Best Ohio Employment Discrimination Attorney Answer: Who pays for paternity leave? Does my boss have to grant paternity leave? Can new dads take FMLA leave? Does FMLA cover birth of child for the father? What should I do if I was wrongfully fired after asking for maternity leave? How much paternity leave are fathers entitled to?
Imagine this, you just found
out your wife is pregnant. This is fantastic news! You’ve both wanted this for
so long, you saved up, planned perfectly and now you have a child on the way. So
many things still to do, so many preparations yet to make. As your wife’s belly
is growing and the due date is getting closer, you stop in to see your boss or
a human resource representative to ask about scheduling time off when your baby
son or daughter finally arrives. But, what happens next horribly shocks you –
the company you work for, you employer, does not offer or only offers a few
days of paternity leave. You ask, how long women get off from work for
maternity leave and you find out it is months.
As an employment attorney, one
of this first things that came to my mind is how many ways is this employer’s
parental leave policy violating the law.
Let’s start with the obvious. The Family and Medical Leave Act (“FMLA”) requires companies with more than 50 employees to provide consecutive twelve weeks of unpaid leave for new parents. So even if a company doesn’t offer paid maternity leave, if the company employs over fifty people, a new father can always use FMLA for maternity or paternity leave. (See FMLA Question: Can An Employee Spread Out Maternity Leave?; FMLA Question: Can Daddy Take Maternity Leave?). However, keep in mind, that should you work with your wife at the same company or for the same employer, you may have to split your FLMA time off. The FMLA, at 29 CFR 201(b) provides “Spouses who are eligible for FMLA leave and are employed by the same covered employer may be limited to a combined total of 12 weeks of leave during any 12-month period if the leave is taken to care for the employee’s parent with a serious health condition, for the birth of the employee’s son or daughter or to care for the child after the birth, or for placement of a son or daughter with the employee for adoption or foster care or to care for the child after placement. This limitation on the total weeks of leave applies to leave taken for the reasons specified as long as the spouses are employed by the same employer. It would apply, for example, even though the spouses are employed at two different work-sites of an employer located more than 75 miles from each other, or by two different operating divisions of the same company.” (See Can Both Parents Take FMLA From Same Company For A New Baby? I Need A Lawyer!).
So let’s say that you have only
been at this job for 10 months at the time of your baby’s birth, what other
employment law issues are there?
It’s no secret that many
companies apply a different time frame to maternity leave and paternity leave.
Of course, how much time you can take off for paid leave depends on each
employer. According to a new report, 40 percent of employers now offer some form of
paid maternity leave, up from 25 percent in 2015. While only 14 percent of companies
offer paid paternity leave. This huge discrepancy may come as a surprise to
some, but in the U.S., the simple fact is that men and women are not treated
equally when it comes to childbirth.
As we have previously blogged about, R.C. §
4112.02(A) makes it an unlawful
discriminatory practice for any employer, because of the sex of any person, to
“discharge without just cause, to refuse to hire, or otherwise discriminate
against that person with respect to hire, tenure, terms, conditions, or
privileges of employment, or any other matter directly or indirectly related to
employment.´
Ohio R.C. § 4112.02 states: “Women
affected by pregnancy, childbirth, or related medical conditions shall be
treated the same for all employment related purposed, including receipt of
benefits under fringe benefit programs, as other persons not so affected but
similar in their ability to work.”
Likewise, everyone knows that Title VII of the Civil Rights Act of 1964 and the Pregnancy Discrimination Act of 1978 (“PDA”) similarly prohibit pregnancy discrimination
in employment related matters. But what options do fathers have?
How can a male sue for inadequate and unfair treatment because he is a new father as opposed to a new mother? Well, the same laws that protect pregnant women, also protect men from gender discrimination, including paternity leave. As our employment discrimination lawyers have blogged about before, neither Title VII not Ohio employment law specifically protect a particular gender, but rather simply make it illegal for employers to make employment decisions based on sex. (See Top Gender Discrimination Lawyer Reply: Can Men Win Discrimination Claims?; Can I Sue If My Boss Favors Female Employees Over Male Workers?; Is It Gender Decimation To Post A Job To Hire Women Only?).
