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Is short paternity leave a form of gender discrimination?

Pregnancy discrimination can take many forms. Women can be denied job security if they take maternity leave, they may be passed over for promotions or other opportunities for choosing to have children or they may be denied reasonable accommodations that will enable them to do their jobs throughout their pregnancies. At its heart, pregnancy discrimination is a form of gender discrimination. A recent lawsuit questions whether men seeking equitable paternity leave are also victims of gender discrimination.

Under the Family Medical Leave Act (FMLA), men and women may take a certain amount of time away from work for certain family-related life events and personal health issues. One of the protected life events is the birth or adoption of a child. However, employers are not required to pay employees for their time away. Many companies opt to pay women on maternity leave and an increasing number are paying fathers on paternity leave. However, fathers are generally granted far shorter paid leaves than mothers are.

The new suit was filed by a man who insists that his employer’s parental leave policy discriminates against men by only granting them two paid weeks of leave in comparison to the 10 weeks of paid leave that the employer grants to new mothers. The case gets even more complex when readers learn that adoptive fathers also receive 10 weeks of paid leave under the employer’s plan. The case then is not one of discrimination based on gender but against biological fathers specifically.

The law may only explicitly protect certain parental leave rights. But it is possible that discriminating against a certain group of workers in practice may be considered illegal behavior. It will be interesting to see how this case and cases like it help to evolve parental leave law over time.

Source: New York Times, "Standing Up for the Rights of New Fathers," Tara Seigel Bernard, Nov. 8, 2013

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