QUERY: This week, a quiz for our readers.

QUESTION

Zelda begins missing a lot of work because she is taking care of her elderly mother. Her supervisor, Chlorine, fires Zelda for poor attendance. As Zelda is cleaning out her desk, Chlorine comes by to help her pack. Chlorine says, “Zelda, I just want you to know that this is not personal. You’ve been a very valued employee, and you’re welcome to come back after your mother dies. Maybe it won’t be too much longer. Anyway, we need you at work on a regular basis, and I’m sure you can understand our position. Stay in touch, o’kay?”

Zelda sues the company under the Americans with Disabilities Act, the Family and Medical Leave Act, and for sex discrimination under Title VII because family-unfriendly policies have a disparate impact on women, who bear primary caretaking responsibility in their households. Who wins?

ANSWER
Probably not Zelda (unfortunately). Although Zelda has a most insensitive supervisor, she probably does not have a legal claim against the company. She has no ADA claim because there is no indication that her mother is disabled. Even if she were, the ADA would offer no protection to Zelda for missing work. The ADA “associational” protections do not require reasonable accommodation.

Zelda also doesn’t have an FMLA claim (assuming she’d met the 12 months/1250- hour requirement and had leave available) because there is no indication that her mother has a serious health condition. Merely being “elderly” is not a serious health condition. However, Zelda might be entitled to time off under the FMLA if her mother became sick or needed medical treatment.

The sex discrimination theory is creative but another non-starter. A “family-unfriendly” attendance policy may (or may not) affect female employees more than male employees, but it is generally not held to be discriminatory as long as the employer applies the policy uniformly.

How about intentional infliction of emotional distress based on Chlorine’s insensitive remarks? Most courts would say that her remarks, while rude and insensitive, are not so “extreme and outrageous” as to give rise to such a claim.