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Parental Leave Work Policies: A new Source of Workplace Discrimination


Employers are not required by any law to provide paid leave to a parent after a child's birth. The Family and Medical Leave Act only requires that leave be provided after the birth of a child. It is the employer's choice whether to make that leave paid or not. The problem comes in when an employer's parental leave policy does not apply to both mothers and fathers.

What the FMLA provides

Under the Family and Medical Leave Act (FMLA), both male and female employees are eligible for unpaid parental leave following the birth of a child. Eligible employees are guaranteed 12 weeks of unpaid leave, with the right to have their job restored after they return from qualified leave. Not all businesses are governed by the FMLA. This federal law applies only to private employers who have at least 50 employees. If both parents work for the same company, the 12-week guaranteed leave must be shared between the two.

Sex discrimination is prohibited

A federal anti-discrimination law, known as Title VII, makes it unlawful to discriminate against others on the basis of sex or gender, as well as other protected categories of people. Therefore, when developing company leave policies, employers must ensure that those policies comply with the various laws that prohibit discrimination.

Time Warner, a global leader in media and entertainment and an employer with more than 50,000 employees, was accused of sex discrimination based on its family leave policy just last year. Josh Levs, a CNN reporter, filed an EEOC charge against Time Warner based on the company's family leave policy.

Unfair limitations on fathers' medical leave

According to Josh Levs' claims, Time Warner had a policy that allowed mothers who gave birth 10 weeks of paid leave. However, fathers who just had a child are limited to only 2 weeks of paid leave. What made matters worse, is the fact that male employees who adopted or fostered a new child were allowed the more extensive 10 week leave. Levs described the unfairness of this policy this way:

If I were a woman, but other elements of my situation were the same — I was still with the same woman (so that would be a same-sex relationship), and she gave birth to our child, legally I would have to adopt in order to be co-parent. I would then have the option of 10 weeks off, paid. Or how about this: If I gave my child up for adoption, and some other guy at Time Warner adopted her, he would get 10 weeks off, paid, to take care of her. I, however, her biological father, can't.

Looking at the situation this way, it does seem unfair, doesn't it? Yet, some proponents of such policies see it a different way.

Are the needs of men and women different after birth?

In the opinion of some, there is a difference between men and women when a newborn is welcomed into the family. Because women give birth, they are generally not medically ready to return to work immediately. Whereas, men do not have the same complication and can technically return to work at any point. Distinctions are also made for families who adopt a child, as they purportedly face different challenges in adjusting to a new family member.

The outcome of this case will be interesting to see. When parental leave policies are not applied equally to both sexes, then a business, like Time Warner, could be looking at a potential sexual discrimination lawsuit.

If you believe you are the victim of employment discrimination or you have questions about your employment rights or possible legal claims, contact Michel | King Michel & Kingeither online or by calling us at (205) 265-1880.

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