The case is Wahl v. County of Suffolk, a summary order decided on February 24. Under the policy, both parents can take off from work after the baby is born. But women -- and not men -- can use accrued sick days before being taken off payroll. Plaintiff argued that this policy is not substantially related to the legitimate goal of protecting women in the workplace because "a woman can take the leave even if she is perfectly capable of working." This argument fails, the Court of Appeals (Katzmann, Carney and Restani [D.J.]) says, because:
it overlooks the physical reality of childbirth, which entails a number of medical procedures and recovery time, and which requires repeated visits to specialized doctors and time to address and investigate a variety of possible complications.
Wahl also argues that management gave him a lousy assignment after he spoke out against the constitutionality of the sick leave policy. Only two days after he spoke up, Wahl was given rotating tours instead of his usual night duty. Two days certainly supports a connection between the speech and the adverse action. Except that in this case it does not, because management had long been concerned about Wahl's misuse of sick time, and the County was able to prove that it would have transferred Wahl even without his protected speech. The causal connection between Wahl's speech and the lousy shifts is broken. The case is dismissed.