JGL Principal Lindsay Parvis along with two other experts in Custody Proceedings – Syretta R. James, Ph.D. of Respire Behavioral Health and The Honorable Joanie Raymond a Frederick County Circuit Court Family Magistrate – presented a class to the Judicial College. The class entitled “It Takes a Village: Complex Parenting Cases,” this class was designed to encourage judges and magistrates to look at different types of experts to make child-centered decisions in custody cases. To read more about the class brought to the Judicial Class, read this article “Family Law, Matters: It Takes a Village – Experts in Custody Proceedings,” featured in the PGCBA News Journal.          

JGL Principal David Bulitt authored an article featured in the Washington Family Magazine entitled “Divorce and the Special Needs Child.” Read it here.

In a victory for employees, the U.S. Supreme Court made clear today that a job transfer can constitute an adverse employment action for the purpose of liability under Title VII, even absent significant harm.

In the case of Muldrow v. City of St. Louis, Missouri, et al., 2024 U.S. LEXIS 1816 (2024), the Court explained in an opinion delivered by Justice Kagan that the language in Title VII that makes it, “unlawful for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individuals race, color, religion, sex, or national origin[,]” requires an employee to show that a transfer, “brought about some disadvantage change in an employment term or condition,” but that such disadvantage need not be “significant.” Id. at *12-15.

Here, the employee, Sergeant Muldrow, alleged that she was transferred from a more prestigious role in the St. Louis Police Department’s specialized Intelligence Division to one where she supervised the day-to-day activities of neighborhood patrol officers. Although her rank and pay were unchanged, she lost her FBI status, the car that came with it, and she was shifted from a regular workweek to a rotating schedule. The Division commander who ordered the transfer often referred to Sergeant Muldrow as “Mrs.” instead of by her rank, and testified that the male officer was “a better fit for the Divisions[‘] dangerous work.” Id. at 8. Sergeant Muldrow sued for sex discrimination.

Reversing the 8th Circuit Court of Appeals, the Supreme Court explained:

That language requires Muldrow to show that the transfer brought about some disadvantageous change in an employment term or condition. Oncale v. Sundowner Offshore Services, Inc., 523 U. S. 75, 80 (1998). The words discriminate against, we have explained, refer to differences in treatment that injure employees. Bostock v. Clayton County, 590 U. S. 644, 681 (2020). Or otherwise said, the statute targets practices that treat[ ] a person worse because of sex or other protected trait. Id., at 658. And in the typical transfer case, that worse treatment must pertain to must be with respect to employment terms [or] conditions. 2000e-2(a)(1). The terms [or] conditions phrase, we have made clear, is not used in the narrow contractual sense; it covers more than the economic or tangible. Oncale, 523 U. S., at 78; Meritor Savings Bank, FSB v. Vinson, 477 U. S. 57, 64 (1986). Still, the phrase circumscribes the injuries that can give rise to a suit like this one. To make out a Title VII discrimination claim, a transferee must show some harm respecting an identifiable [*14]  term or condition of employment.

What the transferee does not have to show, according to the relevant text, is that the harm incurred was significant. 30 F. 4th, at 688. Or serious, or substantial, or any similar adjective suggesting that the disadvantage to the employee must exceed a heightened bar. See supra, at 4, and 4-5, n. 1. Discriminate against means treat worse, here based on sex. See, e.g., Bostock, 590 U. S., at 657-658, 681. But neither that phrase nor any other says anything about how much worse. There is nothing in the provision to distinguish, as the courts below did, between transfers causing significant disadvantages and transfers causing not-so-significant ones. And there is nothing to otherwise establish an elevated threshold of harm. To demand significance is to add words and significant words, as it were to the statute Congress enacted. It is to impose a new requirement on a Title VII claimant, so that the law as applied demands something more of her than the law as written.

