Gary Ehrhard, an air traffic controller for the Federal Aviation Administration asked for Family Medical Leave Act (“FMLA”) leave to care for his children, 8 and 10 years old. Because they did not suffer from a serious health condition, he was denied FMLA leave, and he claimed that he was later retaliated against for asking for the time off.  He discovered that female air traffic controllers were allowed the kind of leave he sought. He sued the Department of Transportation (”DOT”) for sex discrimination and retaliation for complaining about alleged sex discrimination.  On March 28, 2012, the U.S. District Court for the Eastern District of New York ruled that even though there was no viable FMLA claim, the sex discrimination and retaliation claims had to go to a jury trial because these claims were broader than the FMLA request.  Ehrhard v. LaHood.

Ehrhard claimed that the DOT permitted similarly-situated female air traffic controllers to use employer-provided Leave Without Pay (“LWOP”) in an “open-ended special arrangement,” and that such arrangements were not available to Ehrhard because of his sex.  The DOT contended that the gender discrimination claim should be dismissed because Ehrhard was not entitled to FMLA leave, since his children did not have serious health conditions.  Ehrhard requested the leave because his wife was unavailable that day to care for his children.  The court ruled, however, that Ehrhard’s sex discrimination claim was “broader than an FMLA request” and that “the requirements of the FMLA are not dispositive of this claim.”  The court concluded that Ehrhard raised genuine issues of fact as to whether his request for child care was treated differently than requests by female air traffic controllers.

The DOT conceded that female employees were permitted to submit leave requests under a special procedure but Ehrhard was not, but the DOT argued that the female air traffic controllers were not similarly situated to Ehrhard, because they were previously part-time employees.  The Court reasoned that “[t]he 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.”  Accordingly, the court held the jury must decide whether female employees were “similarly situated” and treated more favorably regarding the granting of child care leave.

Ehrhard also claimed that the DOT retaliated against him after he complained that the denial of his leave requests was based on his gender.   The court found that Ehrhard produced sufficient evidence that the DOT took adverse action against him after he complained.  While the DOT argued that Ehrhard’s complaints were not reasonable, good-faith complaints about suspected sex discrimination, the court ruled that the reasonableness of Ehrhard’s belief of sex discrimination as it pertained to retaliation would have to be decided by a jury. 

It may be good practice to help employees who need special privileges, but employers should be aware that a good deed may result in litigation if the favors are not bestowed without regard to protected class status such as sex, or race, or religion or national origin.  To minimize risk and exposure from claims of illegal discrimination, employers who provide leaves of absences for child care must ensure that the leaves are available to all employees regardless of sex.  As a best practice, employers should also ensure that their child care leave of absences policies are drafted in a gender-neutral manner.