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December 15, 2005
Parental leave - mothers and fathers are different
Biological differences between mothers and fathers provide a different twist in this sex discrimination case:
- David and Jennie, parents-to-be, both worked for the University.
- Jennie was allowed to use accrued sick leave to be paid for absences after the birth.
- David was not.
David sued claiming violation of the equal protection clause and Title VII. The 8th Circuit denied the claim. Johnson v. University of Iowa (8th Cir 12/15/2005).
The court rejected David's claim that it was unlawful to distinguish between biological mothers and biological fathers. Here's why:
- Paid leave is granted to biological mothers "due to the physical trauma they sustain giving birth," so this is really a form of disability leave.
- This allows biological mothers pregnancy-related disability leave on the same basis as employees with other disabilities, as is required by the Pregnancy Discrimination Act of 1978 (part of Title VII).
As for adoptive parents, the University allowed both to use accrued sick leave, so David also argued that denying similar leave to him (a biological father) was sex discrimination that violated the equal protection clause. The court rejected that argument because:
- This classification is not subject to "strict scrutiny." Biological fathers are not a "suspect class," and the right to paid leave is not a "fundamental right."
- The proper constitutional test is whether the University had a "rational basis" for its distinction.
- "Adoptive parents face demands on their time and finances that may be significantly greater than those faced by biological parents."
Posted December 15, 2005 by Ross Runkel, Editor at LawMemo, publisher of Employment Law Memo.
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