Dive Brief:

• A married couple can proceed with claims that the county employing them discriminated against them by requiring the wife to use unpaid leave to care for their ill children while denying the husband's request to use accrued sick leave to cover his time out, a Texas district court has ruled (Newman, Newman v. Kerr County, No. 20-cv-00022 (W.D. Texas, Sept. 7, 2021)).
• Both a husband and wife worked for a county sheriff's office, as a jail corporal and a warrant secretary, respectively. When their children fell ill, the husband claimed he was prohibited from using sick leave, prompting the wife to complain to the sheriff. According to her testimony, the sheriff told the secretary that it was her responsibility to care for the children and if she complained again, she would be fired. She also claimed he crumpled up her written complaint and threw it at her.
• In court, the sheriff said the secretary's statements about their conversation were false, though he stated that he denied the corporal leave once because he was serving in court and there was no one to take his place. The court found the county unable to present sufficient reasoning to show that its actions were legitimate and non-retaliatory and allowed the couple to take their claims of sex discrimination to trial.

Dive Insight:

The district court's ruling moves this case forward so a trial can uncover whether the workers were subject to discrimination. Intentional discrimination could be established by proof of a number of events, the court said: that the sheriff stopped the husband from taking sick leave; that only the wife was allowed to take sick leave to care for their children; that the wife was forced to take unpaid leave when her husband had paid leave he was eligible to use; that the sheriff, as the wife claimed, threatened to fire her if she complained again.

The court acknowledged that the trial could go the other way, too. "On the other hand, proof that the sick leave policy was gender neutral and applied equally to all employees including [the husband and the wife] might defeat Plaintiffs' claims," the court said.

For employers observing this case and its evolution, it's worth noting that the claims point to something that often trips up employers: the intersection of two employment laws.

The couple claims their employer discriminated against them in violation of Title VII of the Civil Rights Act of 1964. However, Title VII has nothing to do with the leave itself — the statute prohibits employers from discriminating against workers based on several characteristics, including sex — but rather the application of it. The couple claimed it was discriminatory for the employer to force the wife to take leave and insist the husband continue working, especially in light of the wife's alleged conversation with their boss.

A more common intersection of federal employment laws occurs between the Americans with Disabilities Act and the Family and Medical Leave Act. Many workers have access to unpaid, job-protected leave under the FMLA. It grants up to 12 weeks of leave to workers who need time off to recuperate or take care of family members who are sick. Many workers are also covered by the ADA, which requires employers to make reasonable accommodations to enable people with disabilities to do their jobs.

Sometimes, FMLA leave qualifies a reasonable accommodation under the ADA. Other times, employers are compelled to grant more leave than the FMLA provides as an ADA accommodation.