Should Men Be Allowed Paternity Leave from Work - Essay Example

Should men be allowed paternity leave from work? Should men be allowed paternity leave from work? Introduction Increased feminist activism tend to give women advantage in all fields by creating the perception that women form marginalized group in the society (Oyez, 2012). Though this position is often correct it should not be the basis to discriminating men since all citizens have right to equal protection. Parental leave is constitutional employee benefit stipulated in the federal family and medical leave act (FMLA) 1993. This act provides that an employee is entitled to at least 12 weeks of unpaid leave for any of the following reasons: a) Birth of child of the employee in order to care for such a child b) Placement of child with the employee for adoption or foster care c) To care for spouse/partner, child or parent of the employee provided that spouse/partner, child or parent has a serious health condition d) Presence of serious health conditions that prevent such employee to perform their duties and responsibilities in their employment position e) Any qualifying exigency (Oyez, 2012). Basically, the above explicitly listed reasons for issuance of leave are to allow an employee twelve weeks to care for family member(s) with whom they have primary relation. Another notable item is that women are traditionally entitled for maternity leave to allow them time to a. Recuperate for and rest from the physical, mental and psychological hardship associated with child birth. b. Provide bonding time to spend with the newborn child (Oyez, 2012). The significance of parent bonding of their child cannot be overstated therefore no parent should be denied this opportunity with the assurance that their employment conditions would not be jeopardized. This memorandum seeks to highlight paternity leave issuance as justified provision within the legal jurisprudence of any federal entity. Citing relevant landmark cases issues related to paternity leave have been applied herein. Paternity leave Paternity leave allows fathers to take time away from work and be there for their families. Paternity leaves policies vary among organizations and federal state guidelines. Depending on employment contract this period may be paid or unpaid leave. The employee’s rights are protected while they are on leave. These include right to pay rises, accrue holiday hours, return to work among other changes effected during their absence. Different countries, industries and types of organizations hold different policies in the provision for paternity leave. US have the most stringent policy allowing 0 weeks for paternity leave with minimal adjustment among states and organizations. FMLA provisions have a negative aspect in that they are discriminative to employee working in organizations with less than 50 employees. Definition of the term ‘birth’ according to Black’s Law dictionary as the ‘ complete extrusion of a newborn baby from the mother’s body’ significantly limits the applicability of FMLA(a) on fathers whose partner who have gone through the physical process on taking paternity leave to assist their partners. Though men do not physically participate in the birth process they are equivalent partners in events that lead to the formation of the child naturally. As of that they go through the mental and psychological constrains associated with pregnancy and child bearing. Pregnancy is draining period for both partners especially if they are new parents experiencing rapid adjustments in preparation to facilitate a smooth transition to their new parental roles. It is within the legal legislation for employers to allow paternity leave for their employees in the view of allowing for this adjustment. Adoption and foster care are some modern ways to acquire parenthood. Allowing discriminative leave policies for these parents would amount to violation of Fourth amendment on the basis of genetic deference between parents and child hence making it unconstitutional. Adoption process is legally tasking placing both mental and emotional burden on parents involved. Alongside their female partners men should be allowed paternity leave to recuperate from the process before returning to work. From an analytical perspective, the primary objective of FMLA 1993 was to allow partners to take time to alleviate physical, emotional and psychological burden associated with having new members in their family. An eligible father may be allowed paternity leave to take care of their partner/spouse following delivery especially if accompanied by medical complications such as surgical operation that have further physiological implications. For example, when the child is born through C-section the mother engagement in strenuous physical activities is limited to allow physical healing. Availability of the partner would translate close adherence for this prescriptive measure without compromising health status of both mother and child. In case a partner/spouse suffers medical conditions that lender them inappropriate care giver, the male partner would be expected to take up the role of primary care giver in the family. Apart from the normative and emotional appeal of parental bonding with the child, medical and scientific research indicates a close relationship between bonding and healthy child development psychologically and sociologically. This period serve a significant purpose for both parent and child who need to adjust to new development in the family setup. Both parents are entitled to inherent rights to equal parental responsibilities and access to the child. Is would therefore be inappropriate to differing leave benefits to parents on the basis of their gender as this could be a violation of the Fourth Provision that no person shall be discriminate on the basis of their ethnicity, sex, age, religion among other factors. As of such employers, should take precautionary measure to integrate balance parental leave polices within their employment contract. There are several reasons why employers would preemptively administer such alterations within their internal policies. Business and human resource management research provide empirical evidence supporting the hypothesis that employee satisfaction increases