem for the employee, who may be pushed into a higher tax bracket and therefore owe more in taxes than he or she would have owed if the employer had made the payments over time. Some appellate courts have allowed federal district courts the discretion to award a tax consequence adjustment, or “gross up,” for receipt of a lump sum back pay award to offset this consequence and make the employee whole. The Ninth Circuit recently joined the Third, Seventh, Ninth, and Tenth Circuits by allowing gross ups, furthering the split with the D.C. Circuit.

The Split

 In a brief opinion, the D.C. Circuit rejected the possibility of gross ups in Danshaw v. Pena (1994), abrogated on other grounds by Rann v. Chao (2003):

We know of no authority for such relief…Given the complete lack of support in existing case law for tax gross ups, we decline so to extend the law in this case.

The Third, Seventh, Ninth, and Tenth Circuits disagree and allow district courts to award a gross up. The core of their viewpoint is that gross ups are necessary to make the plaintiff whole. Without any tax consequence adjustment, the plaintiff is still damaged by the employment discrimination. In its recent opinion joining these other Circuits, the Ninth Circuit described this position in Clemens v. CenturyLink Inc. (2017). It emphasized that Title VII exists “to make persons whole for injuries suffered on account of unlawful employment discrimination” and “provides courts with considerable equitable discretion to ensure adequate compensation.” The Ninth Circuit followed the Seventh Circuit’s opinion in EEOC v. N. Star Hosp., Inc. (2015) by citing Title VII as the source of courts’ authority to award back pay gross ups. There, the Seventh Circuit agreed with the Third and Tenth Circuits that “without the tax-component award, [the plaintiff] will not be made whole, a result that offends Title VII’s remedial scheme.”

In Eshelman v. Agere Sys. Inc. (2009), the Third Circuit noted that the decision of whether to award a gross up is within the discretion of the trial court:

[W]e do not suggest that a prevailing plaintiff in discrimination cases is presumptively entitled to an additional award to offset tax consequences above the amount to which she would otherwise be entitled. Employees will continue to bear the burden to show the extent of the injury they have suffered. The nature and amount of relief needed to make an aggrieved party whole necessarily varies from case to case.

While these four Circuits find that Title VII commands the possibility of gross ups to make a plaintiff whole, they do not find that plaintiffs are automatically entitled to the adjustment. While the D.C. Circuit categorically rejects gross ups, even in those courts that permit the possibility of gross ups, whether a plaintiff may receive a gross up, and how much of an adjustment is made, will depend on the particular case.

Looking Forward

Gross ups in awards for back pay in Title VII cases are ripe for Supreme Court review.  SCOTUS may want to settle (1) whether gross ups are permitted at all, and (2), if they are, what factors a district court should consider when exercising its discretion to make a determination in a particular case. In allowing the possibility of gross ups, the Third Circuit in Eshelman noted that a prevailing plaintiff is not automatically entitled to a gross up; the relief required to make an employee whole will inexorably vary depending on the case. The Ninth Circuit in Clemens suggested that difficulty in determining the proper gross up or negligibility of amount may be such factors that would make a gross up inappropriate, but it may be helpful to establish a set of criteria for district courts to use in their review.

The Demise of “married Sunday, fired Monday”: Sexual Orientation Discrimination in Title VII

The Issue

In June 2015, the Supreme Court held in Obergefell v. Hodges that states must license and recognize same-sex marriages under the Due Process Clause of the Fourteenth Amendment.  While this historic decision opened the chapel doors for same-sex couples, the LGBT community still faces discrimination in other arenas, including employment. Does discrimination based on an employee’s sexual orientation fall under the prohibition of sex discrimination in Title VII of the 1964 Civil Rights Act? Overturning circuit precedent, the Seventh Circuit says yes. The Seventh Circuit is the first to rule in favor of expanding the meaning of discrimination on the basis of sex to include sexual orientation, and is therefore at odds with its sister circuits.

Title VII and Sex Discrimination Cases

Title VII of the Civil Rights Act of 1964 states that an employer subject to the Act cannot discriminate in hiring practices or against employees on the basis of “race, color, religion, sex, or national origin.”  While the Supreme Court has not directly weighed in on whether this statute bans discrimination based on sexual orientation, the Court has previously interpreted the meaning of sex for Title VII purposes. In Price Waterhouse v. Hopkins (1989), the Supreme Court held that discrimination against an employee because he or she does not conform to gender stereotypes is prohibited. In Price Waterhouse, a female senior manager claimed her employer discriminated against her when the firm held her candidacy for a partnership position and failed to propose her for the position because she expressed more masculine attributes in her dress, hair, and personality. In Oncale v. Sundowner Offshore Servs. Inc. (1998), the Supreme Court again expanded sex discrimination under Title VII, holding that the sex of a harasser is immaterial to whether there was sex discrimination. Courts have used these cases to both support and undermine the inclusion of sexual orientation discrimination within Title VII.

