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Working dads oppose discriminatory scheduling and denial of leave for childcare with mixed success.

April 15th, 2012  |  Lorene Park

Historically, there have been many lawsuits alleging that pregnant women and mothers have been denied equal employment opportunities because of the perception that, as women, they will either shoulder most of the childcare burden or simply put their families first and work second, unlike men. However, two recent cases illustrate that working dads also assert, with varying success, claims based on the same gender-based stereotype that women take on (or should take on) most childcare duties.

For example, in Ehrhard v Lahood (EDNY March 28, 2012), a male air traffic controller, who was denied leave to care for his children, survived summary judgment on his gender bias and retaliation claims. His request was denied while female air traffic controllers were routinely allowed to take leave without pay for childcare purposes. Further, he was required to submit formal requests in writing while his female coworkers were allowed to make verbal requests to their direct supervisors. In denying summary judgment, the court also held that he could pursue his Title VII reprisal claim, which alleged that he was retaliated against in a myriad of ways following his complaints of disparate treatment. Such actions included the employer’s: mandate that supervisors deny any requests by the controller for leave; issuance of a sick leave abuse letter and sick leave restrictions; denying and/or cancelling his requests for leave; shift swaps without justification; prohibiting him from using credit hours towards annual leave or vacation time; and failing to investigate his claims of verbal assault and vandalism. In the court’s view, a jury could reasonably conclude that these actions “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.”

On the other hand, in Kiser v Potter (WDPa April 4, 2012), a male employee with childcare duties who was disciplined for refusing overtime failed to establish his gender stereotype-based claims as a matter of law. Due to his childcare responsibilities and his wife’s fluctuating work schedule, the employee refused to volunteer for overtime without advance notice. He was twice issued a “Notice of Removal” for having refused to work overtime. The first was reduced to a suspension and the second was cancelled in favor of his voluntary resignation. In granting summary judgment for the employer on the sex bias claims, the court pointed out that he failed to demonstrate that the alleged harasser was punishing noncompliance with gender stereotypes. Although he alleged that the employer had a “stated belief” that it was his wife’s duty to alter her schedule to care for their children, he admitted in deposition that he was never told that “child rearing is a woman’s job, not a male’s job.” He also failed to state whether there was a perception at work that males with child rearing duties were treated unfairly. Because he presented nothing more than his speculation and conclusory allegations of discrimination for failing to comply with a gender stereotype, summary judgment was warranted. 

As these cases indicate, an employer is well-advised to develop a policy that describes common stereotypes concerning childcare responsibilities and prohibits disparate treatment based on such stereotypes. In addition, managers should be trained to apply leave policies and respond to requests for leave consistently and fairly without regard to gender. A related topic on caregiver bias and recent developments concerning disparate treatment of workers with caregiving responsibilities was covered in a February 21, 2012 blog.