Congratulations On The Birth Of Your Baby! Now Get Back To Work

Co-authored by Hilary Rau

Thomas* submitted paperwork for eight weeks of paid parental leave, only to be told that paid leave was limited to birth mothers and adoptive parents.

Josh Levs was offered just two weeks of paid leave to care for his premature daughter, despite the fact that biological mothers and adoptive parents were entitled to 10 weeks of paid leave under company policy.

Marco* contacted a lawyer after his boss told him that he could not qualify as a primary caregiver under the employer’s parental leave policy unless his wife could not take care of their new baby.

Thomas, Josh and Marco are not unusual. Even as paid parental leave grows more common, dads too often face discrimination at work when they request time off to care for their newborn and newly adopted babies.

Fathers play crucial roles in their children’s lives, and today’s dads are more involved than ever before: according to the Pew Research Center, fathers in the United States have tripled the amount of time spent with their children since 1965. Yet while many dads are equal caregivers and 9 out of 10 take at least some time off after the birth of a baby, too many employers have leave policies that are stuck in the 1960s. The vast majority of employers in the United States do not offer their employees any paid leave after the birth of a child, and many that do give new fathers significantly less than new mothers. Large employers frequently offer women who gave birth months of paid leave, while offering men (or in some cases, adoptive mothers) only a few days or weeks—if they’re lucky enough to get anything at all.

Refusing to give fathers equal caretaking leave is not only unfair, it is illegal. Title VII of the Civil Rights Act of 1964 makes it illegal for employers to discriminate against employees based on sex. Courts have found that is illegal sex discrimination to give men less leave time than women to bond with their new babies. Although employers are allowed to give more leave time just to birth mothers for their physical recovery, any time given for baby bonding or caretaking must be provided without regard to sex. Some employers’ policies, however, have significant disparities in the amount of leave for mothers and fathers that go far beyond the 6-8 weeks most women need for an uncomplicated recovery from childbirth. Such policies – like those that give women 16 weeks of paid maternity leave but men only two weeks – discriminate by giving mothers and fathers leave on different terms.

Many employers now offer longer amounts of leave to “primary caregivers” and less to “secondary caregivers,” rather than to “mothers” and “fathers.” Does changing the labels actually change whether this is sex discrimination? Hardly. Despite their outward appearance of neutrality, these policies often still discriminate against men, and result in men getting less leave than women. Employers may say “primary/secondary caregiver” but they really mean “mom and dad.” Some employers even discriminate against fathers by automatically assuming that mothers are primary caregivers and fathers are not, requiring dads to provide various types of proof that they truly are a caregiver. One employer advised a new father that could not be considered a primary caregiver unless his wife was “in a coma or dead.”

Leave policies using the primary/secondary caregiver language are still based on sexist stereotypes. The idea that a child must have one “primary” caregiver ignores even the possibility of an equal parenting arrangement, and is rooted in stereotypes that mothers are, or should be, the natural caretakers of children. As a result, many dads have said that they were discouraged from taking parental leave, or cautioned to take no more than a short leave if they cared about their careers. And if a man tells his employer that he will in fact be his baby’s primary caregiver, he may face disbelief or even retaliation. Men who take a meaningful amount of paternity leave can be viewed as “less of a man,” less committed to their careers, weaker, and less ready for that big promotion or assignment. This is also illegal discrimination.

So, what should an employer do? First and foremost, in addition to paid leave for childbirth recovery for birth mothers, offer the same amount of paid baby bonding or caregiving leave to new parents regardless of gender. Second, provide training to supervisors to curb the effects of stereotyped views and make sure that new fathers aren’t facing discrimination simply for wanting to take leave. Whether fathers feel comfortable taking time off will show up in leave usage statistics.

This Father’s Day, let’s celebrate and support active and involved fathers, particularly those who have put their families first in the face of strong social pressure and sexist stereotypes. It is time to do away with antiquated leave policies and give all new fathers fair and equal access to paid leave during the first weeks of their babies’ lives. Companies at the forefront of providing generous and equal paid leave are already reaping the benefits. It is time for the rest of the employers to catch up to the twenty-first century and give dads equal leave for equal parenting.

If you believe that you have been discriminated in the workplace because you took or requested parental leave, or if you believe that you were given less caretaking leave because of your gender, you can contact the Center for WorkLife Law’s free legal hotline at (415) 703-8276 or hotline@worklifelaw.org.

*Not his real name