The Split

The most recent circuit spilt on this issue is between the Seventh and Eleventh Circuit. In Hively v. Ivy Tech Cmty. College of Ind. (2017), a former part-time professor alleged discrimination under Title VII for her unsuccessful applications for a full-time position as well as the school’s failure to renew her part-time contract in 2014 because she is a lesbian. The Seventh Circuit, in an en banc decision, held that Hively’s claim fits within the interpretation of sex discrimination of Title VII because it is based on assumptions about the proper behavior for someone of a given sex.

The discriminatory behavior does not exist without taking the victim’s biological sex into account. Any discomfort, disapproval, or job decision based on the fact that the complainant- woman or man – dresses differently, speaks differently, or dates or marries a same-sex partner, is a reaction purely and simply based on sex.

The court made this determination by using a comparative method of analysis wherein it isolated the significance of the plaintiff’s sex in the employer’s decision and changed only that variable. Examining the situation if all the circumstances were the held the same, including the sex of her partner, and only Hively’s gender was changed, the court stated that “Hively represents the ultimate case of failure to conform to the female stereotype.” The Seventh Circuit also referred to the Supreme Court’s decision in Loving v. Virginia (1967) which held that discrimination because of the race with whom a person associates is a form of racial discrimination, to support its decision under an associational theory.

In Evans v. Ga. Reg’l Hosp. (2017), the Eleventh Circuit dismissed the plaintiff’s sexual orientation discrimination claim as such discrimination is not prohibited by Title VII. The court stated that it was required to follow its precedent in Blum v. Gulf Oil Corp. (1979) that “discharge for homosexuality is not prohibited by the Title VII”, unless the ruling is overruled either by the Supreme Court or the Eleventh Circuit sitting en banc. Rejecting the argument by the plaintiff that the Supreme Court decisions of Price Waterhouse (1989) and Oncale (1998) supported encompassing sexual orientation into sex discrimination, the court stated that these decisions were not clearly on point.

Looking Towards the Supreme Court

In September 2017, the Second Circuit sitting en banc heard oral arguments for Zarda v. Altitude Express, a case regarding this very question. The Equal Employment Opportunity Commission (EEOC) and the Department of Justice both filed amicus briefs. In rare fashion, these two government agencies have opposite positions. In 2015, the EEOC announced that sex discrimination in Title VII includes discrimination based on sexual orientation. The Trump Administration and Department of Justice argue that because Title VII does not define the word sex, it must be taken in its common meaning to mean biologically male or female and, therefore, the law does not encompass discrimination based on sexual orientation. The brief further states that Congress has had ample time and opportunity to add sexual orientation discrimination into the legislation and has chosen not to. The split and opposing opinions present compelling reasons for the Supreme Court to take on the issue in the coming years. It may even be sooner rather than later, as LGBT advocacy group, Lambda Legal, has filed a petition for a writ of certiorari with the Supreme Court to appeal Evans.

 

The Boys Are Back In Town: Now, What to do with the Women?

The end of WWII laid out some problems for America: now that the boys were back, was there any use for working girls? Despite the fact that women were qualified for the positions they’d held during the war, most were let go in order to make room for men in the labor market.

In these “reduction-in-force” discrimination suits, a plaintiff must establishes a prima facie case by showing:

  1. They belonged to a protected group,
  2. The employer discharged them,
  3. They were qualified for the position
  4. There exists evidence from which a fact finder could reasonably conclude that the employer intended to discriminate.

However, the Courts are still split on one issue:

In order to show that they were qualified, does a plaintiff have to establish that they satisfactorily lived up to the “reasonable expectations” of the employer, or do they have to simply show that they satisfied the basic requirements of eligibility?

The Split

The 7th

The Seventh Circuit, in Coco v. Elmwood Care, Inc. (1997), held that a plaintiff must prove that they met the “legitimate expectations” of their employer. In cases such as this, where there is no direct evidence of discrimination occurring, the burden of proof lies on the plaintiff to show that there is a genuine issue of material fact.

Plaintiff here, Coco, was a maintenance supervisor in a nursing home. His regular responsibilities included documenting safety and maintenance problems in his weekly reports, taking care of getting these problems fixed, and conducting fire and other safety drills. His employer, Elmwood Care, Inc. claims that Coco showed deficiencies in his work, not because of his age. The court agrees that defendant’s reasons aren’t entirely credible. However, plaintiff did not meet the threshold requirement presenting evidence of his work, thus barring the defendant from having to present, in court, reasons for his termination.

