Fathers bringing claims against their employers for hostile work environments? As strange as it sounds, it may be the next litigation wave to hit companies.
My prediction in a recent article that retaliation against fathers when they ask for or take parental leave can give rise to hostile work environment claims is based on scenarios like the following composites of stories men have told me:
- A man asks for paternity leave and his boss makes fun of him for being soft on babies, and in the following days makes remarks in meetings such as “Mark can’t go on
that trip. He’d rather be changing poopy diapers than getting new accounts” and “What is it now, Mark? Are you going to start crying? Is all this baby stuff going to your head?” and “Forget him. His head is somewhere else.” The boss stops giving him new work, excludes him from group lunches, and tells him that he can forget about his bonus.
- A man returns from paternity leave to find that no one will talk to him. His boss tells him that he let the team down by being gone for so long, and he had better work double time to try to make it up to everyone. He is scheduled to work overtime every night, his direct reports are removed, and he is given impossible sales targets. When he tries to discuss the matter, his boss shuts him down by telling him that no real man would put a baby ahead of work and certainly wouldn’t whine about having to work hard.
Each of these situations could support a hostile work environment claim. To state a valid claim, the negative treatment must: 1) be severe and pervasive enough to change the condition
s of the employee’s employment, 2) create an environment that is both objectively and subjectively abusive, and 3) be because of the employee’s sex.
A few fathers have tried to bring these claims already. Frank DeFranco sued Ametek Ameron for a hostile work environment, alleging that his boss eliminated his reduced-hour schedule – which he had worked for four years so he could take care of his son – and required him to work 40 hours a week plus-overtime. When DeFranco said he could not work those hours, the supervisor demanded that he leave the premises immediately. The court found the allegations were not sufficiently severe to sustain the claim.
The actions a supervisor allegedly took against Noah Nathan were similarly found not to be severe enough when he sued his employer, Takeda Pharmaceuticals America, Inc. Nathan said that he started his day a half hour later than other employees and that when his supervisor found out that it was because he was taking his child to school, his supervisor became highly critical. He required Nathan to start his day earlier, and when he did not, he required him to take additional training and get re-certified to sell certain products – starting an hour earlier than the work day. He was re-certified, but then told he needed still more training or he would be terminated and he sued. The court found that the claims, in addition to not being severe, were not connected to Nathan’s sex, and it granted summary judgment to the employer.
Anthony Marchioli sued Garland Company for hostile work environment after his supervisor allegedly began to find fault with his performance as soon as he announced that his girlfriend was pregnant. His manager told him the situation spelled trouble, that he would be distracted, and that he would have to decide if he was totally committed to his job. He said the negative comments continued until he was fired, even though he was one of only two employees to meet their sales goals. The court dismissed the claim because it found that Marchioli had not alleged that his treatment was sufficiently severe or that it was related to his sex.
These courts appear not to have understood that the underlying cause of retaliation against men like Nathan and Marchioli is gender-based stereotypes. Men are expected to be free of family responsibilities and dedicated to their work simply because of their gender, the same way women are expected to prioritize family responsibilities and not be committed to their work simply because of their gender. Researchers are increasing our knowledge of what causes workplace assumptions about fathers, and future courts may be able to more readily link workplace attitudes toward fathers and gender.
The growing recognition of the importance of fathers’ involvement in family life and the growing desire among male employees to take parental leave and even to work flexibly have fathers running right toward the brick wall of gender-based expectations. If you have any doubt about the depth and breadth of workplace animosity against fathers who want to be full caregivers for their children, or about whether the animosity is based on gender, read some of the comments to the article. Talk to new fathers about their experiences. Watch their supervisors’ frustration, feelings of betrayal, and outright anger. The wave is coming.