Dive Brief:

• An employee's claims under the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA) were properly dismissed because she did not prove interference, retaliation or ADA association bias (Sutherland v. Global Equipment Co., Inc., No. 18-13384 (11th Cir. Oct. 4, 2019)).
• Rebecca Sutherland's multiple requests for leave to care for her husband and also for a personal medical issue were approved, and the 11th U.S. Circuit Court of Appeals said it was irrelevant whether other employees who took FMLA leave were granted a designated cover person for their accounts as the FMLA does not guarantee that right. The transfer of five of Sutherland's accounts was a regular business occurrence, and there was no evidence that her working conditions were so intolerable as to characterize her resignation as a constructive discharge. 
• The 11th Circuit concluded that Sutherland had not established that she had suffered any adverse employment actions. Accordingly, it upheld a district court's ruling of summary judgment in favor of her employer.

Dive Insight:

An employee alleging employment discrimination, harassment or retaliation often experiences some kind of adverse employment action and then tries to link that action to an illegal motive. This case is somewhat unusual because there was little evidence that the employee had experienced any kind of averse action, regardless of motive.

The employee's allegations do, however, highlight an important lesson for employers: Employees in similar circumstances should generally be treated comparably. If, for example, some employees on FMLA leave get a certain benefit (such as a dedicated cover person), others who don't receive that benefit may be upset and perceive that they are being treated unfairly — even if the action doesn't rise to the level of illegality.

Oftentimes, unequal treatment is an employee's main argument in an employment bias or retaliation lawsuit. A postal worker who was fired for falling asleep on the job, while others who did the same were not fired, was able to establish that her termination was in retaliation for her filing of a discrimination complaint.

Similarly, a fired 57-year-old GNC employee with poor performance reviews was able to show age bias because other workers with bad scores (all of whom were significantly younger) were not placed on action plans or fired.

Employees appreciate fair, equitable treatment, and the perception of having a caring employer is important to retention efforts. According to new research, 60% of employees who said they felt cared for by their employers reported plans to stay for three or more years, but only 7% of workers who said they didn't feel cared for planned to stay that long.