Like Mother, Like Father: Dads Seek Legal Security
Published: November 23, 2011 (Issue # 1684)
MOSCOW — Father of three Alexei Ostayev is trying to prove that he was fired from his job in circumstances that should be protected under the country’s labor laws.
Ostayev is the only breadwinner for his stay-at-home wife and their children. The children are young — 2, 7 and 12 — and one of them is disabled. Ostayev maintains that Logos-Media, a publishing company, acted wrongly in axing him during a round of layoffs.
He has brought a complaint to the Constitutional Court, which heard arguments in his case just this month, Russian media reported. The basis of his legal challenge: He believes that fathers, especially those with more than one child and with small children, should receive the same protection from being fired that mothers do.
In particular, Ostayev wants the section of the Labor Code that spells out the categories of employees who cannot be fired at the employer’s initiative to be made illegal.
His case is part of a bigger movement. Fathers of small children no longer want to put up with gender discrimination at work, and step-by-step they are winning the parental rights already won by mothers. They have claimed a victory: Two years ago, they won the right to take parental leave, and that has inspired them to fight further.
In 2009 Ostayev became the lead artist for publishing group 777, part of Logos-Media. Almost immediately after the family had its third child, he received notice that he was being fired as part of a company-wide staff reduction.
“They offered me a choice of five other jobs, from janitor to art director of the online department, and I agreed to two of them,” Ostayev recounted. Two days later, however, he was told that the company was eliminating those positions as well.
He then submitted a request for parental leave.
After his dismissal, Ostayev made a discovery about his company’s payroll. “I saw in job classifieds on the Internet that the company was searching for a new candidate for my job — the job hadn’t been eliminated,” he said. “I called work, and they gave me an offer to interrupt my leave, which I did. But on the same day, I was given my notice.”
That was when Ostayev attempted to contest his firing, bringing a lawsuit against Logos-Media in the Savyolovsky District Court, which took the side of his employer.
Current labor laws in Russia only protect single fathers from being fired. If the father is the sole breadwinner for a family with more than one child and with young children, his right to keep his job isn’t protected in any way, Ostayev said.
He brought up counter-examples from European law such as Finland, where the right of a parent in a multi-child family to keep his or her job belongs to the parent who draws the bigger salary.
Dmitry Litvinov, head of the legal department for Bauer Media in Russia, the company that founded Logos-Media, said the Savyolovsky District Court “upheld that Ostayev was let go in accordance with the law, without a violation of any standards.”
“When my wife gave birth [to our third child], they invited me to take leave for one week at my expense, since they didn’t give me the regular leave that I was entitled to,” Ostayev said.
Though fathers have the right to take parental leave under the law, actually receiving that leave from an employer is difficult because of the mentality among Russian bosses, said Igor Serebryany, coordinator for community action at the Father’s Committee. “When a man asks for paternity leave, he is looked at like he’s a Martian.”
Under the law, men and women’s rights are equal and there is no gender discrimination, but such situations suggest otherwise, Serebryany said.
Igor Fedotov, senior attorney at the National Legal Service, said Ostayev puts a difficult choice before the Constitutional Court with his complaint. “On one hand, it is obvious that there is a defect in the Labor Code’s support of gender discrimination against men who have more than one child,” he said. “On the other hand, it is difficult to imagine the consequences of possible legal revenge by the stronger sex in the event that this norm, prohibited by Article 19 of the Constitution, comes to be.”
For the Constitutional Court, however, the more important argument could be the danger of being guilty of gender prejudice — again.
“The European Court of Human Rights characterized as improper the position of the Constitutional Court in the case of Konstantin Markin, who brought a suit in the face of a refusal of military courts to allow him a three-year parental leave,” Fedotov said. “The ECHR determined this was discrimination on the basis of gender,” he said.
According to a hearing document issued by the ECHR, Markin was raising three children by himself post-divorce. His request for leave was turned down because three-year leave is given only to females in the military, the ECHR document said.
Alongside his case in the Constitutional Court, Ostayev is seeking protection from discrimination in the ECHR and has filed a complaint there. Ostayev has a realistic chance of success, Fedotov said: Even if the Constitutional Court hasn’t learned its lesson, there is the precedent of Markin’s case.