By Kathleen J. Jennings (email@example.com)
Yes, you read that right–an expectant father cannot assert a claim for pregnancy discrimination under Title VII of the Civil Rights Act of 196, as amended. And we know this because an expectant father in New York tried to assert such a claim under Title VII and New York law, and the lawsuit was dismissed. (Van Soeren v. Disney Streaming Serv. , S.D.N.Y., 19 Civ. 10196 (NRB), 10/16/20). Not surprisingly, the Court held that Title VII’s prohibition on discrimination on the basis of pregnancy applies to employees who are actually pregnant, and not to spouses of pregnant employees.
Based on the facts alleged in the lawsuit (and the case was dismissed on a motion to dismiss, so we only have the plaintiff’s side of things), the plaintiff, Van Soeren, worked in a pretty toxic work environment. He alleged that various supervisors and co-workers “sham[ed],” “harass[ed],” and “treated [him] differently from all other employees at the Company” as a result of his “familial status vis a vis his spouse’s pregnancy.” For example, before plaintiff had disclosed his wife’s pregnancy to anybody at work, a co-worker said to plaintiff that he “shouldn’t have a kid,” and in another instance stated, within hearing distance of plaintiff, “I don’t know why he [plaintiff] decided to have a kid.” Another employee asked plaintiff whether he had a good reason for having a child. In one instance, presumably once plaintiff told his co-workers that his wife was pregnant, another co-worker sprayed baby powder on plaintiff. When Van Soeren returned to work after paternity leave, that same co-worker allegedly made a comment to plaintiff about still birth and improperly developed fetuses. Charming.
So while the plaintiff’s co-workers were definitely obnoxious, their actions did not amount to pregnancy discrimination against the plaintiff. At best, the plaintiff had a claim of discrimination on the basis of “familial status,” which is not covered by Title VII.
Even though the plaintiff failed to state a claim for pregnancy discrimination, an employer should not tolerate the kind of conduct allegedly directed at this plaintiff by his co-workers. If these folks are making negative comments about children and childbirth to a man, it is likely they may say the same things to a pregnant woman–and that could lead to a valid claim under Title VII. Furthermore, this kind of workplace bullying is not likely to enhance employee morale or productivity.
Keep in mind also that a new father may still have rights under the FMLA or state leave laws if he works for a covered employer.
Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at firstname.lastname@example.org.
©2020 Kathleen J. Jennings
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