Employee Rights and Employment Policy Journal

Interference with the Right to Leave Under the Family and Medical Leave Act

By
Martin H. Malin

Abstract

Section 105(a)(1) of the Family Medical Leave Act makes it illegal for an employer to interfere with, restrain or deny any employee rights under the statute. On its face, this provision appears to be broader than a typical anti-discrimination provision. Unfortunately, many courts have interpreted section 105(a)(1) to incorporate the discrimination proof requirements developed under Title VII of the Civil Rights Act of 1964. In this article, Professor Malin shows why those courts are wrong. He situates the FMLA as an entitlement statute whose underlying purpose is to combat gender stereotypes concerning roles in the home and the workplace. Drawing of the social-psychology literature concerning stereotyping and empirical studies of the negative effects of leave taking on employees' career, particularly men's careers, he finds the need to combat such stereotypes remains great. He demonstrates why caselaw reading Title VII proof requirements into section 105(a)(1) are doctrinally faulty and, drawing of an analogous provision of the National Labor Relations Act, suggests a new doctrinal approach to the FMLA that will further the fulfillment of the FMLA's purpose of combating stereotypes.