And that difference can make a real difference for complaining transferees. Many forced transfers leave workers worse off respecting employment terms or conditions. (After all, a transfer is not usually forced when it leaves the employee better [*15]  off.) But now add another question whether the harm is significant. As appellate decisions reveal, the answers can lie in the eye of the beholder and can disregard varied kinds of disadvantage. Take just a few examples from the case law. An engineering technician is assigned to work at a new job site specifically, a 14-by-22-foot wind tunnel; a court rules that the transfer does not have a significant detrimental effect. Boone v. Goldin, 178 F. 3d 253, 256 (CA4 1999). A shipping worker is required to take a position involving only nighttime work; a court decides that the assignment does not constitute a significant change in employment. Daniels v. United Parcel Serv., Inc., 701 F. 3d 620, 635 (CA10 2012). And a school principal is forced into a non-school-based administrative role supervising fewer employees; a court again finds the change in job duties not significant. Cole v. Wake Cty. Bd. of Educ., 834 Fed. Appx. 820, 821 (CA4 2021) (per curiam). All those employees suffered some injury in employment terms or conditions (allegedly because of race or sex). Their claims were rejected solely because courts rewrote Title VII, compelling workers to make a showing that the statutory text does not require.

Muldrow v. City of St. Louis, 2024 U.S. LEXIS 1816, *13-15.

This important decision makes clear that employers cannot force a job transfer because of an employee’s protected status if such a transfer puts the employee in a worse position than they were before.

This year Law Day is celebrated on May 1st and The Bar Association of Montgomery County is hosting their 130th Annual Meeting & Law Week Celebration along with informative CLEs and panels during the week of April 29-May 3, 2024. JGL Principal Timothy Maloney will be speaking on a CLE covering “2024 Legislative Developments” on May 1st from 12:30-1:30pm.

JGL is hosting a fundraising reception to support sitting Prince George’s County Judges on Wednesday, April 3 from 6:00-7:30 PM. The event will be held in the Greenbelt office of JGL at 6404 Ivy Lane, Suite 400.

The cost is $100 per person. Checks can be made payable to “Committee to Keep Judges” and mailed to Judges’ Committee, P.O. Box 209, Riverdale, MD 20738 or via PayPal: PGSittingJudgesPayPal@gmail.com.

RSVP to Thenderson@jgllaw.com
By Authority of the Committee to Keep Your Prince George’s County Judges/Ben Rupert, Treasurer

View the full invite here.

On March 21, 2024 the National Institute for Workers’ Rights, the National Employment Lawyers’ Association, and A Better Balance argued before the 4th Circuit in the case of Shipton v. Baltimore Gas & Electric, et al. against the adoption of the “honest belief” defense to cases brought by employees to exercise the benefits afforded to them under the Family Medical Leave Act (“FMLA”).

The United States is unique among advanced economies in its failure to mandate any kind of guaranteed paid medical or family leave for workers. Instead, workers in the U.S.—if they have worked full time for a year at a workplace with over 50 employees—are entitled to take up to twelve unpaid weeks of leave a year under the FMLA, and know that their job is protected.[1] Just over half of U.S. workers qualify for FMLA leave, but the law’s benefits are not evenly distributed. Low-wage workers are less likely to be eligible for leave, more likely to fear job loss if they take leave, and more likely to be fired for taking leave than their high income counterparts.[2] Two-thirds of low-wage, FMLA-eligible workers who forgo necessary medical leave cite concerns about job loss as a motivating factor in the decision.[3]

Congress enacted the FMLA in 1993 with the goal:

“to balance the demands of the workplace with the needs of families, to promote the stability and economic security of families…to promote national interests in preserving family integrity,” to “promote the goal of equal employment opportune[ities]” recognizing that “due to the nature of the roles of men and women in our society, the primary responsibility for family caretaking often falls on women, and such responsibility affects the working lives of women more than it affects the working lives of men; and “to entitle employees to take reasonable leave for medical reasons, for the birth or adoption of a child, and for the care of a child, spouse, or parent who has a serious health condition.”[4]

The FMLA provides covered employees with “12 workweeks of leave during any 12-month period” for family-related reasons or for an employee’s serious health condition that renders him unable to do his job.[5] Such leave may be taken intermittently.[6]