So, with this in mind, there may be a gender
discrimination claim if a company automatically grants a women’s request for
FMLA leave or other leave related to her pregnancy or birth of a child, but not
a man’s time off request related to the new baby. Essentially, the questions is
– does my company treat men differently than women? The most recent example
of this type of gender discrimination claim was just filed in Federal Court a few weeks ago.
Two lawyers Mark Savignac and
Julia Sheketoff filed a new claim against their employer, Jones Day, for
violations of Title VII and FMLA. Jones Day, which is headquartered in
Cleveland, Ohio, is the third biggest law firm in the United States. Julia left
the firm shortly before she gave birth. Mark was fired just before his son was
born. The couple complained that the parental leave policy was discriminatory
and that they suffered retaliation because of their opposition to the policy.
According to the Complaint,
“Jones Day’s parental leave policy discriminates on the basis of sex and
imposes archaic gender roles by giving eight more weeks of leave to all women
than to men.” Julia and Mark argued that they wish to share equally in the
responsibility of raising their son and to have equally close relationships
with him, while also maintaining equal focus on their respective careers.
It’s important to note that
both Mark and Julia were exceptional attorneys – according to their Complaint. Before
Mark opposed sex discrimination, he had a bright future at his firm. Mark
graduated magna cum laude (the very top of his class) from
Harvard Law School. He served as a law clerk at the federal court of appeals, a
federal district court and the Supreme Court of the United States. Mark was a
great employee. He was trusted with larger than normal projects for someone in
his position, and consistently received fantastic performance reviews. Mark
claims that he fully expected to be promoted to partner in 2020—just like every
other Supreme Court clerk since at least 2014, had he not complained about the
discriminatory practices. By comparison Julia was equally as talented. She met
Mark while she was a clerk for the Supreme Court of the United States. That’s
absolutely insane. To put it in perspective, we are talking about the best of
the best—Julia and Mark were truly the crème of the crop. (At the end of the
day, a Harvard education won’t take you everywhere, it still takes grit and
determination to be an exceptional lawyer.)
When Mark and Julia found out
they were pregnant in 2018, they were both ecstatic. They both had a dream that
they could play an equal role in their child’s life. Mark and Julia both wanted
to share the responsibilities of parenting 50-50. After finding out about the
pregnancy Julia and Mark emailed human resources about their parental leave.
Under their law firm’s parental
leave policy, biological mothers are entitled to eighteen weeks of paid leave,
but biological fathers are only entitled to ten weeks of paid leave. By
contrast, may peer law firms offer 18 weeks of paid leave to all primary
caregivers on a gender-neutral basis. Jones Day also grants adoptive parents
who are primary caregivers eighteen weeks of paid leave, making biological
fathers the only parents who do not receive eighteen weeks of paid leave when
they act as primary caregivers. Under this policy, employees may also take an
additional six weeks of unpaid leave with the Firm’s approval. Mark and Julia
contend that the Firm looks more favorably upon such FMLA requests when they
come from female employees. The Firm’s policy is clearly one sided. It is
intended to treat female caregivers more favorably than male caregivers
regardless of who takes on the responsibility of primary caregiver. Further,
their policy, like many other companies, completely forgoes the conclusion that
men and women may want to take on caregiving responsibilities in equal shares. It
just reinforces the archaic stereotype that men are breadwinners and women are
caretakers.
In enacting the FMLA—which
entitled both mothers and fathers to twelve weeks of leave to care for a
newborn child—Congress determined that “denial or curtailment of
women’s employment opportunities has been traceable directly to the pervasive
presumption that women are mothers first, and workers second.”
