When an accident left Mark with a punctured lung and broken ribs, it was 52 days
before he was able to return to his job. A few months later, Mark volunteered
for a layoff, at which time one of his former supervisors made a notation in
Mark's file that his attendance had been "poor." The basis for this rating was Mark's medical leave,
to which he had been entitled under the federal Family and Medical Leave Act
(FMLA).
When
Mark applied to be rehired almost two years later, the "poor" attendance rating came back to haunt him. When
he did not get the job, he sued, contending that the employer had discriminated
against him for having exercised his right to take medical leave. A federal
trial court dismissed the claim, agreeing with the employer that the FMLA only
protects "employees," not job applicants.
Unlike
the Americans with Disabilities Act, for example, the FMLA does not explicitly
say that it covers applicants as well as employees. A Labor Department regulation
does state, however, that it is a violation of the FMLA to discriminate against
job applicants who have taken FMLA leave. Moreover, although the FMLA section
allowing lawsuits refers only to "employees," the specific antiretaliation provision on which
Mark relied protects "any individual" engaged in protected activity.
A federal appellate court overturned the lower court and reinstated Mark's case. The language
in the FMLA was ambiguous, as "employees" could mean prospective or former employees, not
just current employees. It also helped Mark's case that the Supreme Court has
interpreted the term "employees" in another federal employment discrimination statute
to include former employees. The Labor Department's interpretation was reasonable
and in keeping with the broad overriding goal of the FMLA: to help working men
and women balance conflicting demands of work and personal life.
Preventing
Mark and others in his situation from suing under the FMLA allows employers
to evade the Act by blacklisting employees who have used leave in the past or
by refusing to hire individuals if the employers suspect they might take advantage
of the law.
