Can’t Buy Me Leave (Continued from page 30)
administrative remedies by filing a claim with the Equal Employment Opportu- nity Commission. Such complexities may readily be addressed, though, by filing suit under the FMLA and simultaneously fil- ing an EEOC complaint under the ADA, with the objective of amending the FMLA suit to add in the ADA claim once it has been perfected through the issuance of a 90-day “Right to Sue” letter. By coupling an FMLA claim with an ADA claim the plaintiff is able to seek both compensa- tory damages for emotional distress and punitive damages. Another avenue to more satisfactory
relief for the FMLA plaintiff lies in an exploration of the grounds for the ad- verse action taken by the employer. If the employer deprived the plaintiff of an FMLA-protected right because of a characteristic that is “suspect” under Title VII (i.e., race, color, gender, national origin, etc.) then the plaintiff ’s FMLA claim may be combined with a Title VII
claim. As with an ADA claim, a Title VII claim requires exhaustion of administra- tive remedies through an EEOC filing. However, as with an ADA claim, a “file and amend” approach may be pursued in which the FMLA suit is later amended to add a Title VII claim perfected through the issuance of an EEOC “Right to Sue” letter. It is worth noting that, particularly with leave taken in connection with the birth or adoption of a child, employers often make gender-based decisions that are vulnerable to Title VII challenges. It is also worth noting that, in the event the employer is a state agency, a Title VII filing may be avoided by bringing suit under the Equal Protection Clause of the Fourteenth Amendment and 42 U.S.C. §1983, which creates a private cause of action for the deprivation, under color of state law, of federally secured rights. An FMLA claim may also be combined with one for abusive discharge if the claimant is terminated based on a previ- ously filed workers compensation claim. All this talk of artful dodges to escape the FMLA’s failure to provide for monetary
damages begs the question of whether money will really do the trick. In other words, may a plaintiff who has been de- nied the opportunity to be present at his daughter’s birth be “made whole” with mere monetary damages? The answer to the question hinges upon matters perhaps more in the province of phi- losophy or theology than the practice of law. Nevertheless, much may be said for the argument that, if the FMLA is truly intended to enable workers to participate in the unique events of family life, both good and bad, than no amount of cash may achieve the statute’s salutary purpose. As with other statutes designed to secure fundamental rights and human happiness, monetary awards do more to deter law breakers than to aid the laws’ intended beneficiaries. Thus, the most compelling argument for amending the FMLA to allow for emotional distress damages and punitive damages is that such a change will provide a powerful deterrent of the sort commonly afforded by comparable statutes. When it comes to facilitating the actual
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goals of the FMLA, however, a far more wholesome amendment would be to provide for an administrative procedure by which leave denials could be reviewed promptly and before they became moot. Although most lawyers – rather care- lessly – call the FMLA a “leave law,” such clumsy nomenclature confuses the statute’s means with its ends. The purpose of the statute is not to give people time off from work but, rather, to enable them to participate in life’s most exigent events: birth, death, illness. While the means by which the statute enables workers to participate is by compelling their employ- ers to give them leave, the leave is not an end unto itself. Indeed, once the need, typically ephemeral, has passed, ordering that the leave to be provided retroactively is meaningless. Reform is needed for the FMLA to
achieve its goals. The statute should be amended to insure that leave is granted while it is still timely and to allow emotional distress and punitive damage awards that will deter recalcitrant employ- ers. Meanwhile, FMLA lawsuits remain worth filing, though doing so effectively calls for some craftsmanship in patch- ing together hybrid cases that combine FMLA claims with claims under other statutes that provide for adequate damage awards.
32
Trial Reporter
Winter 2007
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