Fathers Sue for Paternal Leave

September 20, 2015 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

For many years now data from multiple sources have indicated fathers’ increasing care of their children.  Time diaries by mothers and fathers used by the Bureau of Labor Statistics to produce its American Time Use Survey have shown fathers doing progressively more child care.  On one hand it’s good to see fathers more actively involved in their children’s lives because their children are emotionally attached to them and benefit from their hands-on parenting.  On another hand, it’s troubling to see fathers increasing their parenting only to be treated by family courts as if they weren’t.  And on yet another hand, more than one report find the stress of adding child care to their assumed role of primary breadwinner to be increasing fathers’ stress levels over those of mothers.

Exactly which direction this culture is heading in the struggle to find balance between male and female roles and paid and unpaid work is anyone’s guess.  Much data suggest that the great body of people resist abandoning traditional sex roles, but not all.  This article, for example, suggests that at least some dads are not only taking fatherhood every bit as seriously as mothers usually do motherhood, but also that they’re willing to go to court against their employers for gender discrimination in things like parental leave (New York Times, 9/15/15).

It’s one thing to do more parenting, but for a man to also risk his job and reputation by suing his employer is truly a big step.  Generally speaking, men, whether fathers or not, find much of their identity and sense of value in their paid work.  To risk that in order to assert themselves as parents is no small thing.  But many men seem to be doing it.

“The huge thing that’s changed only in about the past five years is suddenly men feel entitled to take time off for family,” said Joan C. Williams of the Center for WorkLife Law at the University of California Hastings College of the Law in San Francisco. “They’re willing to put their careers on the line to live up to that idea. It’s revolutionary.”

The NYT piece is a good one.  It gives a fair description of federal law as it relates to parental leave afforded mothers and fathers in the U.S.  Basically, in this country, no employer is required to offer any employee parental leave.  But about 21% of them do.  And when they do, the rules get a bit complicated.  If an employer offers leave to mothers, it must do the same for fathers, but fathers need not be offered the same leave mothers get.  A mother’s leave rightly includes time for her to recover physically from giving birth.  That time needn’t be offered fathers, but whatever leave is given beyond what’s required for the mother’s physical recovery must also be offered to the dad.

But companies that do offer paid leave can run into legal trouble if they offer far longer paid time off to women. Equal Employment Opportunity Commission guidance on the subject explains that under Title VII of the Civil Rights Act of 1964, companies may offer longer leaves to biological mothers than to biological fathers, but the difference must be justified by medical necessity. Any paid leave offered beyond the time a mother spends recovering from her pregnancy must be offered equally to both men and women. Courts have recognized that six weeks is typical for a mother, though it can be longer in individual cases.

As many dads can testify, it’s one thing for a company’s policy to offer paternity leave, it’s another for men to actually take it.  In many cases, there’s still an unwritten assumption that a man will devote himself first and foremost to his employer and when he doesn’t, discrimination against him may follow.

“The huge thing that’s changed only in about the past five years is suddenly men feel entitled to take time off for family,” said Joan C. Williams of the Center for WorkLife Law at the University of California Hastings College of the Law in San Francisco. “They’re willing to put their careers on the line to live up to that idea. It’s revolutionary.”

In his complaint, Mr. Ayanna cited a “macho” culture that “encourages male associates and partners to fulfill the stereotypical male role of ceding family responsibilities to women.”

At the firm, he noted in the complaint, the partner he reported to repeatedly “made derisive comments about Ayanna’s taking care of his wife and children” after he came back from leave, even though there was no evidence that he had missed deadlines or his work had suffered in any way.

And apparently employers discriminate against fathers more readily than they do against mothers.

In a study reported this year in the journal Organization Science, Erin Reid, an assistant professor of organizational behavior at Boston University, who gained access to workers in a large consulting firm, uncovered numerous instances in which fathers were discouraged from adjusting their schedules to accommodate parental responsibilities, coupled with a kind of disbelief that they would even entertain the idea.

“Men experienced more overt discrimination, hostility,” Professor Reid said.

That only makes sense.  The ages-old male role as primary breadwinner and only secondary parent is the one to be upset by a man who reverses the two roles.  By contrast, a woman who adopts the primary parent role acts in conformity with traditional notions and can expect less push-back either from her employer or from society at large.

But one of the most significant pieces of evidence the article offers that times are a-changin’ is this:

The cases come against the backdrop of a societal shift in which many fathers are working less and spending more time with their children. A recent Pew Research Center analysis reported that from 1965 to 2011, fathers reduced the number of hours they devoted to paid work to about 37 from 42 each week on average and increased the number of hours they devoted to child care each week to about seven from 2.5.

In other word, fathers generally have replaced about five hours per week of paid work with about five hours per week of childcare.  That’s a shift in priorities that can’t be ignored.  Given that, it’s no surprise that they’re also fighting back against employers who assume that if they employ a man, they’ll be getting a worker who has little-to-no commitment to caring for his children.  So employers had better watch their legal P’s and Q’s; if they don’t, they’ll increasingly find themselves in court.

[Senior adviser at the Center for WorkLife, Law Cynthia Thomas] Calvert said the world would soon see a case alleging that retaliation for male caregiving — mockery, gratuitous discipline, ostracization — created a hostile work environment, that mainstay of litigation involving women in the 1980s and ’90s.

Her colleague, [Joan C.] Williams, amplified that point. “Because of the kinds of comments older men are making to younger men,” she said, “employers are unfortunately sitting ducks for suits based on gender discrimination.”

Needless to say, with so few employers offering any leave at all to fathers, the vast majority of dads aren’t going to be affected one way or another by lawsuits about parental leave.  Still, it’s worth noting a couple of things.  The first is the level of resistance to offering leave to dads and the even greater resistance to their taking it.  

But more important are the effects employers have on fathers’ behavior and ultimately on the outcomes of custody cases in family courts.  The anti-father bias of family court judges has been surveyed in at least 11 different states and in each, both judges and the lawyers who practice before them agree that a high level of anti-father bias exists.  That means that a father who adopts the traditional breadwinner role has little chance of getting an award of meaningful parenting time.

A father who can demonstrate that he’s done significantly more to care directly for his child may or may not have a better chance.  But it’s certain that if he can make that showing, his possibility of getting more parenting time than the minimum can’t be hurt.  So employers who either don’t offer parental leave to fathers or who discourage dads from taking it do more harm than first meets the eye.  They also abet a family court system that routinely takes fathers out of their children’s lives to the detriment of all – kids, fathers, mothers and society generally.

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