Julia and Mark’s email to HR stated,
“We were looking at the firm’s parental leave policy, and we noticed that the
Firm gives women eighteen weeks of paid leave (and twenty-four weeks total including
weeks of unpaid leave) while it gives men ten weeks of paid leave (sixteen
weeks total).” They further pointed out to HR that while they recognize the
firm has a conservative culture, this discriminatory policy goes too far
imposing those values on its employees. They requested that Mark be given the
same amount of leave as female employees for maternity leave.
The response from HR was a
resounding no. HR refused to grant Mark the same amount of time as Julia even
though he would have just as much caretaking responsibility as Julia. Fearing
retaliation, Mark emailed HR. Mark stated, “Julia let me know that you decided
to reject our request that Jones Day amend its discriminatory parental leave
policy. Thank you for your consideration. Needless to say, I oppose your
practice, which is made illegal by Title VII. You may know that it is also
illegal to retaliate against an employee who opposes discrimination.” Mark was
smart sending this email because he let the HR department know, upfront, in
writing, that he opposed discriminatory practices within the company. In doing
so he built a shield from retaliation as Title VII (much like Ohio
laws) have anti-retaliation provisions that make it illegal to take any action
against any employee because that employee that reported, opposed or
participated in an investigation into what reasonably believed was a violation
of Title VII, which would obviously include wrongful termination. (See Fired
In Retaliation For Reporting Sex Harassment?; Can
I Be Fired For Reporting Racial Discrimination?; What
If I Was Fired After I Reported Race Discrimination?; Fired
For Reporting Discrimination? – Call The Right Attorney; and Who
Can I Sue For Retaliation At Work?).
It’s an interesting strategy
because even though men aren’t currently protected under the Pregnancy portion
of Title VII, basically Julia and Mark are trying to bring one claim as a gender
discriminaiton violation. The firm displayed a clear bias against men when
granting or denying extended leave time. Essentially, women employees who
requested FMLA leave after giving birth or adopting a child, would be
determined “disabled” no matter what the circumstances were. Where men were
often not given the same deference. Men had to prove that they needed the extra
time on FMLA. According to Julia and Mark, Jones Day had a habit of granting
whatever time a woman requested off but would not grant men the same time off
because the men “were not disabled.”
This is clearly a double
standard for their male employees. Working fathers who want to take on larger
care giving roles should be celebrated just as much as working mothers who
chose to juggle a job and family. It will be interesting to see the result of
this case. Even though it is in the beginning phases, our firm will keep you
updated on this story as it unfolds.
Shortly after the sex
discrimination complaint was filed, Jones Day used their own website to post
an attack on not only the lawsuit, but also the two attorneys that filed
it. It appears that Jones Day went out of its way to be petty and vindictive to
publicly humiliate these former employees. Not only does this make Jones Day
look bad, but such public attacks – particularly when not done to other former
lawyers that have left and even taken business with them – wreaks of
retaliation. Our attorneys would be all over amending the lawsuit to add
another count of retaliation based on this juvenile response.
If you are facing discrimination or
harassment simply because you are pregnant or because of your gender, protect
your legal rights — call the right attorney. Under federal and Ohio
employment laws, employers cannot
harass, fire, wrongfully terminate, discriminate against, demote, or wrongfully
discipline an employee just because she got pregnant or a man just because he
wants paternity leave. When you call the right attorney to schedule a free and confidential initial consultation, you will meet with an attorney from Spitz, The Employee’s Law Firm to discuss
wrongful discrimination claims and help you determine the best way to pursue
your gender/sex discrimination claims. Our employment discrimination lawyers
know your rights and will fight to protect them. Call our office at 866-797-6040.
Disclaimer:
The materials available at the top of
this page and on this employment law website are for informational purposes
only and not for the purpose of providing legal advice. If you are still asking
“What should I do if I was fired today”, “how do I get paternity leave from my
job for my new born”, or “Can I sue for reverse gender discrimination”, your
best option is to contact an Ohio attorney to obtain advice with respect to
pregnancy discrimination questions or any particular employment law issue. Use
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