HR 101: Don’t Suggest “No More Hysterectomies” to a Woman on FMLA

By Eric B. Meyer

In my years of practicing employment law, I’ve drafted several employee handbooks and Family and Medical Leave Act (FMLA) policies for employers. The policies I draft are thorough.

But just the other week, it occurred to me that I should probably add some language to the effect that supervisors should refrain from recommending the book No More Hysterectomies to any female employee who requests FMLA leave, especially to have a hysterectomy.

That recommendation would be stupider than stupid stupid. And, wouldn’t you know it, a company in Ohio appears to have managed to screw that up.

I couldn’t make this stuff up if I wanted to. Well, except for the part about the policy revision. That’s pure BS, but the screw-up is not. Details after the jump.

Plaintiff seeks FMLA, gets RIFed

I read about this case over at the fabulous FMLA Insights blog. Here are basic facts:

Plaintiff requests FMLA leave for a hysterectomy.
Plaintiff receives a disciplinary warning.
Plaintiff’s supervisor suggests that she borrow No More Hysterectomies.
Plaintiff receives a second written warning for behavior that she claims another employee, who did not take FMLA, exhibited, but for which the other employee was not disciplined.
Defendant fires plaintiff for what it claims is a reduction in force (RIF), claiming it included plaintiff in the RIF because she had two disciplinary infractions in the preceding year.
Defendant informs plaintiff that the termination is a “blessing in disguise.”

Blessing in disguise? Or viable FMLA retaliation lawsuit?

On these facts, the Court concluded that the plaintiff had presented enough facts for a jury to hear her claim for FMLA retaliation:

She was terminated during her FMLA leave, thus showing temporal proximity between the leave and the discharge. Moreover, a reasonsable jury could view Bryant’s repeated remarks to Plaintiff that it was a bad time to take leave, and her suggestion regarding the anti-hysterectomy book, as additional evidence in favor of Plaintiff’s view….The Court finds enough factual questions raised in this case regarding the legitimacy of the discipline underlying Plaintiff’s RIF score, especially the fact that another employee’s discipline in the relevant time-period was not considered in the calculation, such that a jury could find the RIF analysis flawed.”

Two takeaways for employers

My opener to this post about the FMLA policy was very tongue-in-cheek, but, believe it or not, I think some additional training could have helped here. May there have been a perfectly legitimate reason for a supervisor recommending an anti-hysterectomy book to an employee seeking FMLA for a hysterectomy? Sure, but a court is not going to determine that. That’s up to a jury. So, to avoid that altogether, remind supervisors not to editorialize employee decisions to request FMLA. Instead, just facilitate processing the request.
Another good point from the post at FMLA Insights is to ensure that discipline and RIF criteria are applied equally across the board to all employees. While exceptions can be made, generally, it is bad practice — a lawsuit invitation — to treat similarly-situated employees differently when it comes to rules infractions and discipline.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook..