October 26, 2017

As widely reported in the media, businesses have become more generous with the amount of parental leave offered to employees. At the same time, the number of fathers who do not work outside the home has grown significantly in recent years. The confluence of these two trends may be leading to a new risk for employers: discrimination claims brought by new fathers who believe they have not been offered enough parental leave.

In August 2017, the Equal Employment Opportunity Commission sued Estée Lauder Cos. Inc. alleging that the beauty products company was violating Title VII of the Civil Rights Act and the Equal Pay Act by unfairly preventing new fathers from taking the same amount of time that new mothers receive to care for newborns. Under Estée Lauder’s parental leave program, in addition to paid leave already provided to new mothers to recover from childbirth, the company provides eligible new mothers a further six weeks of paid parental leave for child bonding. Fathers whose partners have given birth, however, are only eligible for two weeks of paid leave for child bonding.

A similar lawsuit was filed in June 2017, when a man working as a fraud investigator at J.P. Morgan Chase & Co. charged the bank with discrimination. According to the employee, the bank presumes that male employees are never primary caregivers of their children and only gives them two weeks of paid parental leave. Mothers, on the other hand, are considered by default to be primary caregivers and J.P. Morgan allows them up to 16 weeks of paid parental leave.

For both companies, this may be another situation in which good intentions can lead to unintended consequences. EEOC guidance establishes that any parental leave offered beyond the time to recover from pregnancy/childbirth must be equally offered to men and women. Employers may unintentionally break this rule as they endeavor to be more “family friendly.” While it is encouraging to see employers become more generous in the amount of parental leave they offer, it may be worthwhile for them to pay attention to changing parenting trends. Numerous studies have reported on the increased time that fathers devote to parenting; these and other surveys have also noted that many women are now the sole or primary income earners for their households. Despite these changing demographics, a recent study by the Society of Human Resource Management shows that while 30 percent of businesses offer paid maternity leave, only 24 percent offer paid paternity leave.

When we advise clients on parental leave, we generally recommend that they offer fathers the same parental leave benefits afforded to mothers, as long as those benefits are not tied to pregnancy, childbirth, or related medical conditions. One common practice is to allow birth mothers six to eight weeks of leave (with language that can allow for additional time off for birth mothers who have a medical necessity), while offering additional parental leave in equal amounts to both sexes. An even more evenhanded approach is to offer more leave for the parent who certifies that he/she is the primary caregiver (regardless of whether the leave is for childbirth or adoption), and less leave for the parent who is not the primary caregiver.

The EEOC has made it clear that addressing sex-based pay discrimination, including benefits such as paid leave, is a priority. And the plaintiffs’ bar may be joining in on the action. With this in mind, employers should pay attention to trends in parenting, anti-discrimination enforcement, and how recent developments are reflected in their parental leave policies.

For more information about how parental leave benefits may affect your business, please contact your Much Shelist attorney.

This article contains material of general interest and should not be construed as legal advice or a legal opinion on any specific facts or circumstances. Under applicable rules of professional conduct, this content may be regarded as attorney advertising.