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Can men be fired when they have children?

On Behalf of | Nov 30, 2020 | Employment Law

“You shouldn’t have a kid,” said Steven’s co-worker at Disney. He wasn’t the only one to comment.

When Steven returned from his two weeks of paternity leave, he was fired. He sued, but a federal court dismissed his case. The reason? The court said the firing didn’t count as unlawful pregnancy discrimination because it had been Steven’s wife, not he, who had been pregnant.

That court may have been wrong, or at least an outlier. While, on its face, it seems like pregnancy discrimination laws would only protect women, the very same reasoning applies to men who take time off for a new child. In 2003, the U.S. Supreme Court noted that denying paternity leave or discouraging men from taking it would force women to continue in the role of primary family caregiver.

To deny paternity leave, then, is to go against the interests of women as well as those of men.

The federal Family and Medical Leave Act (FMLA) generally provides parents with up to 12 weeks of unpaid leave to care for a new child, to care for a serious medical condition, or to care for an immediate family member’s medical condition.

Yet discrimination against caregivers does happen. People face retaliation for requesting or taking FMLA leave even though such retaliation is illegal.

In Steven’s case, he also claimed that Disney violated his FMLA rights when it fired him for taking paternity leave. The court that heard his case ruled that he had been allowed to take the paternity leave “without incident.”

Our anti-discrimination laws were meant to provide equal opportunity for workers regardless of their gender, race, color, religion, age (40 and over) and disability.

What does equal opportunity mean?

Currently, women are suffering through an extremely unequal recession. Of the 1.1 million workers who left the workforce in September of this year, 80% were women. Many had no alternative but to drop out in order to care for their children who weren’t in school. Most couples who had a choice chose to preserve the salary of the higher-earning spouse, which is still generally the husband.

When women are the sole or primary caregivers for children, women’s ability to work for equal wages suffers.

Ruth Bader Ginsburg once said that “women will only have true equality when men share with them the responsibility of bringing up the next generation.”

So, can men be fired for caregiving?

Steven’s case against Disney may be an outlier. It seems likely that both the Pregnancy Discrimination Act and the FMLA prohibit retaliation against men who take time off to care for their children. Nevertheless, caregiver discrimination is real and relatively common for both men and women.