Is it legal to deny promotion because of disabled family member and FMLA use?

I am a temporary worker at a major manufacturer; I’ve been there for 3 1/2 years. My wife was declared disabled a couple of years ago. Her disability causes me to miss work from time to time, so I’ve used FMLA to cover the time used in these absences. In that 3+ years I’ve seen many of my temporary counterparts be hired on full time with the company. I feel as though I’m being passed over for hire because the use of FMLA. Is this discrimination?

Posted 10-01-2014

Ann Kiernan replies:

Based on what you’ve told me, it sounds like you could be the victim of discrimination because you have a disabled family member, and that you might be the target of retaliation because of your FMLA use.

In addition to protecting qualified applicants and employees with disabilities from employment discrimination, the Americans with Disabilities Act also protects applicants and employees from discrimination based on their relationship or association with an individual with a disability. Thus, it would be illegal discrimination if your employer has rejected your application for a regular position because it assumes that you will be away from work excessively or be otherwise unreliable because of your need to care for your wife. See the EEOC Q & A on this topic.

Further, denying you a regular position because you have lawfully used the FMLA leave you have earned is unlawful retaliation. Using an employee’s request for or use of FMLA leave as a negative factor in employment actions, such as hiring, promotions, or disciplinary actions is against the law.

You should speak to a local employment attorney to find out more on your rights and how to protect them. Good luck to you and your wife.

Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.

2015-06-12T00:57:14+00:00

About the Author:

Ann Kiernan has litigated claims of wrongful discharge and discrimination before state and federal courts and administrative matters before the New Jersey Division on Civil Rights, the National Labor Relations Board and the Equal Opportunity Employment Commission, representing both employers and employees. Ms. Kiernan co-hosted The Employee Rights Forum, a weekly radio call-in show reaching up to a half-million listeners in the New York metropolitan area, and her articles on employment law have been published in many books and magazines. Both as a firm partner and as a director, Ms. Kiernan gained solid experience in management and human resources compliance. She has worked with Fair Measures since 1997.