How the Law Might Protect New Fathers in New York Against Caregiver Discrimination

child and fatherThe United States is one of the few countries in the world that make no legal provision for paid parental leave. Many companies voluntarily offer paid maternity leave, and some also offer paid paternity leave. The issue of providing paid leave for new mothers has received some attention—without much action—in the U.S. in recent years. Allowing new fathers to take time off from work to care for a newborn has not received as much attention. The federal Family Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq., requires covered employers to allow unpaid medical leave in certain circumstances, and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., prohibits sex discrimination in employment. These laws and recent amendments to the New York City Human Rights Law (NYCHRL), N.Y.C. Admin. Code § 8-101 et seq., give new fathers some ability to fulfill their role as a parent without risking their job, but without any guarantee of pay for the time they take off.

A United Nations survey of 185 countries in 2014 identified only two countries with no legal mandate for paid maternity leave:  the United States and Papua New Guinea. Far fewer countries require paid paternity leave. The same UN report found that, out of 167 countries with available data, only 79 require paid or unpaid paternity leave. These range from one unpaid day of leave in Tunisia to 90 paid days in Iceland and Slovenia. Meanwhile, the public discourse in the U.S. surrounding this issue seems to be stuck on questions like whether or not paid parental leave actually constitutes paid vacation time.

The FMLA provides some protection for workers shortly after a child is born. It prohibits employers from denying or interfering with employees’ use of authorized unpaid leave, and it allows employees to sue for damages like lost wages and costs incurred because of a violation. 29 U.S.C. §§ 2615(a), 2617(a)(1). The NYCHRL prohibits discrimination against employees on the basis of certain care responsibilities. N.Y.C. Admin. Code §§ 8-102(30)(a), 8-107(1)(a).

A handful of court decisions offer some ideas of the types of legal relief new fathers might be able to claim if they are discriminated against because of caregiving responsibilities or denied leave that they should have under the law. A federal appellate court affirmed a verdict in favor of a male employee who claimed that his employer denied him parental leave, in violation of the FMLA, after a difficult birth left his wife confined to bed rest. He further alleged that a manager told him that “God made women to have babies,” and “his wife had to be ‘in a coma or dead’ for [him] to qualify as the primary care giver.” Knussman v. Maryland, 272 F.3d 625, 630 (4th Cir. 2001). The court affirmed the verdict against that manager but found that the $375,000 damages award was excessive. Another court found that a denial of “childrearing leave” violated a male employee’s rights under Title VII. Schaefer v. Bd. of Pub. Educ. of Sch. Dist. of Pittsburgh, 903 F.2d 243, 244 (3rd Cir. 1990).

Phillips & Associates’ pregnancy discrimination attorneys represent employees, former employees, and job applicants in New York City, guiding them through the process of asserting their rights against unlawful employment practices like caregiver and pregnancy discrimination. To schedule a free and confidential consultation with a member of our team, contact us online or at (212) 248-7431.

More Blog Posts:

How Title VII Deals with Caretaker Discrimination in New York Courts, New York Employment Attorney Blog, April 6, 2016

How New York City’s Law Prohibiting “Caregiver” Discrimination Differs from State Law Regarding “Familial Status”, New York Employment Attorney Blog, March 10, 2016

New York City Bans Employment Discrimination Based on “Caregiver” Status, New York Employment Attorney Blog, January 18, 2016

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