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Josh Levs, a reporter at CNN who is challenging his employer’s parental leave policy, held his newborn daughter outside his home in Atlanta.

Kendrick Brinson • New York Times,

Newborn's father takes on Time Warner over parenting leave policy

  • Article by: TARA SIEGEL BERNARD
  • New York Times
  • November 16, 2013 - 2:00 PM

Josh Levs, father of a new baby girl, emerged from his sleep-deprived stupor last month to take a stand: He is challenging his employer’s parental leave policy on the grounds that it discriminates against biological dads.

This was his third child, and this time around, he said he felt compelled to take action. So Levs, a reporter at CNN, filed a charge with the Equal Employment Opportunity Commission against Time Warner, his employer’s parent company.

He took his case public on his Tumblr page, where he laid out his reasoning: Birth mothers are entitled to 10 weeks of paid leave. The same policy applies to both men and women who adopt or have children through a surrogate. Biological fathers, on the other hand, receive only two paid weeks.

He said this left him with two choices: stay home for a longer period of time without pay or go back to work and hire help. “Neither is financially tenable,” wrote Levs, who lives in Atlanta, “and the fact that only biological dads face this choice at this point in a newborn’s life is ludicrous.”

It was a gutsy move, particularly when there was a new child to feed. Time Warner declined to elaborate on the specifics of the case, though, on the surface, it appears to treat biological fathers as second-class parents compared to their peers. But what’s fair and what is discriminatory under the law are two different matters (we’ll get to those issues in a minute).

Time Warner’s policy does happen to be more generous than that of many American employers, but the bar is pretty low. Most employers don’t provide any paid paternity leave (a study conducted by the Society for Human Resource Management that polled human resource professionals found that a mere 15 percent of companies offered paid paternity benefits).

But more workers may be starting to do more than quietly grumble about the policies, according to discrimination lawyers, researchers and legal experts who run a workplace discrimination hot line. More employees — particularly men of the millennial generation, whose oldest members are in their early 30s — are filing complaints against their employers, these experts say.

“What is happening is the new work-life pioneers are young egalitarian men exactly like this guy,” said Joan Williams, founding director of the Center for WorkLife Law at the University of California, Hastings College of the Law. “In many ways, these younger men are acting in ways that mothers have always acted: ‘I have family responsibilities that aren’t going away and either you accommodate them or there is going to be a fight against it.’ In many ways, this is economic contraction fueling gender equality.”

There aren’t any federal laws that explicitly prohibit discrimination against workers with family responsibilities, but some states and municipalities have more specific protections. The type of claim filed by Levs is brought under Title VII of the Civil Rights Act of 1964, enforced by the Equal Employment Opportunity Commission, which prohibits employment discrimination based on sex. Mothers who claim they were treated differently from men with children file claims under the law, and so do fathers who say they were denied leave or benefits available to women.

That’s generally what Levs is contending. “If I gave up my child for adoption, and some other guy at Time Warner adopted her, he would get 10 weeks off, paid, to take care of her,” he wrote on his Tumblr page. “I, however, the biological father, can’t.”

It’s hard to predict exactly how the commission will view his claims. But Justine Lisser, an EEOC lawyer and spokeswoman, offered some insight into what may be considered sex discrimination in a hypothetical situation. It’s not necessarily wrong, for instance, if women were given a certain period of paid leave to recover from pregnancy and childbirth, while men (and women) were also entitled to the same period to recover from other medical conditions.

But it would be considered sex discrimination to give women paid time off to care for a newborn, but not give the same time to men. It would also obviously be wrong to have such a policy on the books, but then penalize men for using it. “We see this in some caregiving cases,” she said. “Women are presumed to need caregiving time off, but men are presumed not to be invested in their jobs if they want to take the same time for the same reason and are either denied it or demoted after using it.”

Levs’ lawyer, A. Lee Parks Jr., a civil rights lawyer in Atlanta, acknowledged that the policies could (and potentially should) be different for men and women. “The bizarre thing here is they give a significant amount of time if you are a certain type of parent,” he said. “So, they made a value judgment that, in those situations, that there is really a period where you need to bond.”

If you’re curious about the legality of your company’s policy, legal experts said to look at it as a breakdown of recovery time and bonding time. “Men should get the same bonding time,” said Cynthia Calvert, a senior adviser on family responsibilities discrimination at the Center for WorkLife Law.

© 2014 Star Tribune