January/February 2002 Issue Number 31

Is a monthly electronic newsletter which links current events and issues to the daily challenges faced by fire and emergency services managers. Current topics in the areas of leadership development, workplace diversity, change management, and conflict resolution will be discussed.

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Leadership Training Seminar: March 8-10, 2002, San Diego Bahia Resort. Sponsored by Women in the Fire Service. For more information call 608-233-4879 or email info@wfsi.org.

 

FMLA: A Law for Men and Women Equally

When Maryland State Trooper Kevin Knussman applied for time off to care for his newborn daughter, he was told that such leave was for mothers only, and his request was denied. But a recent Fourth Circuit Court of Appeals decision has made it clear that the Family and Medical Leave Act covers both men and women, and the refusal of Maryland State Police to allow Mr. Knussman benefits under that law amounted to gender discrimination.

Mr. Knussman actually applied for paid leave under a Maryland State law that allows for up to 30 days of "nurturing" leave for the primary care giver of a newborn or adopted child. Mr. Knussman's wife had medical complications during her pregnancy and after the birth of the child. But Mr. Knussman was told that he could not qualify as a primary care giver because "fathers could not breast feed a baby" and "God made women to have babies and unless he could have a baby, there's no way he could be a primary care giver."

The Family and Medical Leave Act (FMLA) became law in 1993. It guarantees full time employees up to 12 weeks of unpaid leave a year for specified family and medical reasons. Valid reasons for leave include the birth or adoption of a child. Employers must continue to pay for the employee's health and dental insurance, and must reinstate the employee to the same job or an equivalent. The law also states that "an eligible employee may elect to substitute any of the accrued paid personal leave or family leave of the employee for leave provided under the FMLA for any part of the 12 week period of such leave."

Mr. Knussman had sued his employer for discrimination in federal district court and was awarded $375,000 by a jury in 1999. That court found that the Maryland State Police's intentional gender discrimination violated the 14th Amendment of the U.S. Constitution and the Family and Medical Leave Act of 1993. The Maryland State Police had claimed immunity from the liability, and this was rejected by the Court of Appeals. The court stated: "Government classifications drawn on the basis of gender have been viewed with suspicion for three decades... gender classifications that appear to rest on nothing more than conventional notions about the proper station in society for males and females have been declared invalid time and again by the Supreme Court."

The FMLA is gender neutral law. Men who act as care givers of children have equal access to the benefits allowed under the law.

Source: Knussman v. State of Maryland

The Supreme Court has dismissed a case that was considered to be a major challenge to existing affirmative action guidelines at the federal level. Adarand v. Mineta challenged the federal government's efforts to address a history of racial discrimination in the awarding of highway construction contracts. The court stated in its decision that the case had not established its suitability as a plaintiff to challenge the federal program. Other similar cases are likely to be argued in the Supreme Court in subsequent years.

Source: The New York Times, November 28, 2001.

Harassment Policies vs. Union Organizing

Can non-coercive union organizing constitute harassment at work? Probably not, according to a recent decision by the Fourth Circuit Court of Appeals.

The case involved employees who said that union organizers were forcing literature on them during their lunch break. They complained under a workplace harassment policy which stated, "Any unwelcome action, intended or not, which is considered offensive to the receiver or a third party may be labeled harassment." A disciplinary letter was placed in the union organizers' files.

The union organizers complained to the National Labor Relations Board that their rights had been violated, and the case ultimately went to court. Earlier this year, the Fourth Circuit ruled that union organizing is protected activity and employees cannot be disciplined for it under workplace harassment policies. Specifically, the court said that there would be nothing left of rights guaranteed under the Labor Act, if employees were subjected to discipline for exercising them.

The Labor Act does not immunize employees from disciplinary action entirely. However, in this case, the union supporters did nothing more than talk up the union with fellow employees. They did not use abusive language nor did they attempt to intimidate their co-workers in any way. They approached the other employees during non-work time, away from their work stations. Given these conditions, the court said that the fact employees "felt" harassed is not enough to impose discipline or even to investigate the matter.

This case underscores the need for organizations to write anti-harassment policies that are reasonable and enforceable. Union organizing is protected activity, under specific guidelines. Employers cannot create policies, related to harassment or anything else, that violate the laws of our country.

Source: Consolidated Diesel v. NLRB

© Linda F. Willing, 2002