Is Your Parental Leave Policy Discriminating Against New Dads?

Employees may be eligible for different types of leave following the birth of a child or placement of a child for adoption or foster care.  There is leave under the Family and Medical Leave Act (FMLA) which provides eligible mothers and fathers with 12 weeks of unpaid leave.  Many employers also offer short term disability leave to new biological mothers to recover from childbirth.  In addition to FMLA and short-term disability, many employers also provide some form of paid parental leave to new mothers and fathers although such leave is not required by federal or most state law.  Employers who offer paid parental leave are required by law to make such leave available equally to new mothers and fathers.  In keeping with this principle, many employers have adopted parental leave policies that provide benefits based on an employee’s status as a primary or secondary caregiver.  While these policies are not discriminatory on their face (so long as they provide new mothers and new fathers the same benefits on the same terms), there is growing concern that some of these policies are discriminatory in practice and both the EEOC and the courts are taking a second look.

Recent Scrutiny

On August 30, 2017, the EEOC filed a lawsuit against cosmetics company, Estée Lauder, alleging that, as applied, the company’s paid parental leave policy unlawfully favors new moms and discriminates against new fathers in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”).  EEOC v. Estée Lauder Companies, Inc., No. 2:17-cv-03897 (E.D. PA).  The policy in question provides paid parental leave benefits based on “primary” versus “secondary” caregiver status, without regard to gender.  Specifically, the policy gives primary caregivers 6 weeks of paid leave (and other flexible leave benefits) while secondary caregivers are given only 2 weeks of paid leave.  According to the lawsuit, when a male employee tried to apply for “primary caregiver” status under the policy after the birth of a child, he was told that new mothers are automatically deemed the “primary caregiver” and that the “primary caregiver” designation only applied to new fathers in “surrogacy situations.”  The EEOC alleges in the lawsuit that Estée Lauder’s policy, as applied, allows a new mother to obtain greater paid leave benefits than new fathers because it prohibits new fathers from applying for primary caregiver status outside of limited exceptions.

J.P. Morgan Chase has a similar paid parental leave policy based on caregiver status and it too is currently subject to challenge.  The American Civil Liberties Union (ACLU) recently filed a class action charge of discrimination with the EEOC claiming that male employees have been discriminated against on the basis of sex by the parental leave policy.  Under the policy, J.P. Morgan Chase provides 16 weeks of paid leave to a “primary caregiver” and 2 weeks of paid leave to a “non-primary caregiver.” The charge alleges that the policy designates female parents as default primary caregivers, making them eligible for a longer amount of paid parental leave than non-primary caregivers.  Specifically, the charging party alleges that when he asked J.P. Morgan Chase to classify him as the primary caregiver, he was told that the bank considers the birth mother the primary caregiver, and the father can only get the extended leave if his spouse returns to work early or is medically incapable of caring for the child.  The ACLU claims the policy is therefore discriminatory on the basis of gender.

While the two cases are still in the early stages, their outcome will provide an important litmus test for other employers.

The Bottom Line

If your company currently provides parental leave benefits based on a primary versus secondary caregiver distinction, now is the time to review your company’s rationale for these distinctions and to ensure mothers and fathers are being treated equally under the policy.  In particular, employers should make sure that there are no assumptions or stereotypes inadvertently “built in” to their policies that assume the mother is always the primary caregiver, while requiring new fathers to take additional steps to prove primary caregiver status. Employers should also be prepared to address how such designations apply if both parents (whether male/female or same sex) claim to be co-primary caregivers.  As discussed above, while these designations appear gender-neutral on their face, there is the potential for them to be applied in a discriminatory manner and so careful review of these policies is important to ensure that they are drafted and implemented on a gender-neutral basis.

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