Parental Leave Policy Legally Excludes Biological Fathers — Business Management Daily: Free Reports on Human Resources, Employment Law, Office Management, Office Communication, Office Technology and Small Business Tax Business Management Daily
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Parental Leave Policy Legally Excludes Biological Fathers

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It has become widely accepted that working fathers as well as mothers stay home with their children or use accrued time off to attend to childcare matters.  Many employers have followed the trend by implementing paid leave policies that allow fathers to take time off after the birth of a child, just as mothers would.  Some policies, though, exclude dads from the mix while allowing moms and even adoptive parents to take paid leave.  Is this legal?


Father Finds Fault

An employer's parental leave policy gave biological mothers six weeks of disability leave, charged against accrued sick leave.  Adoptive parents were eligible for one week of adoption leave, charged against accrued sick leave.  A male employee who was denied paid time off after his wife gave birth claimed the policy discriminated against biological fathers.

The 8th Circuit Court of Appeals disagreed, finding that the policy did not contain a "biological father exclusion"; rather, it provided benefits to two different groups.  In other words, the employer did not provide these benefits to the employee because he was not a member of either group; it did not exclude him on the basis that he is a biological father.

Biological mothers vs. biological fathers.  Biological fathers are not similarly-situated to biological mothers, who go through the physical trauma of labor.  Thus, the male employee failed to show that gender was the real reason he was discriminated against.

Adoptive parents vs. biological fathers.  The employee's gender claim also failed in this regard because both adoptive mothers and adoptive fathers were entitled to the same benefits.  (Johnson v. University of Iowa, 8th Cir., No. 05-1184, 2005)


Fairness For Fathers, Too

While the employer had good intentions to allow paid leave for moms and adoptive parents, it could have taken those intentions one step further and provided dads with benefits equal to that of moms, or with work schedule modifications (e.g., flex-time, compressed workweeks, temporary switch to part-time hours, job sharing, and telecommuting).

Consider incorporating these father-friendly benefits into your company's family leave policy.  After all, a sense of fairness goes a long way when it comes to recruitment, retention, and employee morale.

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