workplace productivity accrued as financial benefits for the employer. Further, employers would avoid expenses due to litigations by employees denied such benefits. As part of community and social responsibility imposed on any business organization to its immediate community and environment, an employer’s image is positively altered through changing society perception. To bring into perspective some case laws have been cited herein to demonstrate how allowing or failure to give paternity leave is interpreted on the basis of the constitution. These cases highlight challenges that may demand to allow for paternity leave impacting on family units. Cases 1. Nevada department of human resource V. William Hibbs, 2002 William Hibbs sought leave from his employer, Nevada HR department to take care of his wife as within the provisions of FMLA 1993 which allows any employee to 12 weeks annual leave incase of onset of ‘serious health condition’ on a spouse or partner. This leave was granted on condition of immediate return to work upon leave expiry (Oyez, 2012). Hibbs failed to report immediately and was fired. His decision the state for monetary compensation for violation of FMLA was dismissed on grounds that the Eleventh amendment (The US Constitution) barred such pursuit of compensation. Hibbs appealed, and this decision was reversed by The Court of Appeal through a 6-3 vote in favor of Hibbs. The court ruled that state employees may recover monetary compensation for damage suffered in the event of federal state failure to comply with FMLA family care provision. This was not covered with the federal state immunity legislated in the Eleventh amendment since issues pertaining to violation of the Fourth amendment of fostering gender-discrimination in administration of leave benefit (The US Constitution). It was considered weighty enough to justify the administration of prophylactic legislation ordering compensation. This case is significant is shaping jurisprudence within federal organizations on their parental and medical leave policies. Although there is limited recent research indicating trends in administration of leave benefits to employees of federal organization women are universally favored by leave policies. The society gender socialization allocates traditional roles such as family care to women while men take up the main role of family provision. There is a general shift from rigid tradition with increased liberalization of the society as observed with sharing of roles across genders (Lexis, 2011). Employment benefits such as parental leave should be revised to accommodate changes due to social dynamism making them more relevant in governing interaction in current society. Male parents are more involved with family care sharing children related responsibilities with their partners. In case of onset of ‘serious medical condition’ that handicaps the partner, such parent would be expected to handle all the roles individually hence the need to allow for adequate paternity leave in both private and public organizations (Oyez, 2012). 2. Ariel Ayanna v. Dechert LLC, 2010 Ariel Ayanna had worked for Dechert law firm from September 2006 to December 2008 before his dismissal. His wife mental condition worsened while she was pregnant with their second child requiring him to apply for leave from work under FMLA act provisions for paternity and family medical care rights. Upon return to work he was unduly dismissed from work on the basis of having gone against the law firm traditions. The plaintiff files a case demanding that his former employer answer to three counts of violating constitutional rights (Gorton, 2012) Propagating gender discrimination through gender biased leave from work policy. This is violation of the fourth amendment which demands that no person shall be discriminated on the basis of personal characteristics such as ‘race, color, religious creed, national origin, sex orientation, genetic information.. .’ (Gorton, 2012). Second count was on disability discrimination pursuant of amendment 4 (16) which provides that an employer ‘ may not dismiss from employment, refuse to hire, rehire or advance in employment or otherwise discriminate against because of handicap, any person alleging to be a qualified handicapped person and capable of performing tasks to the position with appropriate accommodation’ (Gorton, 2012). On this basis, the plaintiff was handicapped by the family condition of having him as the primary caregiver in his family. Appropriate workplace accommodation would enhance his ability to perform his employment duties. However, the decision was the rule against his application making another demonstration of how men are discriminate upon due to legal gaps in the constitutional provisions. 3. Daniel Coleman v. Maryland court of appeal, 2011 Coleman dismissed from work on the allegation of applying for leave for documented medical condition. The court of appeal affirmed the decision by the district court on these allegations on the basis that the respondent was state organization hence having immunity as provided in the eleventh amendment (Supreme Court of the United States, 2011). This decision raised the question whether the national congress constitutionally abrogate states Eleventh amendment immunity (The US Constitution) when passing the self-care leave of the FMLA. The 5 to 4 voting for Maryland court of appeal was argued that the primary objective of the FMLA 1993 was to prevent sex discrimination against pregnant women without further discriminating on other sick persons. Wording in a constitutional provision should not be rigid to social inclusiveness owing to its historical basis but rather flexible to offering optimal service to citizen whom the constitution is meant (Supreme Court of the United States, 2011). Allowing state organizations immunity on issues regarding the first ten amendments constituting the Human Right bill leaves legal gaps that may be negatively exploited to discriminate against employees in such institutions. Private institutions have embraced negotiation as the basis for their deriving employment policies. As of such allowing optimal employee involvement and thus satisfaction leading to higher productivity compared to public institutions. 