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Thursday, September 09, 2010

SR: Paternity/Maternity Leave

Dear Evil HR Lady,

My company does not have enough employees to qualify for FMLA. However, they are generously letting me take 14 weeks of maternity leave (2 weeks paid, the rest unpaid). We are in a highly male dominated industry. There are several male employees who’s wives are due to have children around the same time as me and the company is only allowing the male employees to take a maximum of 2 weeks PTO. While I can see the difference in these situations (especially being the female and the one actually giving birth!), I’m concerned that this could be viewed as a discrimination issue, since we are treating male and female employees differently and we aren’t having to abide by any federal legislation. Thoughts?

I don't know for sure what the legal ramifications of this are. Surely allowing women to take the 6-8 weeks off is okay because giving birth necessarily means you are "disabled" for that time period. But, allowing more time where you aren't "disabled" and making it based on gender could be problematic.

If it were me, I'd allow both male and female employees the 12 weeks of leave. Chances are, very few men will take the leave, so the company doesn't lose anything and they are protected from a potential discrimination lawsuit. Of course, someone will pipe up that men in Sweden all take time off now, but they also get paid leave.


Anonymous said...

The OP is correct regarding liability. The business is making a mistake.

There are federal cutoffs for which size businesses are liable under the FMLA. There are usually similar state cutoffs as well, for a limited number of state laws.

However, most state laws have no size cutoffs. And there are no size cutoffs for a straightforward discrimination case brought under state law. If the business is treating male and female employees as you describe, they're setting themselves up for a lawsuit when a man applies for (and is denied) leave.

That said, since the OP is benefiting from the discrimination, she may not want to bring it up. The most likely outcome of "doing it right" is that NOBODY (including the OP) will get leave, or that everyone will get minimal (3 weeks) leave. If I were advising that business, I would tell them not to give leave to anyone, rather than to give it only to women.

However, the OP may be in a role such as HR where she has some responsibility for spotting this stuff. Or, she may believe that the company will go out of business if they're sued--that's bad for her. Or, she may worry that there will be backlash against her if the issue comes to a head (i.e., "If she hadn't asked for all that leave we wouldn't have been sued!") which is irrational but still quite possible. Or finally, the OP may be in a position where the long term benefits of being seen as a "team player" are worth more than extra unpaid leave.

In any of those situations, the OP may be better off addressing the fact with management. before she beings it up she should think about what solutions she will propose.

Anonymous said...

It seems your organisation is conscious of the legal implications you are raising in this blog and that is the reason for ensuring that both male and female are paid only 2 weeks ( without discrimination). However, in your own case, you are the one in confinement and as you have rightly observed, a pregnant female employee would need more time to take care of her health, ensure the well-being and health stability of the baby before returning to her job, hence, the disparity in the number of weeks of leave granted to male and female. You seem to assume so much that men would not be willing to take the 12 weeks leave if such is statutorily granted to them. It all depends on the situation in various homes and the closeness between the spouses. Some men would rather stay at home with their wives rather than go to work.
You should kindly accept the situation as it is. Best Wishes.

Mike said...

Last time I checked, it takes two to make a baby.

One thing I think EHRL forgot to mention is that letting everyone have the time off is the right thing to do. Besides the legal implications she mentioned, it avoids a great deal of animosity between coworkers, improves morale and shows that the employer cares about their employees.

That in and of itself in this stressful economic time can really pay dividends down the road when times get better.

How many employees can say, "You know what? I may not have the highest wage out there, but my boss went the extra mile when my kids were born".

TheLabRat said...

Just because the dudes aren't "disabled" doesn't mean they don't have good reason for taking the time off. Many take the time off to stay home and care for the baby because the wife is returning to work right away. How do managers seriously not realize this these days.

Class factotum said...

Last time I checked, it takes two to make a baby.

True, but it only takes one to gain 50 lbs, throw up every morning, get stretch marks and varicose veins and then push a watermelon out of a tiny hole. :)

PS animosity between coworkers

Really? There are men who would be ticked off that they did not get paternity leave even though their physical effort was over nine months ago?

Mike said...

@Class -

There are fathers that are upset they don't get to put their new families first because they have a manager that has yet another "emergency" to deal with.

Face it employers - unless you work in a field that deals with life and death your business means nothing compared to the folks at home. Get used to it/

Anonymous said...

Welcome to the real world ! You people have it so nice these days and you still complain. Try surviving this in the 90's !

AgriturismoFan said...
This comment has been removed by the author.
AgriturismoFan said...

In addition to providing equal maternity/paternity leave, another idea that is considerate of employees going through child birth is to provide a gradual return to work. In other words, have them start out part time, and gradually increase their workload until they are back to where they were prior to the baby.

Anonymous said...

I am thankful that I live in Ontario, Canada. Here both biological and/or adoptive mothers and fathers are entitled to both Maternity leave (17 weeks) and Parental leave (35 weeks).

However parents must split the leave time they cannot both be off at the same time.

Maternity and Parental leave applys to all Ontario employers, regardless of size.

Angie Echoles said...

The data on paternity leave shows that despite the enactment of federal and state laws allowing men to take parental leave, few actually do.

Angie Echoles said...

The data on paternity leave shows that despite the enactment of federal and state laws allowing men to take parental leave, few actually do.