Categories: Retail

by Peter M. Panken and Jennifer A. Goldman

Gary Ehrhard, an air traffic controller for the Federal Aviation Administration asked for Family Medical Leave Act (“FMLA”) leave to care for his children, 8 and 10 years old. Because they did not suffer from a serious health condition, he was denied FMLA leave, and he claimed that he was later retaliated against for asking for the time off.  He discovered that female air traffic controllers were allowed the kind of leave he sought. He sued the Department of Transportation (”DOT”) for sex discrimination and retaliation for complaining about alleged sex discrimination.  On March 28, 2012, the U.S. District Court for the Eastern District of New York ruled that even though there was no viable FMLA claim, the sex discrimination and retaliation claims had to go to a jury trial because these claims were broader than the FMLA request.  Ehrhard v. LaHood.

Ehrhard claimed that the DOT permitted similarly-situated female air traffic controllers to use employer-provided Leave Without Pay (“LWOP”) in an “open-ended special arrangement,” and that such arrangements were not available to Ehrhard because of his sex.  The DOT contended that the gender discrimination claim should be dismissed because Ehrhard was not entitled to FMLA leave, since his children did not have serious health conditions.  Ehrhard requested the leave because his wife was unavailable that day to care for his children.  The court ruled, however, that Ehrhard’s sex discrimination claim was “broader than an FMLA request” and that “the requirements of the FMLA are not dispositive of this claim.”  The court concluded that Ehrhard raised genuine issues of fact as to whether his request for child care was treated differently than requests by female air traffic controllers.

The DOT conceded that female employees were permitted to submit leave requests under a special procedure but Ehrhard was not, but the DOT argued that the female air traffic controllers were not similarly situated to Ehrhard, because they were previously part-time employees.  The Court reasoned that “[t]he law does not require the employees to be similarly situated in all respects, but rather requires that they be similarly situated in all material respects.”  Accordingly, the court held the jury must decide whether female employees were “similarly situated” and treated more favorably regarding the granting of child care leave.

Ehrhard also claimed that the DOT retaliated against him after he complained that the denial of his leave requests was based on his gender.   The court found that Ehrhard produced sufficient evidence that the DOT took adverse action against him after he complained.  While the DOT argued that Ehrhard’s complaints were not reasonable, good-faith complaints about suspected sex discrimination, the court ruled that the reasonableness of Ehrhard’s belief of sex discrimination as it pertained to retaliation would have to be decided by a jury.

It may be good practice to help employees who need special privileges, but employers should be aware that a good deed may result in litigation if the favors are not bestowed without regard to protected class status such as sex, or race, or religion or national origin.  To minimize risk and exposure from claims of illegal discrimination, employers who provide leaves of absences for child care must ensure that the leaves are available to all employees regardless of sex.  As a best practice, employers should also ensure that their child care leave of absences policies are drafted in a gender-neutral manner.

Back to Workforce Bulletin Blog

Search This Blog

Blog Editors

Related Services



Jump to Page


Sign up to receive an email notification when new Workforce Bulletin posts are published:

Privacy Preference Center

When you visit any website, it may store or retrieve information on your browser, mostly in the form of cookies. This information might be about you, your preferences or your device and is mostly used to make the site work as you expect it to. The information does not usually directly identify you, but it can give you a more personalized web experience. Because we respect your right to privacy, you can choose not to allow some types of cookies. Click on the different category headings to find out more and change our default settings. However, blocking some types of cookies may impact your experience of the site and the services we are able to offer.

Strictly Necessary Cookies

These cookies are necessary for the website to function and cannot be switched off in our systems. They are usually only set in response to actions made by you which amount to a request for services, such as setting your privacy preferences, logging in or filling in forms. You can set your browser to block or alert you about these cookies, but some parts of the site will not then work. These cookies do not store any personally identifiable information.

Performance Cookies

These cookies allow us to count visits and traffic sources so we can measure and improve the performance of our site. They help us to know which pages are the most and least popular and see how visitors move around the site. All information these cookies collect is aggregated and therefore anonymous. If you do not allow these cookies we will not know when you have visited our site, and will not be able to monitor its performance.