66 Human Resources Management for Public and Nonprofi t Organizations
parent ’ s active duty or notifi cation of an impending call or order to active
duty in the U.S. armed forces in support of a contingency operation.
Also, an employee who is the spouse, son, daughter, parent, or next of
kin of a covered service member is entitled to twenty - six workweeks of
leave during a twelve - month period to care for the service member. The
leave is available during a single twelve - month period. On February 11,
2008, the Department of Labor released proposed changes to the FMLA
regulations. Employers are well advised to see if and what changes may
have been made at http://www.dol.gov/esa/whd/fmla/.Proving Employment Discrimination
Cases of alleged discrimination in violation of federal or state statutes
can be made under one of two theories: disparate impact and disparate
treatment.Disparate Treatment
Disparate treatment occurs when an employer treats an employee of a
protected class differently from a nonprotected class employee in a similar
situation. For example, deliberately using different criteria for selection
depending on the candidate ’ s sex or race would constitute disparate treat-
ment, as when an employer asks female applicants but not male applicants
questions about their marital status or child care arrangements or requires
African American applicants to take preemployment tests that other
applicants applying for the same positions are not required to take.
The following test, set forth in McDonnell Douglas v. Green (1973), permits
plaintiffs to establish that an employer treats one or more members of a
protected group differently from members of another group:- The applicant or employee is a member of a class protected by the
statute alleged to be violated (sex, race, age, national origin). - The applicant or employee applied for the vacancy and is qualifi ed to
perform the job. - Although qualifi ed, the applicant or employee was rejected.
- After rejection, the vacancy remained, and the employer continued to
seek applications from persons of equal qualifi cation.
The Supreme Court established that in disparate treatment cases, the burden
is on the plaintiff to prove that the employer intended to discriminate