Holiday Pitfalls: Time Off from Work and Marital Status Laws

Last year in November, I did a post covering various legal pitfalls that surface during the holidays. You might want to give this previous post a quick review, even though many employers are scaling back usual holiday plans this year.

One possible pitfall raised by an employer recently involves this scenario: Most employees want to take vacation or paid time off (PTO) around the holidays of Thanksgiving and Christmas. HR can spend a lot of time every year trying to sort out these requests. Single employees may come out holding the short end of the stick when there’s sort of an unwritten policy that married employees, particularly those with children, are given preference on these holiday-related vacation or PTO requests.

If a single employee objects to this policy because he’s always expected to take up the slack around the holidays while married coworkers are given time off, do you have to take this objection seriously? If an unmarried employee who has children says she should be treated the way the married employees are treated because she needs some extra time with the kids around the holidays, is this a legitimate claim? In other words, is giving married employees with children preferential treatment in this regard illegal? Let’s ask the question again after dropping the term “married.”

While Title VII of the Civil Rights Act of 1964 doesn’t include “marital status” as a protected class, it appears that 19 states plus the District of Columbia have laws making marital status a protected class. (Alaska Statute, Section 18.80.220; California Gov’t Code, Section 12940; Connecticut Gen. Statute, Section 46a-60(a)(1); 19 Delaware Code, Section 711; D.C. Code Ann., Section 1-2502(17); Florida Stat., Section 760.05; Hawaii RS, Chapter 378; Illinois Comp. Stat. Ann., Sections 5/1-103(J) and 5/1-102; Maryland Code Ann., Article 49B, Section 5(b); Michigan CL, Sections 37.2202 and 37.1202; Minnesota Stat. Ann., Section 363.01, Subdivision 24; Montana CA, Sections 49-2-303(1)(a) and 49-3-201(1); New Hampshire RSA, Chapter 354-A; New Jersey S.A., Section 10:5-12(a); New York Executive Law, Section 296(1)(a); Oregon RS, Section 659.030(1)(b); Pennsylvania Statute, Sections 73-573, 74-205, 74-446; Washington Rev. Code, Section 49.60.010; West Virginia Code, Section 18A-4-8b; and Wisconsin Stats., Section 11.31)

It may be that the public policy behind these laws was to protect married employees from being discriminated against. In the past, some employers would hire single employees, at least for certain jobs, so there would be no conflicting allegiance between work and marriage. However, most of these laws have language in them or have been interpreted by courts to mean that unmarried employees are also protected. Put simply, these laws protect an employee from discrimination based on his marital status — married, single, divorced, widowed or separated.

But what about giving married employees, particularly if they have children, preference for vacation or PTO around Thanksgiving or Christmas to the alleged detriment of single employees, at least single employees who have no children? Does this violate a law providing marital status protection? There may be a court case somewhere that specifically addresses this question, but I couldn’t find it.

Perhaps the most relevant case I found is Noecker v. Department of Corrections, 512 N.W.2d 44 (Mich. App. 1993). An employee had requested a day shift assignment to meet her obligations with her husband and children in the evening. When her employer put her on the night shift, she filed suit, claiming that her employer’s action violated Michigan’s law on marital status discrimination. The court said no. According to the court, just as assigning an unmarried employee to work nights or on the weekends when the employee would prefer to have those times free to date wouldn’t be marital status discrimination, assigning the married employee in question to the night shift wasn’t marital status discrimination. The court ruled that the employer had based its decision on what was most convenient, not on the employee’s marital status.

It’s nonetheless arguable that having a policy giving married employees with children or even unmarried employees with children vacation or PTO around the holidays instead of single employees constitutes discrimination based on marital status. Although I’m inclined to believe that this argument wouldn’t carry the day, it’s probably better for an employer to base the preference on familial obligations rather than marital obligations. This would mean that some single employees with children get the preferential treatment, not just married employees. But bear in mind It could also mean that if a single employee with no children requests vacation or PTO around Christmas to spend time with a sick or dying parent, that employee’s familial obligations would also have to be recognized.

In large part, this question is more practical than legal. The chances of an employee filing a charge of discrimination or a lawsuit over this seem remote. But the question is worth considering.

The needs of the business should and can come first. Apart from that, an employer’s policy on anything should be designed in part to promote a feeling of fairness in the workplace. HR can’t always pull that off, particularly when it comes to holidays and vacations. It’s still something you should think about, plan for, and discuss openly with your employees.

It’s always been said that this time of the year produces a lot of stress. This will be particularly true in 2008. Rather than adding to employee stress, employers — HR — would be well served to work with your employees on these kinds of matters and let them know you’re trying to do what’s best for them within the confines of your organization’s business needs.

1. 

   John Phillips says:

   November 25, 2008 at 7:50 am

   Thanks for the link. Nice to find your blog.