4. Haward Kevin Knussman and Kimberly Ann Knussman v. state of Maryland and Maryland state police Kimberly Knussman delivered the couple’s first child in December 1994 after which she suffered medical complications. Her husband Kevin Knussmann applied for a family care leave with his employer under the FMLA 1993. However the wife’s condition worsened and he sort to change the conditions of his leave to get 30 days additional leave since his conditions as the primary caregiver in the family demanded his availability (United States Courts of appeal, 2003). He was denied the adjustment on ground that the interpretation of the Act demanded that only women qualified as primary care giver. Delivering the verdict the judge ruled that Knussman was denied leave on basis of his gender which was discriminative. The judge thus ordered that he be paid $ 375,000 in damages compensation. This case delivered significant interpretation that it’s not women who qualify as primary care givers in their families. Congress could have taken an assumption that women are socialized to conduct essential activities within their families. However mean may also be qualified for the same (United States Courts of appeal, 2003). 5. Stanley V. Illinois Joan Stanley and peter Stanley lived together though they were not legally married. When Joan passed on their children were taken away on the basis that their parent had died. The Supreme Court overturned this decision on the basis that the forth amendment provided every citizen with equal protection right (US Supreme Court, 1972). The word ‘parent’ as stated in the Illinois law referred to both mother and father and in absence of the mother the father took full custody of the children. This landmark case has been use to qualify single fathers for paternity leave incase of their children having medical conditions that require their availability as primary care givers. Similarly incase of the mother dying during delivery the father may apply for paternity leave to take care of the child (US Supreme Court, 1972). Implications There is the need to include local amendment at the organizational level to allow employers to receive optimal service from their employees regardless of their gender. Appreciating the impact of social dynamism of today social roles men should feel that their employment benefits are secured without compromising on their terms of employment. This creates workplace cohesion as workers are able to establish required balance between personal and work responsibilities. It remains that the family is the basic social unit despite increased liberalization. Allowing time for adequate parent-child for both mother and father is essential in establishing a cohesive social setup with minimal deviation from ethical conduct. This is especially the case with newborn children who in the sensitive development stage during which acquired characteristics are modeled. Parental leave for both parents allows their availability to socialize their child born naturally or through adoption. Allowing room for emotional, psychological and mental recuperation rejuvenates an employee focus and thus their productivity. Workplace balance is an issue affecting men and not a reserve of women. Decisions about caring for the family are made out of necessity affecting all family members and not just female partners. Affirmative action to reducing the sex discrepancy in length of the leave period allocated to both male and female parents should be taken seriously (Lexis, 2011). The ranges from 0 days for men in USA to with Canada having more attractive policy which allows for 55 percent paid parental leave shared with mother up to 35 weeks. Organization size should not be the basis for leave since employees have equal human rights regardless of the institution they work. setting the minimal personnel capacity at 50 employees leave room for small and medium sized institutions to discriminate their personnel limiting their family involvement especially men who are traditionally expected to sustain work concentration despite their personal situations such as family issues. Constitutional protection of human rights such as right to start a family should be availed to both genders with the objective of developing social inclusiveness. All citizens have a constitutional right to equal protection including protection of their employment benefits. Despite being of different genders, human beings have equal fundamental rights especially in issues pertaining life such as parenthood and right to start a family. These rights should be guarded against violation by both private and public employers without compromising on rights of employers. However such issues are best settled amicably without having to raise constitutional merits of claims as these amounts to extra cost in litigations. Changes in corporate relations have developed dialogue as means to handling workplace disputes especially internal conflicts which are likely to have spillover effect within the entity. Law of tort provides that employers owe a duty of care to their employees hence leaving no room for placements that potentially harm the employee either physically, emotionally, mentally or psychologically (Lexis, 2011). Through dialogue compromise arrangement that serve both employer and employee interest may be reached to achieve sustainable performance. Offering favorable paternity leave policy is one such local arrangement. References Gorton.N. M, (2012). Ariel Ayanna v. Dechert LLP. Retrieved from http://pacer.mad.uscourts.gov/dc/cgi-bin/recentops.pl?filename=gorton/pdf/ayanna%20mtd%20mo.pdf Supreme Court of the United States, (2011). 10-1016 Coleman v. Court of Appeals of Md. Retrieved from www.supremecourt.gov/opinions/11pdf/10-1016.pdf United States Courts of appeal, (2003). Knussman v. State of Maryland. Retrieved from www.ca4.uscourts.gov/opinions/Unpublished/022130.U.pdf US Supreme Court, (1972). Stanley V. Illinois - 405 U.S. 645. Retrieved from http://supreme.justia.com/cases/federal/us/405/645/case.html Oyez, (2012). Landmark cases. Retrieved from http://www.oyez.org/issues/civil_rights/employment_discrimination Lexis, (2011). Labour and employment law: case summaries. Retrieved on 9th April at http://www.lexisnexis.com/search.aspx?q=case%20law%20summmaries Read More