By Larry Weisberg on November 8th, 2018
Most employers across America set a strict schedule for their employees to clock in and out every day. If these hours amount to inconvenience — such as in cases of disability or caring for young children — does this inflexibility count as workplace discrimination?
While inflexible work schedules are still a gray area in American equality laws, some cases of inconvenient working hours could classify as discrimination. In these instances, you have the option to file a claim with one of our employment attorneys to help.
When Do Inconvenient Working Hours Count as Discrimination?
Although flexible work schedule acts have been proposed, neither the U.S. government nor the state of Pennsylvania currently has any specific flexible work protections in place, such as those in the U.K.’s Equality Act 2010. However, courts have sided with employees on several occasions who have claimed direct or indirect discrimination for inconvenient working hours. In addition, some acts have been put in place to protect against discrimination due to inflexibility. Consider the following examples:
- Schedule changes interrupting child care: In cases such as 2010’s Forsythe v. New York City Dept. of Citywide Administrative Services, schedule changes were ruled to be adverse employment actions due to difficulty meeting child care needs. In this specific case, the employee was subjected to inconvenient working hours that caused him unexpected difficulty in transporting his child to and from school and caring for after-school needs.
- Inflexibility in accommodating disabled employees: In August 2017, UPS agreed to pay $2 million to nearly 90 employees for disability discrimination. The EEOC said the company’s leave policy was unfair to employees with disabilities requiring accommodations and it did not engage with the ADA-specified interactive process. In cases like these, disabled employees can file for discrimination if an employer won’t meet reasonable accommodations — such as a modified work schedule — as outlined by the ADA.
- Unwillingness to accommodate FMLA intermittent leave: The Family Medical Leave Act (FMLA) allows qualified employees to take intermittent leave or a reduced leave schedule when medically necessary for a qualifying serious health condition. While this leave can be unpaid, employers are required to allow these employees to reduce their weekly or daily work schedule within the allotted time. If the employee experiences harassment due to the exercising of these rights, they can legally take the claim to court.
Denial of Schedule Change Is Not a Discriminate Action
The 2018 case Gibson v. New York State Office of Mental Health is one instance in which a court ruled in favor of the employer after the denial of a schedule change.
In this case, the employee claimed she was discriminated against after she was granted custody of her grandsons. She requested a change from night shift to day shift to care for them and claimed discrimination due to age and sex when her request wasn’t granted.
Based on this precedent, a denial of a schedule change cannot typically be counted as discrimination. The employee wasn’t subjected to an inconvenient change in the workplace — while her lifestyle outside of work changed, she was unable to prove that her employer objectively caused the adverse effect.
Learn More
Because no specific flexible working arrangement policy exists in the U.S., it can be challenging to navigate the nuances and determine whether your inconvenient working hours are actually a form of discrimination. It’s wise to seek the expert knowledge of an attorney experienced in federal and Pennsylvania employment laws to determine if you have a base for a claim.
At Weisberg Cummings, P.C., our attorneys have more than 40 years of combined experience helping people like you understand workplace discrimination and work through the claims process. Contact us today to get started.