The district court here granted summary judgment for the defendant on the grounds that the plaintiff had failed to fulfill his burden of proof. The court stressed the importance of this requirement as evidence for a plaintiff’s fulfillment of “legitimate expectations” rests on “demonstrating the existence of a genuine issue of material fact.” Without any proof that the discharge was could not have been a result of the actual work he was doing, there is no way to prove discrimination. The court operates under certain preconditions:

  • plaintiff must be a member of a protected class, and if they are not then they cannot have been discriminated against, and
  • plaintiff must show they lived up to the legitimate expectations of their employer, otherwise they cannot show they wouldn’t have been fired without discrimination.

The 8th

42 U.S. Code § 1981 states that all persons will have the same rights and privileges enjoyed by white citizens in every state and territory and shall be subject to the same punishments and taxes, etc.

The Eighth Circuit held in Arnold v. Nursing and Rehabilitation Center at Good Shepherd, LLC, (2006) that the lower court ruling raised the standard set by the Supreme Court in order to show qualification.

Brenda Arnold, an African-American licensed practical nurse, worked at Good Shepherd. A resident accused her of verbal abuse, leading to an internal investigation by Good Shepherd. Subsequently, she was fired. A later investigation by the State of Arkansas concluded that there had been no verbal abuse, after which Arnold brought suit against Good Shepherd for violating 42 U.S. Code § 1981. The statute states that all persons will have the same rights and privileges enjoyed by white citizens in every state and territory and shall be subject to the same punishments and taxes, etc.

Arnold’s qualifications spoke for themselves: she was a licensed practical nurse and had served for almost a year before she was let go.

Though the Eighth Circuit Court did ultimately affirm the lower court’s ruling, the decision’s explanation for the term ‘qualification’ led to a split in the circuit courts.

Why It’s Important

Employment discrimination is never straightforward. Employees have an increasingly difficult time winning cases against their employers, and a split in the circuit court system allows for one region to function with a different set of rules. The threshold is lower for the Eighth Circuit Court, leaving plaintiffs in the Seventh Circuit at a disadvantage.

Furthermore, when an employee is forced to prove that they had fulfilled the “legitimate expectations” of their employers, it is difficult for them to quantify what their employer’s expectations were and if they managed to live up to them.

Looking Forward

 The threshold for qualifications must be universal in all circuit courts. The split in circuit courts here makes it difficult for lower courts to make a decision that doesn’t place plaintiffs at a disadvantage, and it is necessary for SCOTUS to grant a writ in order to resolve this inconsistency in the law.

 

 

 

 

Does Similar Mean Identical?  The Meaning of “Similarly Situated” in Employment Discrimination Cases

The Setting

In most employment discrimination cases, the employee alleging discrimination against his employer must show that he was treated differently from similarly situated employees because of his protected class (i.e., his race, gender, sex, religion, age, disability, etc.).

What does “similar” mean though?

The Split

The Fifth

The Fifth Circuit held in Perez v. Texas Dept. of Criminal Justice (2004), that “the jury must find the employees’ circumstances nearly identical in order to find them similarly situated.”

In this case, Perez alleged the Texas Department of Criminal Justice (TDCJ) fired him because of his race.  Perez had been arrested and charged with felony assault after he allegedly stabbed a former TDCJ inmate while off-duty at a bar.  He refused to answer TDCJ’s questions about the incident at the advice of counsel.  Perez was subsequently fired for engaging in conduct that jeopardized TDCJ’s integrity.  Perez showed that two other, non-Hispanic employees, who had respectively committed involuntary manslaughter and drunken assault, had not been fired.

The lower court instructed the jury that “similarly situated” means “the quantity and quality of the other employees’ misconduct must be of comparable seriousness to the misconduct of the plaintiff.” The Fifth Circuit found this erroneous because it “suggested that comparably serious misconduct was by itself enough to make employees similarly situated.”  Instead, the court set its hat on a stricter standard of proof, and held that “similarly situated” means “nearly identical.”

TDCJ had distinguished Perez’s conduct from that of other felonious employees because Perez’s alleged victim was a former inmate, whereas the other victims were unaffiliated with TDCJ.  The court found that this sufficiently threw Perez out of “nearly identical” territory, vacated the lower court’s judgment, and remanded the case for further proceedings consistent with this higher standard.

The Seventh

The Seventh Circuit, on the other hand, rejected this narrow interpretation in Ezell v. Potter (2005) and held that “the other employees must have engaged in similar–not identical–conduct to qualify as similarly situated.”   In this case, Wright, an African-American woman, fired Ezell, an over-50, Caucasian letter carrier for taking an unauthorized extended lunch break.  Ezell claimed that because Wright had made derogatory comments about white people, older letter carriers, and men, the reason for his termination was pretext.

The lower court interpreted “similarly situated” to mean that Ezell “must produce a non-Caucasian employee who committed exactly the same infraction and was treated more favorably.”

