Caregiver Discrimination Against Men

Caregiver Discrimination
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Title VII Applies to Men, Too!

Anti discrimination laws like the FMLA and Title VII of the Civil Rights Act protect both women and men from caregiver and gender-based discrimination. I wonder how many men know that. I’m guessing that much discrimination against men of this nature goes unaddressed. The failure to address discrimination against male caregivers likely stems from societal bias, as detailed in two recent studies. The Boston College Center for Work & Family published a paper  about the experience of today’s working fathers. The study debunks perception by some that the birth of a child will not influence the father in the same way as the mother, and thus the man’s work performance will not be affected.

In February 2013, the EEOC held a hearing on the issue of family responsibilities and pregnancy discrimination. Sociologist Dr. Stephen Benard discussed his findings regarding discrimination against male caregivers. You can read his testimony (http://www.eeoc.gov/eeoc/meetings/2-15-12/benard.cfm) for yourself. In his research, he found that employers reviewing job applicants generally considered men with children in a favorable light, in contrast to women with children. However, other studies cited indicated that this advantage disappeared if the men asked for time off to care for a child or parent.

Below is an excerpt from Dr. Benard’s study.

Discrimination faced by men: An important frontier in work on the motherhood penalty is whether fathers also face discrimination. Our work found that fathers tended to be evaluated as positively or more positively than men without children. However, the evaluators in our studies may have assumed that the male applicants—but not the female applicants—had a partner serving as the primary caregiver for the children. This raises the question of whether men experience discrimination when they engage in caregiving activities. Increasingly, research has begun to explore this possibility. One study (Wayne and Cordeiro 2003) finds that men who took leave to care for a child or an elder parent were seen as worse “organizational citizens” than those who did not take leave. In addition, a study by Rudman and Mescher (forthcoming) finds that men who requested family leave were perceived as weaker, less masculine, and at greater risk for being demoted or downsized. This suggests that the motherhood penalty may be more accurately described as a caregiver penalty. This question is closely related to another issue: perceptions of individuals who use flexible work options.

Mad Men and the Workplace

The Huffington Post published an interesting blog post (http://www.huffingtonpost.com/sherrisnelling/ creating-company-cultu re- for-caregivers_b_3034670.html) by Sherri Snelling about creating a corporate culture supportive of caregivers. Ms. Snelling talks about the increasing number of workers with caregiver responsibilities, sometimes multiple ones for people with both children and an elderly parent or relative to care for. Ms. Snelling advocates for a change in corporate culture so that these needs are recognized and addressed.

I wholeheartedly support that goal. But until that happens—and it has in some places, at least for educated workers—sometimes the best you can do is talk to a lawyer who handles caregiver discrimination about your rights and, if necessary, assert them.

What caught my eye, though, was that Ms. Snelling uses Mad Men as an example of how the workplace was beginning to change in the 1960s and 1970s. For instance, Joan became a partner at her firm at a time when she was raising a child alone. Interesting point. But what this article made me think of was the vanishing archetype of Don Draper. (I started to say vanishing Don Draper, then thought better of it. He is still out there—not so much in sense of the womanizing and drinking, though that still happens—but in the sense of the lone male breadwinner who has a wife at home to do all the heavy lifting with house, kids, school projects, etc. But those men—some women, but mostly men—are not rare. Many of the male partners I know at law firms have a work-at-home wife.)

Case Study

In 2014, it is certainly more common for men to work and have real caregiver responsibilities. These men, either by choice or necessity, have to get home to put dinner on the table, go to the science fair, and so on. These men are increasingly found in the ranks of the corporate world. Sometimes this doesn’t work out so well for them.

Consider what happened to attorney Ariel Ayanna. Mr. Ayanna’s employer, a prestigious law firm, fired him. In 2010, Mr. Ayanna sued the firm in federal district court in Massachusetts. The case is Ayanna v. Dechert, LLP, 914 F. Supp. 2d 51 (D. Mass. 2012). Lawyers suing lawyers: there’s got to be a good joke about that somewhere.