Employees can enforce their rights in two ways.  First, the FMLA allows employees to recover for the damages that they suffer any time an employer interferes with their ability to exercise their benefits under the FMLA.[7] These are generally known as interference claims. Secondly, FMLA provides protections for employees from suffering from discrimination or retaliation for exercising their benefits under the FMLA.[8]

The plain language of the FMLA makes clear that under any scenario, the employers’ “good faith” belief that they were not interfering with an employee’s benefits, or discriminating against them because they thought they were legitimately engaging in an adverse employment action against the employee for some other reason, will only lead to a reduction in liquidated damages for the employer if they can  “prove[s] to the satisfaction of the court that the act or omission…was in good faith and that the employer had reasonable grounds for believing that the act or omission was not a violation.”[9]

This language exists because the FMLA is unlike other anti-discrimination statutes in that the FMLA grants employees tangible employment benefits. Congress modeled the enforcement mechanisms of the FMLA on the Fair Labor Standards Act, providing minimum labor standards for employees, just like the minimum wage or overtime.[10] Indeed, the original Senate versions of the bill (in 1986 and 1987) did not include any reference to an employer’s “good faith” as a defense at all, however, the final version of the bill, added the provision which ultimately became 2617(a)(1)(A)(iii). When Congress added this “good faith” defense to liquidated damages, the legislative history shows that it looked to the FLSA as a model for its enforcement mechanisms.[11] However, Congress chose to incorporate into the FMLA only one of the two “good faith” defenses available under the FLSA – and that is the good faith defense to liquidated damages, which mirrors the language of the FLSA[12] almost identically.[13] Congress could have enacted a provision mirroring the FLSA sections that provide a complete defense to liability,[14] but they simply did not do so. Where Congress decided to leave out a complete defense to liability based on the employer’s “good faith” or “honest belief,” courts should not rewrite the statute to include words that are not there.  Only a minority of Circuits have done so, and amici have urged the 4th Circuit not to put itself into that minority.

While employees are entitled to the benefits granted by the FMLA, that entitlement is not absolute.  For example, if the employer would have terminated the employee while they are on leave for some reason unrelated to their exercise of FMLA benefits, such as poor performance, a reduction in force, or job elimination, the FMLA provides that the employee would have no greater right to reinstatement than any other employee.[15] However, the plain language of the statute and accompanying regulations places the burden squarely on the employer to prove that an employee does not have a right to reinstatement,[16] and courts should not shift that burden back onto the employee.

Similarly, Congress established a mechanism for ensuring that employees take leave for legitimate reasons: giving employers the opportunity to request a medical certification from employees.[17] There are specific statutory provisions governing the “sufficiency” of the certification.[18] Moreover, if an employer doubts the validity of an employee’s medical certification, Congress also provided a mechanism in the FMLA—often referred to as the “anti-abuse” provision—for employers to get a second opinion.[19] When employers choose to require medical certification or challenge a medical certification, Congress provided employees with an entitlement to this neutral process to allow employers to challenge the sufficiency of that certification.[20] Congress did this to ensure that employers would not simply state, “I don’t believe you are sick.” To this end, the regulations also makes clear that interference with an employee’s FMLA rights includes “manipulation by a covered employer to avoid responsibilities under the FMLA,” and prohibits employers from using “the taking of FMLA leave as a negative factor in employment actions[.]”[21] 

Fundamentally, an employee’s entitlement to a benefit under the FMLA does not change simply because the employer “honestly believed” that they were not – just like an employee is still owed overtime even if the employer “honestly believed” that they were not. This is the reason that an employee is required to demonstrate that they were prejudiced by interference with their FMLA rights. If the employee is not prejudiced by the interference, then the employer can effectively say “no harm no foul.”

