Many of you accumulate vacation days at work throughout the year. So did the plaintiff in this recent federal court decision. She alleged that when her employer denied her requests to use her unused, accrued vacation in 2018 and 2019, it discriminated against her based on her sex, seemingly because it allowed other men to use vacation on the dates she wanted.
Is that sex discrimination?
The law requires a plaintiff claiming disparate treatment to show that she suffered an adverse employment action. An adverse employment action is a materially adverse change in the terms and conditions of employment, i.e., something more than mere inconvenience. Termination of employment is an obvious one. But denial of fringe benefits and other significantly negative alterations of working conditions would qualify, too.
Suppose a company has a vacation policy with specific accrual periods. If the employer only allowed men to accrue PTO, women would have a viable sex discrimination claim.
Similarly, if all employees accrued vacation, but the employer never allowed women to take paid time off, that would also violate anti-discrimination law.
But, this lawsuit is about the employer limiting when (not if) employees take vacation.
The loss of vacation time is an adverse employment action; not being able to use vacation time exactly when requested is not. Indeed, the judge noted that “the refusal to honor an employee’s preferred vacation schedule amounts to merely an inconvenience and does not materially alter the terms and conditions of the employee’s job.”
Here, the plaintiff was a union employee, and the terms of the collective bargaining agreement between the defendant and the union required vacation accruals. However, the employer had the discretion to approve when employees could use vacation time based on “operational needs” of the department.
Since the plaintiff had no evidence that her vacation time was taken away from her, her claim sex discrimination claim based on not getting her preferred vacation schedule failed.
Most employers do not have granular PTO policies that include criteria for scheduling vacations. Seniority and first-come-first-served are objective, non-discriminatory bases for scheduling employee vacations. But, while a free-for-all may create discord, it would not engender a viable discrimination claim.
At least not based on this judge’s decision.