In Orr v. City of Albuquerque, two police officers sued the City of Albuquerque for its handling of their pregnancy leave.  Importantly, neither was denied any leave time; it was simply how the City accounted for their maternity leave that prompted the lawsuit.  Both police officers sought—and were granted—FMLA leave for the birth of their children.  However, Ms. Vigil, the Human Resources director, told them both that they would have to use their accrued sick leave first and then their vacation time in order to receive compensation for the time that they were out on leave.  In addition, she told them that they would not be eligible to use their accrued compensatory time to cover their FMLA leave. 

The pregnant officers felt that this was discriminatory against pregnant women, since individuals on FMLA leave for reasons other than pregnancy were able to use compensatory and vacation time, prior to using sick time.  Under the City’s policies regarding how it treats compensatory, vacation and sick time, this distinction made a significant difference to the pregnant women.  Only sick time—not vacation or compensatory time—can be accrued over the years and applied towards an early retirement.  So, by requiring its use first, the pregnant women would have to sacrifice it as a means toward early retirement.  And, unlike sick time, vacation time is capped and subject to a “use it or lose it” policy.  By preventing the employees from using their vacation time first towards their FMLA leave, the City was in essence forcing the women to forfeit their vacation time.  Compensatory time is also capped, and once a certain amount is banked, it must be used before an employee can work any more overtime.  Both plaintiffs had the requisite amount of compensatory time banked and, by prohibiting them from using their banked compensatory time while out on leave, the City was in effect barring them from working (and earning) overtime upon their return from leave.  Those three factors made the leave policy for the two pregnant employees sufficiently different from the leave policy for employees on FMLA leave for reasons other than pregnancy for the women to sue under the Pregnancy Discrimination Act.

The City defended its actions by pointing to a draft departmental policy that was in place at the time the plaintiffs sought their FMLA leave, which stated that all FMLA-qualifying conditions were to be treated under the same payment scheme to which the plaintiffs were subject.  The evidence showed, however, that those regulations were merely in draft form at the time the women sought their leave, and the draft regulations completely contradicted the existing, controlling policy that was officially in effect at the time.  The court also found that the draft regulations had not been applied to other people taking FMLA leave for reasons other than pregnancy.  The court found that the employees had pointed to enough evidence that the officers may have been discriminated against on the basis of pregnancy to permit the case to go to trial.

This case highlights a few important reminders about employer leave policies.  Although an employer has latitude in structuring its FMLA policies in relationship to its other leave policies (requiring concurrent use of vacation time, for example), an employer needs to be careful to treat all types of conditions similarly.  Here, the employer’s downfall was that it was treating pregnant women differently—and less favorably—than all other employees who went out on FMLA leave.  Furthermore, when adopting a new policy, employers should take care to make its effective date clear and communicate that date to all employees. 

This case also highlights potential sources of litigation.  This case was brought under the Pregnancy Discrimination Act, which is part of Title VII, but a separate claim from a case for discrimination on the basis of sex.  This case also highlights a potential claim under the FMLA, although these women did not make any such claim.  The FMLA regulations provide that any paid leave to which an employee is entitled can be used during FMLA leave.  However, if that option is available, “[n]o limitations may be placed by the employer on substitution of paid vacation or personal leave for these purposes,” suggesting that, if employers do require or permit the concurrent use of paid leave on FMLA, it needs to be unconditional (i.e., the employer here should not have been permitting the use of sick leave time, but forbidding the use of compensatory time).  (The employer here recognized that, too, and has since changed its policy so that employees are no longer required to use sick leave before other types of paid leave while out on FMLA leave.)