Ultimately, neither the regulations, nor the statute itself provide for a scenario where the employer can deny an employee the benefits afforded them under the FMLA simply because they “honestly believed” that they were not entitled to them. Courts should not judicially engraft a new defense that Congress chose to omit. To do so runs against the goal of balancing the demands of the workplace with the needs of families, the promotion of stability and economic security of families, and to give employees right to take reasonable unpaid leave for medical reasons the birth or adoption of a child, or for legitimate caretaking duties. The FMLA provides a truly minimum labor standard – like the minimum wage or child labor laws, and the implementation of an “honest belief” defense would strip these minimum standards bare.


[1] 29 C.F.R. § 825.110; 29 U.S.C. § 2611(2), (4).

[2] Scott Brown, Radha Roy, & Jacob Alex Klerman, Leave Experiences of Low-Wage Workers, Dept. of Lab. (Nov. 2020).

[3] Id. at 6.

[4] 29 U.S.C. § 2601.

[5] 29 U.S.C. § 2612(a)(1).

[6] 29 U.S.C. §  2612(b).

[7] 29 U.S.C. § 2615(a)(l); “[T]he substantive rights guaranteed by the FMLA are prescriptive, and a plaintiff seeking redress for employer interference with an entitlement is only required to show that he or she qualified for the right that was denied.” Sharif v. United Airlines, Inc., 841 F.3d 199, 203 (4th Cir. 2016) (citing Yashenko v. Harrah’s NC Casino Co., LLC, 446 F.3d 541, 546 (4th Cir. 2006)).

[8] 29 U.S.C. § 2615(a)(2); This limitation on employers is proscriptive. Yashenko, 446 F.3d at 546.

[9] 29 U.S.C. § 2617(a)(1)(A)(iii).

[10] Both the FLSA and FMLA provide that a violation entitles the employee to the values of the lost benefit provided by the statute, equitable relief, and liquidated damages.  Compare 29 USC §216 with 29 USC 2617 (a)(1).

[11] Indeed, both the FLSA and FMLA provide that a violation entitles the employee to the values of the lost benefit provided by the statute, equitable relief, and liquidated damages.  Compare 29 USC §216 with 29 USC 2617 (a)(1); see also House Report (Education and Labor Committee) No. 103-8(I), Feb. 2, 1993 (To accompany H.R.1) FAMLV-LH 4-A, 1993 WL 13148778 (A.&P.L.H.), 49; Senate Report from the Committee on Labor and Human Resources accompanying S. 5 from Jan. 27, 1993 – FAMLV-LH 4-A, 1993 WL 13148778 (A.&P.L.H.), 49; see also FAMLV-LH 5, 1993 WL 13148780 (A.&P.L.H.), 34

[12] See 29 U.S.C § 260.

[13]

Compare 29 USC § 260: “[I]f the employer shows to the satisfaction of the court that the act or omission giving rise to such action was in good faith and that he had reasonable grounds for believing that his act or omission was not a violation of the Fair Labor Standards Act of 1938, the court may, in its sound discretion, award no liquidated damages or award any amount thereof not to exceed the amount specified in §216.”With 29 U.S.C. § 2617(a)(1)(A)(iii):“[E]xcept that if an employer who has violated [§ 2615] proves to the satisfaction of the court that the act or omission which violated [§ 2615] was in good faith and that the employer had reasonable grounds for believing that the act or omission was not a violation…such court may in the discretion of the court, reduce the amount of the liability to the amount and interest determined under clauses (i) and (ii).”

[14] See, e.g., 29 U.S.C. §§ 258-259.

[15] See 29 U.S.C. § 2614; 29 C.F.R. § 825.216.

[16] 29 C.F.R. § 825.216(a) (“An employer must be able to show that an employee would not have been employed at the time reinstatement is requested in order to deny restoration to employment.”).

[17] See 29 U.S.C. § 2613.

[18] See 29 U.S.C. § 2613; 2614(c)(3).

[19] See 29 U.S.C. § 2613(c); 29 C.F.R. 825.307.

[20] Id.

[21] 29 C.F.R. § 825.220(c)

Click here to read the brief.

Brian Markovitz will co-host the “Life as a Labor & Employment Litigator” Lunch and Learn organized by The Labor and Employment Law Association (LELA) on April 1st from 12-1pm via Zoom. Register here today. 

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