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Gender Stereotypes Run Afoul Of Parental Leave Laws

Employer Cantor Fitzgerald's parental leave policy states that birth fathers receive two weeks of leave, but "single parents" or primary caregivers can take eight additional weeks of leave. The policy also allegedly requires fathers to provide an affidavit to prove their primary caregiver status, although birth mothers are not required to provide any proof.

The former co-head of the employer's equity options desk alleges that the organization's parental leave policy is based on gender stereotypes that women are always primary caregivers and that it is biased against men. He is suing the employer for unlawful termination in violation of the federal Family and Medical Leave Act and for discrimination.

According to complaint, on March 29, 2018, the plaintiff's second child was born with complications after his wife had a C-section. His wife had to recover from surgery and his newborn required serious medical care, meaning the plaintiff needed longer than two weeks of leave.

On April 5, 2018, he allegedly wrote human resources to inquire about his leave and inform them of his primary caregiver status. According to the lawsuit, human resources did not reply.

According to the complaint, the plaintiff returned to work on April 23, 2018. However, from April 26 through May 1, he had to take additional leave because his daughter had a medical emergency. On May 6, he notified his manager that he would be late for work the next day because he had to take his wife and newborn to a medical appointment.

On May 14, 2018, the employer allegedly notified the plaintiff that he would be terminated effective June 15, 2018. The organization claimed it could "no longer afford his salary." However, it is purported that he had recently received a $50,000 raise. In addition, the other equity options desk co-head earned more than twice the plaintiff's salary and retained his employment.

The plaintiff alleges the reason for his termination was pretextual and retaliatory, and that the employer terminated him for questioning its parental leave policy and taking more than two weeks of parental leave. He claims he was eligible for FMLA leave but no one told him of his FMLA rights or granted him his FMLA rights. 

The plaintiff alleges the employer willfully and egregiously violated the FMLA, including its anti-retaliation provisions. He further alleges that the employer violated New York State and New York City anti-discrimination laws by discriminating against him on the basis of his gender, marital status, and familial status. Wenzel v. Cantor Fitzgerald & Co., U.S. District Court for the Southern District of New York (Case number 1:20-cv-03753) (Complaint and Jury Demand filed May 14, 2020).

Commentary and Checklist

Men and women are entitled to workplace benefits, such as leave, without regard to their gender.

Family employers should examine their leave policies for evidence of the use of gender stereotypes. A stereotype is a fixed, over-generalized way of thinking about a group of people. For example, thinking women are always the primary caregiver can lead to discriminatory practices, such as drafting a leave policy that provides more leave to new mothers than to new fathers.

Workplace rights are individual rights, so any use of stereotypes will most likely run afoul of EEO laws.

Parental leave is one of the main areas of risk for gender discrimination. Although parental leave under the Family and Medical Leave Act applies to employers with 50 or more employees, many states have parental leave laws that apply to employers with just a few employees.

Here are some parental leave best practices for family employers to consider:

·      Avoid policies that only provide paid leave to mothers or “primary” caregivers.

·      Make sure bonding benefits apply equally to both men and women and to those who give birth, adopt, or foster a child.

·      You can require staff to work a certain amount of time before they can use paid parental leave; however, make sure you enforce your requirements uniformly to avoid charges of discrimination. 

·      If you have 50 or more employees, you must allow up to 12 weeks of job-protected, unpaid federal Family and Medical Leave Act (FMLA) leave to an eligible employee. Be aware that some states allow similar leave and require employers with fewer than 50 employees to comply.

·      Always check with your local legal counsel about leave decisions and the drafting of policies. Your state may require you, even as an employer of just five employees, to grant family-related leave.

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