Are you a man who has needed to take a leave of absence from work to take care of a family member or loved one? After asking for leave, did you feel you were treated differently or discriminated against because you requested and/or took leave? If the answer to both of these questions is yes, you have unfortunately learned the answer to the question in the title of this blog.
Despite federal and state laws protecting employees of both sexes for taking leave from work to care for a family member, sometimes men face discrimination when asking for this type of leave. The Hollywood Reporter’s recent article, “Fox Facing Pregnancy Discrimination Lawsuit After Worker’s Sabbatical for Sick Wife,” discusses this potential discrimination faced by Brian Jun.
Jun v. 21st Century Fox
Brian Jun was a tax-planning manager for 21st Century Fox. Mr. Jun asserted that when he requested leave from his boss to take care of his wife who was suffering from postpartum depression, his boss began treating him differently. Upon his return from leave, Mr. Jun claimed Fox retaliated against him and eventually fired him. Mr. Jun sued Fox in California state court, claiming violations of the Family and Medical Leave Act of 1993 (FMLA) and the California Family Rights Act (CFRA). One of the reasons Mr. Jun filed his lawsuit in state court was because California has laws that are more lenient to employees than some federal laws.
Caregiver Protections Apply to Men As Well As Women
Under the FMLA, employers are required to provide employees up to 12 weeks of unpaid leave during the course of a one-year period for them to provide care for their parent, child, or spouse. It also allows for unpaid leave for the employee to take care of a newborn child, a pregnant spouse, or for one’s own serious health condition.
However, just because someone is an employee, that doesn’t mean he or she automatically enjoys these FMLA protections. These protections only apply if the following conditions are true:
- The employee has been working for her or his employer for at least one year,
- The employee has worked at least 1,250 hours over the past year, and
- The employee works at a location where the employer employs 50 or more employees within 75 miles.
Note that the FMLA does not distinguish among eligible employees based on their sex. This means that a man is entitled to FMLA protection, regardless of whether he needs time off to recover from major surgery, provide care to a seriously ill child, or help his wife recover from giving birth.
The Americans with Disabilities Act of 1990 (ADA) is a federal law that that prohibits employment discrimination based on disabilities. While a different law than the FMLA, the ADA can become relevant in caregiver discrimination cases. The ADA has a provision that prohibits discrimination of an employee merely because the employee is associated with a disabled individual or group. This association clause protects employees even if they themselves do not have the disability. So how does this association clause of the ADA affect a male caregiver who claims he has been discriminated against for taking leave? Let’s look at the Jun v. 21st Century Fox case as a basis for a hypothetical. If Mr. Jun can prove that one of the reasons he was fired or otherwise discriminated against was because his boss didn’t like people who suffered from postpartum depression, then Mr. Jun could argue that he was discriminated against because of his association with his wife and that this discrimination was prohibited by the ADA’s association clause.
Lastly, if a male employee is discriminated against for requiring leave to take care of a newborn, yet female employees who seek the same leave are not discriminated against, according to a July 2014 Enforcement Guidance from the Equal Employment Opportunity Commission, that male employee may also have a cause of action under Title VII of the Civil Rights Act of 1964 (Title VII).
You can find additional information about Title VII, the association clause, and ways the ADA and FMLA can interact on the FMLA and ADA Overlap and association clause pages of our website and the EEOC’s website.
Summing It Up
What should I do as a male employee suffering from caregiver discrimination?
As a male employee, you have several options if you believe you’re being discriminated against for asking for leave to provide care to a qualified family member or loved one.
- Check to see whether you are protected by a number of state and federal laws. For example, at the federal level, there are the FMLA, ADA, and Title VII. At the state level, there are probably similar or comparable state versions of these federal laws. For example, the CFRA is similar to the FMLA.
- Remember that after requesting and taking leave pursuant to your rights under the FMLA and other applicable laws, you must be treated equally upon your return. This means you cannot be discriminated against once you resume work. This might include getting fired, passed over for a promotion, or being constructively demoted by being given lesser responsibility at work.
- You can report the possible discrimination to human resources or an appropriate representative in management. Generally, you can follow your employer’s reporting procedures, depending on the facts of the case. Sometimes the person to report discrimination to may be the individual doing the discriminating, so in this rare set of facts, you won’t be able to follow your employer’s reporting procedures perfectly. However, you should follow them whenever possible, as it will make any subsequent legal action easier and hopefully eliminate one of the classic employer arguments: that the employee didn’t properly report the discrimination, so the company can’t be liable for not addressing the discrimination.
Still think you are a male employee who has been a victim of caregiver discrimination? If so, please contact our office so we can talk about your case and legal options.