Thursday, June 22, 2017

Parental Leave Policies: Are Yours Gender-Neutral?

Last week, a JP Morgan employee filed a complaint with the EEOC challenging JP Morgan’s parental leave policy. JP Morgan provides up to sixteen weeks of paid parental leave for the “primary caregiver” of a child, and up to two weeks paid parental leave for the “non-primary caregiver.” The employee   claims that when he sought to take sixteen weeks of leave following the birth of his second child, he was told that JP Morgan’s policy considers birth mothers to be the presumptive primary caregiver until the father proves otherwise, with documentation. He was told that he could only be considered the primary caregiver if he submitted proof that his wife had returned to work within sixteen weeks after birth or was medically unable to care for the baby.

JP Morgan’s policy appears to be based on the assumption that women are children’s primary caregivers.  If so, such an assumption is by no means the only gender-based stereotype that impacts employers’ childbirth-related and parental leaves.  Some employers still have “maternity” leave policies that assume women will be disabled for a certain period of time after (or even before) childbirth. Some treat childbirth-related time off as a disability and require the use of sick leave, while others prohibit the use of sick leave for childbirth-related absences. 

EEOC Guidance on Pregnancy Discrimination and Related Issues requires that employers distinguish between leave related to physical limitations imposed by pregnancy or childbirth (“pregnancy-related medical leave”) and leave for purposes of bonding with a child and/or providing care for a child (“parental leave”). Leave related to pregnancy, childbirth, or related medical conditions can be limited to women affected by those conditions (but cannot be treated more or less favorably than other similarly disabling conditions). Parental leave, on the other hand, must be provided to similarly situated men and women on the same terms.  Title VII does not require an employer to provide child care leave if it provides no leave for other family obligations.

In 2015, the EEOC settled a charge with Time Warner, Inc. (parent company of CNN and Turner Broadcasting System, Inc.) in which a former employee alleged that Time Warner’s parental leave policy discriminated against him as a biological father because the policy provided birth mothers and adoptive parents with ten weeks of paid time off after childbirth or adoption but only provided biological fathers with 2 weeks. Time Warner voluntarily changed its parental leave policy to provide all parents with six weeks of paid leave following childbirth or adoption.

The Family and Medical Leave Act also requires equal treatment of men and women. As early as 1999, in an  FMLA sex discrimination case,  a father was awarded damages because he was refused extended leave to care for his newborn daughter.  Under the FMLA, any eligible employee—father or mother—is entitled to 12 weeks of unpaid leave for a new baby. If both work for the same company, the company can limit them to 12 weeks of leave combined for the couple.

In addition to federal requirements mandating gender-neutral leave polices, many states and some municipalities have childbirth and parenting-related leave laws that employers must consider.

Some instances of unequal treatment in leave policies are the result of well-intentioned attempts to attract women employees and emphasize work-life balance. Regardless of motivation, any policy that treats women and men differently risks liability for gender discrimination.  In addition, it’s worth noting that studies show that when a company mandates that women take longer leave than men, those companies are more inclined to hire men over women and are less likely to promote women to leadership. Employers should review their parenting leave, sick leave, PTO, and FMLA policies to make sure that they are not based on assumptions or stereotypes about the roles of men and women in caring for children, or on assumptions about the nature or duration of disabilities related to pregnancy and childbirth.  Two excellent resources to use in that review are the EEOC’s Employer Best Practices for Workers with Caregiving Responsibilities and Enforcement Guidance: Unlawful Disparate Treatment of Workers with Caregiving Responsibilities.

Published by Judy Langevin and Laura Bartlow