Jottings By An Employer's Lawyer

Monday, June 09, 2008

5th Circuit Limits "Associational Rights" Under the FMLA

There has been a recent spate of activity about associational rights under various statutes, with most of them taking a relatively broad view of expanding protection for those who have been discriminated/retaliated against because of their association with an employee who had a substantive claim. See for example the Laconic Law Blog's post on Associational Discrimination or the Ohio Employer's Law Blog post on an April decision by the 6th Circuit.

Which makes Friday's decision by the 5th Circuit in Elsensohn v. St. Tammany's Parish Sheriff's Office (5th Cir. 6/6/08) [pdf] interesting because the 5th Circuit refused to do so under the FMLA. Elsensohn's wife, who was formerly employed by the Sheriff's office had an FMLA claim against it. Elsensohn was a sergeant. According to his complaint, "at all times Elsensohn attempted to not involve himself in his wife's FMLA claim except to give her moral support."

After she settled her FMLA claim, Elsensohn claimed he was denied a promotion and was transferred to a less favorable position. He sued under FMLA saying he had been retaliated against because the employer knew if her case went to trial he would testify on her behalf.

However, he did not fit under the literal language of the statute of being one who "had given, or was about to give" any information in connection with a proceeding, nor had he "testified, or was about to testify in any inquiry or proceeding." The district court found his potential participation with his wife's claim was not enough to bring him literally within the wording of the FMLA's protective ambit.

The 5th Circuit while agreeing that some other courts had expanded laws to cover such claims, noted it had refused to do so under the ADEA, and since it appeared the protection there was even broader than that afforded to individuals under the FMLA, declined to do under the FMLA as well.

In the greater scheme of things, not a huge decision, but certainly an interesting one in a unique niche that seems to be getting some attention of late.


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