The Seventh Circuit took issue with this narrow interpretation and found, essentially, that “similar” means “similar” and not “identical.”

Under this broader approach, the court found that Ezell had sufficiently supported his race and sex claims to survive summary judgment because Wright had not herself been fired for falsifying records and because Wright had not fired an African-American man for losing a piece of certified mail.  The court found that these offenses were “very similar” to Ezell’s conduct.  The court also found that Wright sufficiently supported his age claim for summary judgment purposes because he alleged that Wright and her co-supervisor had a plan to fire and replace older letter carriers with younger, faster letter carriers.

The Significance

Employment discrimination is notoriously difficult to prove because it involves a lot of “he said, she said” evidence.  Further, the employee usually is unable to support his or her contentions with documentation in the same way that organized employers are able due to their required and established procedures.  This puts employees at a disadvantage in the conflict.

One way of proving discrimination is by showing that similarly situated employees were treated more favorably.  These allegations usually rely on the alleging employee’s word, but can be supported by documentation from the employer.  This helps level, to some degree, the disadvantage noted in the preceding paragraph by using the employer’s own documentation against it.  However, courts in agreement with the Fifth Circuit’s “nearly identical” ruling, raise the bar even higher for employees alleging discrimination.

Looking Forward

It is standard that alleging parties have the burden of proof.  Nonetheless, it is time for SCOTUS to decide whether similar means similar or whether similar means nearly identical.  Resolving this dispute has implications on the degree to which employees are burdened in an already uneven playing field.

I’ll Be There For You . . . (If I Can Take Off Work): Courts Are Divided Over What “Caring For” Means Under the FMLA

The Family and Medical Leave Act

The Family and Medical Leave Act (FMLA) is a federal act enacted in 1993, ostensibly to encourage a work-family balance.

Under the FMLA, eligible employees are entitled to take up to twelve weeks of unpaid, job-protected leave for various family and medical reasons. Acceptable reasons for leave under the FMLA include: a serious health condition of the employee themselves, the birth of a child and/or to care for a newborn, the adoption of a child, and to care for the employee’s child, spouse, or parent who has a serious health condition.

The issue of what precisely constitutes “caring” for a family member is interpreted differently by various courts and, thus, the subject of this post.

The Split

A Broad Definition of Care

 In 2014, the Seventh Circuit Court was challenged to determine what exactly qualifies as “caring” for a family member under the FMLA. Ballard v. Chi. Park Dist.  (7th Cir. 2014).

In Ballard, the plaintiff-appellee, Beverly Ballard provided daily care of her mother, who suffered from end-stage congestive heart failure.  She received a grant to take her mother on a vacation to Las Vegas, something her mother wanted to do before she died. Ballard requested leave from Park District, her employer, in order to travel with her mother. Her request was denied.  She was later terminated for the absences she accumulated during her trip.

During the trip, Ballard provided basic medical, hygienic, and nutritional needs for her mother. She also took her to the hospital to receive pain medicine and insulin when they suffered a loss of this medicine due a fire at their hotel.

Despite her employer’s protests that routine care was not covered by the FMLA, the court held that:

[A]s 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. Furthermore, none of the cases explain why certain services provided to a family member at home should be considered “care,” but those same services provided away from home should not be. Again, we see no basis for that distinction in either the statute or the regulations.

The Seventh Circuit’s holding, in essence, states the FMLA applies even when the employee accompanies the sick relative out of state—so long as the employee provides basic medical, nutritional, or hygienic care to the sick relative, the FMLA’s protections kick-in.

The Seventh circuit holding in Ballard directly contradicts the holdings of the First and Ninth Circuits, which determined that “care” for a family member had to be related to ongoing medical treatment.

A Strict Definition of Care

In the First Circuit, the court held that an employee who took leave to accompany her sick husband on a “healing pilgrimage” to the Philippines did not take a valid leave under the FMLA.  Tayag v. Lahey Clinic Hosp., Inc., (1st Cir. 2011).

Similarly, the Ninth Circuit held that an employee who flew cross-country to pick up a car and drive it back to his pregnant wife did not constitute valid leave under the FMLA. Because the care did not constitute the requisite  “level of participation in ongoing treatment of that condition,” the leave was invalid. Tellis v. Alaska Airlines, Inc., (9th Cir. 2005).

Looking Forward

This split is especially significant for employers, who should be aware of how the various circuits define “caring for” a family member. If the circuit uses a broad definition of care, in which the court examines the particular actions the employee took, then the employer opens themselves up to liability if they deny leave and take adverse action against an employee that then takes the leave anyway. For employees, the split is important to the extent that rights to unpaid leave under the FMLA depend on the federal circuit in which they work.

For further reading on the topic, see the University of Cincinnati Law Review or the employment law blog of Outten & Golden, LLP.