Hostile Work Environment and FMLA: Do You Have a Suit?

February 9, 2022by Margot Lester

Today, we’re answering a question from reader Rose about a difficult situation at work. She writes: “I’m thinking about filing a hostile work environment claim that relates to family and medical leave. Can you explain what my rights are for both?”

Let’s take a look.

What Is a Hostile Work Environment?

Under federal law, it’s illegal for one employee (including a boss or subordinate) to harass another based on race, color, religion, sex (including gender identity and pregnancy), national origin, age, disability, genetic information, sexual orientation, or parental status. There are two types of harassment:

  1. When employment decisions or treatment are based on submission to or rejection of unwelcome conduct, usually sexual in nature. This is often known as quid pro quo harassment. Examples include:
  • Firing or denying promotion to a subordinate for refusing to be sexually cooperative
  • Requiring a subordinate to participate in religious activities as a condition of employment
  1. When supervisors, co-workers, customers, contractors, or anyone else with whom you interact on the job engages in offensive conduct that is so severe or pervasive that it creates a hostile or offensive work environment or results in an adverse employment decision (such as being fired or demoted). The unlawful conduct must be both unwelcome and based on the victim’s protected status. Examples:
  • Talking about sexual activities, commenting on physical attributes, or telling off-color jokes concerning race, sex, disability, or other protected status
  • Displaying sexually suggestive images or racially insensitive pictures
  • Engaging in unnecessary touching or hostile physical conduct
  • Using crude, demeaning or inappropriate language or using indecent gestures
  • Sabotaging the victim’s work

There are a lot of specific criteria that must be met to make a hostile work environment claim.

Working with a skilled employment attorney is the best way to determine if you have a case. If so, an attorney can also help you gather all the documentation necessary to prove your hostile work environment claim.

What Does the Family-Medical Leave Act Cover for Employees?

The Family and Medical Leave Act (FMLA) is a federal law that requires employers with at least 50 employees to give time off for health and caregiving. However, not all employees are eligible. You must work for at least 1,250 hours during a period lasting 12 months before you’re eligible. If you meet the requirements, then you have the right to take time off for:

  • the birth, adoption, or foster care placement of a child
  • your own or a family member’s serious health condition
  • complications from a family member’s military deployment, or from injury or illness related to military service

Four Common FMLA Violations

Many employees and employers don’t understand how FMLA works. Here are four common issues:

  1. Equating FMLA with WFH. Since COVID, many employees are working from home. Of course, this means that if a family member has a cold or a chronic illness, you’re there to take care of them. That’s not FMLA leave, however. Under the law, you employer cannot ask you to do any work while you’re out on FMLA.
  2. Incorrectly Handling Benefits and Perks. Your employer must maintain your employer-provided health insurance while you’re out on leave, though they can ask you to contribute to the cost. They must also continue to continue benefits related to tenure/seniority, cost of living adjustments, and other metrics.
  3. Counting FML Days as Absences. When you’re out on leave, you’re not “absent.” If you’re on leave, then your employer cannot withhold incentives and rewards for attendance. And your time away from the office on FMLA leave can’t be used against you in performance reviews.
  4. Changing Your Job. When you come back to work, your employer must give you an “identical or equivalent” job with the same responsibilities, compensation, location, etc.

If your employer violates your FMLA rights, then hire an experienced employment lawyer to help you build a case. While you can’t file a federal case for punitive damages or claim pain and suffering if your FMLA rights are violated, you may be able to get relief under state laws if you live in:

Have an Attorney Review Your Potential Hostile Work Environment Case for Free

Building a case for either FMLA violations or workplace harassment can be complicated. Consider hiring an employment attorney specializing in benefits and hostile work environment cases to protect your rights.

Learn more about the benefits of working with an employment lawyer.

Ready to see if you may qualify? Complete your free online employment case evaluation now!

Margot Lester
CEO at The Word Factory | + posts

Margot Lester is the CEO of The Word Factory, a content marketing agency based in North Carolina that provides services for international healthcare brands, tech companies and SaaS developers. An award-winning business and brand journalist, she writes for daily and weekly newspapers and business journals, national magazines, in-flight publications and leading websites. Margot is also an in-demand writing coach and organizational communications trainer, helping individuals and teams write more effectively. LinkedIn: linkedin.com/in/margotlester.

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