Expert Perspectives: Legal Insights into Josh Levs’ Paternity Leave Discrimination Case

One of the things I love most about this blog is the opportunity it has given me to have conversations with so many smart, knowledgeable people. I have learned more from this blog than anyone, thanks to your comments and willingness to engage and network with me. After I posted my piece last week about Josh Levs and his important paternity leave discrimination suit, I received the following message through Linkedin from blog reader Cynthia Calvert, Esq., who is an expert in work-family employment law.

Work-life law expert Cynthia Calvert

Work-life law expert Cynthia Thomas Calvert

Cynthia was quoted in the NYTimes article about Levs and she believes his case to be stronger than I believed it to be in my analysis last week. After our discussion, I think she’s right. In this case, I’d be very happy to be wrong.

I found our exchange fascinating- it really helped clarify the situation for me, especially in terms of gender discrimination and the difference between parental leave for care versus physical recovery. Cynthia was nice enough to allow me to reprint our back-and-forth here. I think you’ll enjoy it.

Hi, Scott – Great article about Josh Levs. I’d like to explore why you think the case is a long shot – as you know from the NYT story, I think it is a pretty good case. -Cynthia Calvert

Hi, and thanks for reaching out-  Again, I am not a lawyer (but I do have a background in, and teach HRM), but it goes to the definition of “protected class” under Title VII. From what I understand, in general, straight, Christian, able-bodied White American men under 40 are not considered part of that class. Now, employment law is not static, and I suppose one could make a case that gender discrimination in parental leave policies against either men and women is illegal. I just don’t see it under current employment law. You obviously have more expertise in the matter, what are your thoughts? Maybe we can add these as an addendum or follow-up for my blog readers. Finally, the work coming from the Center of Worklife Law has been consistently great. -SB

Thanks so much, Scott. I actually think he has a good shot – here’s my explanation and I’d be interested in your reaction to it. The law is fairly well settled that an employer cannot deny benefits to an employee based on gender. When an employer has a policy that says women can have 6 weeks of maternity leave and men none, that is defensible because those 6 weeks are for physical recovery from childbirth (the accepted standard in the medical community) and thus the difference in the benefits is not based on gender. If the employer’s policy says, however, that women can have 10 weeks of maternity leave and men none, then the employer has strayed over the line and may have legal liability for sex discrimination.

In Josh’s case, the facts are not entirely clear (and, of course, at this point we have only his side of the story). At one point in his blog post, he says that women were given 10 weeks of paid leave and men two, which would mean that women are getting four weeks of bonding leave and men should get the same – if true, Josh wins. In some comments by one of his lawyers later in the post, a further allegation appears, which is that women get six weeks of paid leave under the company’s short term disability policy. If that is added to the 10 weeks of paid leave, then the 6 weeks under the STD policy is the recovery period and the 10 weeks can be viewed as bonding time and men should get the same 10 weeks of bonding time (again, if true, Josh wins). (Note that I don’t think Josh’s comparison of his time to the time an adoptive father receives is a strong argument – there is no law that I am aware of requiring biological parents to be treated the same as adoptive parents.) What is your take on that?

Regardless of the legal obligations, I would think that Josh’s employer would want to offer fathers more time. As your excellent work shows, fathers want to be and should be more involved in their children’s lives, and employers who can meet their employees’ needs will have more loyal, more engaged, less stressed, and more productive employees.

I’m glad to have connected with you – I love your blog. I frequently recommend it as a resource when I’m doing Family Responsibilities Discrimination trainings. (and I train lawyers, employers, and others that men ARE a protected category under Title VII – and I am doing my darnedest to make sure that men’s rights are protected!) -CC

A screencap of the NYTimes article profiling Josh Levs and his stand for parental equality

A screencap of the NYTimes article profiling Josh Levs and his stand for parental equality

I was under the impression that the protected class designation in Title 7 (and in subsequent employment legislation) meant that the historically disadvantaged group based on gender, race, religion, national origin, etc. was protected but that the historically advantaged group was, in most cases, not. For example, a younger job applicant could not file a claim under age discrimination even if they were denied a position based on their age. I understand there are nuances, but I think you are telling me that my current understanding is out of date. In that case, I am very happy to be wrong, and would love to learn more. I wholeheartedly agree that TimeWarner should be more amenable, first from a business standpoint, then from an ethical one. More instrumentally, they should have seen that Levs (a noted fatherhood advocate, well connected in the media world) would use this situation to publicly promote the agenda of fathers and would cause quite a stir, resulting in some bad publicity. I mean, why go to the mat for a policy that, on its face, seems illogical. Finally, I am happy to connect with you, as well, and I hope our paths cross again soon. Will you be at the WFRN conference in June? -SB

Re: Title VII – the protected groups actually don’t have to be historically disadvantaged. It is enough if the protected characteristic was a substantial factor in the employer’s decision. So, men have sued for not getting the same leave benefits as women, Christians have sued because they felt disadvantaged in a Mormon workplace, whites have sued when they felt race-based admissions policies kept them out of colleges, etc. Age is a little trickier because sometimes it is a BFOQ (bona-fide occupational qualification).

But the fact of the matter is that men often don’t sue for sex discrimination, and when they do, they fare miserably. One of the things I do is help plaintiff’s lawyers understand how to litigate the cases and help employer’s lawyers understand how to advise their clients about men’s rights – with the aim of preventing these poor outcomes and changing things for men in the workplace. Here’s a really good article that just came out that explains the situation men face in court. I’d love to meet you in person – unfortunately, I don’t think I’ll be at the conference, but I’m sure our paths will cross at some point given how much our interests overlap. -CC

Thank you, Cynthia! And let this serve as a standing invitation to every reader. If you have something to say, or something you feel I’ve gotten wrong, I’d love to hear from you.

What do you think about these issues? About Josh Levs’ case? Let’s discuss in the comments section

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Cynthia Thomas Calvert is an employment lawyer and a nationally-recognized researcher and writer in the area of Family Responsibilities Discrimination.  She is the principal author of a legal treatise on the topic that is being published by Bloomberg BNA Books next year. She is a senior advisor to the Center for WorkLife Law, which works with employers, employees, lawyers, legislators, agencies, judges, and others to prevent FRD. In addition, she is the principal of Workforce 21C, which provides training and consulting for employers who want to prevent FRD in their workplaces.

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  1. I am a lawyer as well, and I suspect that an argument that women are entitled to longer leave than men because of the biological demands will not pass Constitutional muster. Under the US Constitution, I suspect this will ultimately be seen as first a right of the child, and secondarily a right of each parent vis-a-vis an employer. This means that the biological demands on women in late pregnancy, delivery, early lactation, will be seen as “caregiving” and inherently bonding (for those who call parental leave “bonding time”). The weight of the biological evidence, including from evolution, is that human beings would not have been able to evolve from primates without men doing childcare, including carrying infants around outside their bodies, etc. Our gestation period is shorter, our lactation period is shorter and the time it takes an infant to walk/crawl/climb is longer than for any other primate. Also, there is lots of psychological evidence having to do with the vastly improved child development in families with 2 parents taking responsibility for meeting a child’s personal needs as well as the developmental distortion and even damage to children from families where there is stereotyping in such responsibility.

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