Here are the facts as described in court filings. Mr. Ayanna was an associate in a big law firm from 2006 to 2008, when he was fired. When Mr. Ayanna started with the firm, he had one child and a wife with a chronic mental illness. During his first year, he performed well and received a bonus. The following year, his wife became pregnant with their second child, and her mental health deteriorated. She even tried to commit suicide.

Mr. Ayanna took family medical leave to care for his wife. After their child was born, Mr. Ayanna took four weeks off as paternity leave. When he wife’s condition improved, Mr. Ayanna returned to work, even though he had four weeks of FMLA leave remaining.

When Mr. Ayanna returned to work, he continued to have significant caregiver responsibilities at home for both his children and his wife. After he returned from leave, Mr. Ayanna’s supervising partner began to monitor his work more closely than that of other associates. After Mr. Ayanna’s wife was hospitalized in September 2008, the partner began assigning most of his work to other associates. Later in 2008, Mr. Ayanna received a performance appraisal of “fair.” In December 2008, the firm fired him.

Mr. Ayanna first filed a claim of discrimination with the EEOC and its state counterpart, the Massachusetts Commission Against Discrimination. He later withdrew those claims and requested a right-to-sue letter. (For many discrimination claims, employees are first required to file with the EEOC. If the EEOC fails to resolve the matter within 180 days, which the agency rarely does, the employee can request a letter giving him permission to go to federal court.) Unfortunately, Mr. Ayanna failed to file a lawsuit within the ninety days after receiving his letter, as required under federal law, and thus lost the right to bring some of his claims.

Tip:
Don’t let those ninety days slip by. If you do, you are out of luck, no matter how strong your case is. If you are having trouble finding a lawyer, go to the courthouse and file a complaint yourself. This will stop that ninety-day clock.

His case went forward in federal court on claims of FMLA retaliation and sex discrimination under a Massachusetts law, Chapter 151B. Mr. Ayanna was lucky in that he had a state law to rely on. (Most states, including Virginia, do not have such laws. Fortunately, for employees in the District of Columbia, the D.C. Human Rights Act offers similar protections.) Mr. Ayanna’s FMLA theory was that the partner he worked for routed work away from him and downgraded his performance only after finding out about his wife’s condition, and expected that Mr. Ayanna would need leave. The court found that Mr. Ayanna had produced enough evidence for this claim to go forward.

Mr. Ayanna did not fare so well on his 151B claim. His theory there was that the firm fired him because he did not fit in with firm culture “which he assert[ed] is dominated by a traditional male ‘macho’ stereotype that promotes relegating family responsibilities to women.” Interestingly, the court found that the firm could legally fire Mr. Ayanna because he had caregiver responsibilities. Huh? Isn’t that the point, a company cannot discriminate against someone just because he has a sick child and a spouse with a mental illness? Actually, that’s exactly right. The only thing that is illegal—assuming we are not talking about denial of leave under the FMLA—is if a company treats men and women differently. This firm treated men and women the same. That is, as the court noted, the firm fired both men and women who had caregiver responsibilities. Here’s what the judge said:

At most, the record suggests that [the partner] may have disfavored him because Ayanna prioritized his family over his employment responsibilities. While those facts suggest Ayanna may have been terminated because of the time he allotted to his caregiving duties, Chapter 151B does not provide protection for employees based on their caregiver status alone. Because Ayanna has proffered no evidence that his termination was based on his gender, Dechert is entitled to summary judgment on this count.

So, an employer is entitled to favor employees who prioritize work over family. The employer just cannot make the decision based on gender. This case might have turned out differently if the firm had not fired women associates with caregiver responsibilities. Those facts would have supported the notion that the firm was making a decision based on a gender stereotype —that is, that women can take time off for caregiving, but men should no —rather than simply preferring those who prioritize work over family. Welcome, Don Draper. You are our kind of man! Actually, we mean: Welcome, Don Draper and Peggy Olson. You are our kind of people! Note, however, that the firm would have run into trouble if it denied FMLA leave to both men and women just because they had caregiver responsibilities. The FMLA expressly prohibits that kind of discrimination. See, I told you that you needed a lawyer.