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FMLA, Title VII and Male Caregiver Discrimination

Apply both official and unwritten rules equally to men and women to avoid discrimination claims

Posted by Jared Jacobson on February 25th, 2013

Due to the increase in demands on women to begin shouldering a large part of, if not the entire, financial responsibility for a family, many male parents are finding themselves in a primary or at least a larger caregiver role, which was traditionally reserved for the female. This newly added role and responsibility of the working man requires him to work with his employer to gain the necessary accommodation needed to provide him with the time and flexibility to balance his family life with his work life.

Men in Non-Traditional Roles

Men are increasingly reporting that they are finding it difficult to balance this new role when their employer associates the care-giving responsibility with women. When men are not treated equal to women with regard to their requests to take care of a child, for example, and the differential treatment is simply because he is a man, it is illegal discrimination based on his gender or sex. If a male experiences such illegal discrimination, he may file a charge with the Equal Employment Opportunity Commission (EEOC) or local state agency such as the Pennsylvania Human Relations Commission (PHRC).

Right to Care for Family

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Whether an employee is male or female, the laws currently on the books protect him or her from discrimination based on sex or gender including, for example, Title VII of the Civil Rights Act of 1964. In addition to the anti-discrimination laws, the Family and Medical Leave Act (FMLA) is a gender-neutral law that allows a male or female, who is otherwise qualified under the law, to take unpaid leave up to 12 weeks in a one-year period to care for a newborn or newly adopted child, a child, spouse or parent with a serious health condition.

Employer and Employee Responsibilities

Some state laws are even more protective and inclusive of the categories for which they offer protection. In order for an employer to be subject to the federal FMLA law, an employer must employ 50 or more workers (within a 75 mile radius if multiple offices) for at least 20 weeks out of the year.

For an employee to be eligible for FMLA s/he must have been employed by that employer for at least 12 months and have worked for at least 1,250 hours during the previous year leading up to the requested leave.

Right to File

Examples of sex or gender discrimination, e.g., if a female is given FMLA leave but a male is not, or, if it is made more difficult for a male than a female co-worker to take the leave for which he is otherwise equally qualified to take, he may file a discrimination charge at the local EEOC and/or state anti-discrimination agency. Additionally, he may file a complaint directly in federal court under the FMLA for interference and/or retaliation if it occurs. As this is not an easy process and must be done in a very specific way in order to preserve his rights under multiple laws simultaneously, a qualified labor and employment lawyer should be consulted.

Many established companies will have family leave policies even if not subject to the federal FMLA law and be willing to accommodate men and women alike in these changing times of increased care giving by men and women. However, these policies should be applied uniformly, to women as well as to men. If they are not, a gender discrimination claim may be properly maintained against the company.

Employers should be careful to apply all official (written) and unofficial (often unwritten) policies to all employees alike, regardless of what the owners and officers believe to be proper care-giving roles.


Jared Jacoboson
Jared Jacoboson

Attorney and founder of The Law Firm of Jacobson & Rooks, LLC

Jared Jacobson is one of the founding members of The Law Firm of Jacobson & Rooks, LLC. Jared Jacobson represents individual employees and executives as well as counsels employers in conducting workplace investigations to mitigate risks of employment and whistleblower litigation. Jared regularly performs human resource audits to ensure compliance with state (PA, NJ and NY) and federal discrimination, misclassification and wage and hour laws, as well as the risks associated with whistleblowers. Jared helps his clients understand the importance of investing in pre-emptive annual policy audits and work-place training as well as performing a proper investigation when a complaint is filed or threatened which can be invaluable when compared with the alternative.

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