The Family Medical Leave Act (FMLA) provides eligible employees with up to 12 weeks of leave to care for a new baby or a family member with a serious medical condition.  But a Boston-based attorney claims that, after used his FMLA leave to care for his wife who was suffering from serious mental illness following the birth of their baby, his career was negatively impacted.  In mid-October, in Ayanna v. Dechert LLC, the attorney's FMLA retaliation claim survived the firm's motion for summary judgment in part because when the attorney was informed that he was being let go, a firm partner stated that his "personal" issues constituted one of reasons.

 

Although the U.S. District Court for the District of Massachusetts dismissed the associate attorney's sex discrimination claim (because there was evidence that women attorneys were treated similarly badly when they returned from family care leave), it refused to dismiss the FMLA retaliation claim because of the comment made and because, despite the law firms assertion that the termination resulted from his low billable hours, unlike the plaintiff, many of the other attorneys who were let go at the same time had received warnings for low hours the previous year and there was no evidence that all attorneys with similar hours were terminated.

The lessons are clear:  when it comes to retaliation claims under the FMLA or other protective statutes: employers must beware - even one insensitive comment that could be viewed as discriminatory can sink a case.  As this happened at a legally sophisticated employer, it can happen anywhere.  All managers, supervisors and HR professionals should be trained to avoid indiscreet comments that can force employers terminating employees to defend those decisions in front of a jury.  

Another lesson for employers can't be overstated -- employers must be consistent in their application of discipline.  If other employees (especially those who have not recently returned from FMLA leave) are guilty of the same infraction, they should be subject to similar discipline or their situation must be capable of being distinguished in some meaningful way.  As always, clear, uniformly applied policies provide the best defense. 

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