Dad Tobee had been with Acme for a few years now; he had a good job and was able to support his stay-at-home wife and two-year-old son. His wife, Expecting, was nearly six months pregnant with their second child. One Friday afternoon, Dad Tobee left work early to accompany Expecting to the doctor for a checkup. Right away the doctor seemed worried and concerned about Expecting's new baby. It looked as though she would have to remain in bed as much as possible for the remainder of her pregnancy to avoid a premature birth. The doctor assured them, however, that so long as Expecting stayed off her feet, the baby and she would be okay.
During the drive home, the couple talked about how they would deal with the three months ahead. Clearly it would be too much for Expecting to have full responsibility of their son if she were to be resting. Dad Tobee was worried about his wife and wanted to be there for her over the next few months. Because of the circumstances, he decided he would talk to his boss, Big Fish, and request a leave of absence from work.
Unfortunately, Big Fish was not as understanding as Dad Tobee would have hoped. He urged Dad Tobee and Expecting to hire a nanny or find a relative who could help out. He told Dad Tobee that it was not Acme's policy to give a leave of absence to males; they were offered to pregnant women only. Furthermore, Dad Tobee was not the primary caregiver of their son because Expecting was a stay-at-home mother.
Is Acme justified in its actions, or is the company discriminating against Dad Tobee based on his sex?
An academician's response:
There are a couple of issues here. The first is whether Tobee has a legal case of discrimination. I think he doesn't, but I would defer to a legal expert on this.
A second one that jumped out at me is how Tobee would pay the bills if he's on an unpaid leave and his wife is in bed. Let's get real on this one! How about the rent, food, car payments, health care insurance and a bunch of other bills,little and big,that arrive every week or month? Unless Dad and Mom have a bundle stashed in the mattress, three months without a paycheck is going to be tough. And what will happen after Mom gives birth? She still will need help at home. So, does Dad continue not working?
My advice to Dad is to keep working and hire someone to take care of son and Mom. Home care help is fairly inexpensive, and he will have a steady paycheck coming in and, as importantly, he won't jeopardize his job or his family's health care benefits. Dad might work out an arrangement with Big Fish that would allow him to take a day off now and then (he might even use vacation days) to take his son on a little trip or to take Mom some place. This would add a little variety to break up the week.
A third issue is how Big Fish holds on to a competent employee (assuming Tobee fits that category). My advice to Big Fish would be to find some way to help Tobee such as I suggested above. That way, Big Fish gets his work done, Tobee keeps his job and paycheck, and Mom and son receive the care they need.
Professor Homer H. Johnson, Ph.D., Loyola University Chicago
A maintenance management consultant's response:
Acme doesn't appear to be very understanding on the surface. It's not as if Dad Tobee is asking for time off with pay. He's asking for a leave of absence,without pay,and he has a legitimate reason for requesting it.
Although the scenario isn't clear on the exact nature of Tobee's job, perhaps he's a plant engineer or maintenance engineer. Big Fish might be able to help solve this problem by allowing Tobee to work reduced hours and do some work at home. Acme would be getting the work done at no additional cost, and Tobee would be earning money to allow him to hire a part-time nanny to help his wife, Expecting, when he was at work.
However, if Tobee's job was a maintenance supervisor, worked in the trades or held another role that requires him to be present at the plant during his normal working hours, the situation might be more difficult to resolve. The key to this scenario is whether Acme has someone to cover for Tobee while he is out on leave. Also, will business conditions allow Tobee to be on leave for three months without creating significant negative effects on Acme's business? In other words, is business so strong that everybody is working, and overtime is already high to meet business output? If this is the case, then Big Fish is correct in not allowing Tobee to take a three-month leave of absence, for Acme's business must come first.
Bob Steibly, C.P.E., Steibly & Associates
A corporate consultant's response:
More interesting to me than the legality of this issue is the failure of either party to think more collaboratively about the dilemma.
Why approach this problem from an adversarial or "can't do" perspective? For Big Fish to respond in such absolute terms is at best alienating. For Dad to ask Big Fish for such an extended leave with no suggestions for how this could be made painless for Acme was thoughtless. It seems to me that either party could have figured out and suggested any of the following options:
Acme could pay for a nanny, deducting the cost from Dad's paycheck. This way, the Tobee family and Acme both get the coverage they need.
It's not clear from the case description exactly what Dad's job is at Acme. Would it be possible to hire a temp? Has Dad been developing any of his subordinates adequately to stand in for him?
Could Dad work two or three days a week, hire a nanny for the days he's working and use a temp or one of his subordinates to execute his functions on the days that he's at home?
If Acme and Dad would view themselves as partners in this situation, both sets of needs could be met without either feeling as though the other had taken advantage.
Francie Dalton, Dalton Alliances, Inc.
An attorney's response:
Acme may or may not be engaging in sex discrimination. If the company only provides leave to pregnant women and does not provide leave to women who must care for their children due to a family illness, Dad may have no sex discrimination claim. For example, if a female employee at Acme was granted a leave to care for her own children because her mother, the children's normal caregiver, was ill, Acme would violate the sex discrimination laws by not providing Dad with a leave.
Apart from the sex discrimination issue, however, Acme might be in violation of another law, the Family and Medical Leave Act. This law allows either eligible parent to take up to twelve weeks off per year to care for a child with a "serious health condition." On the surface, it does not seem that this situation qualifies, since Dad's two-year-old son is not ill.
However, a recent case addressed a situation in which a male employee requested FMLA leave to care for his three healthy children while his wife stayed with another sick child in the hospital. While this situation also did not involve a father caring for a child with a "serious health condition," the court nevertheless held that FMLA was broad enough to protect this male employee who wanted to take a leave. If this man were legally entitled to FMLA leave, Dad would be covered by FMLA as well.
But beyond the legal requirements, one wonders where Big Fish's sense of empathy may have gone for him to refuse Dad's leave request. Smart employers know that going the extra mile for an employee often is repaid in triplicate by a loyal and stable work force.
Julie Badel, Partner, Epstein Becker & Green, P.C.