Offering Parental Leave Can Bite You Back

18 November 2013 Labor & Employment Law Perspectives Blog

A recent Equal Employment Opportunity Commission (“EEOC”) claim by a male employee alleging that his employer’s paid time off policy for new parents is discriminatory on the basis of gender is a potential alert to employers that even traditionally “generous” paternity leave policies may run afoul of Title VII. Indeed, although there can be some disparity between what an employer gives to a father and a mother in terms of parental leave policies, the disparity must still comply with Title VII.

Although Title VII of the Civil Rights Act of 1964 does not prohibit discrimination based solely on parental or other caregiver status, it prohibits discrimination on the basis of a protected characteristic such as sex or race. In the case of the employee at issue, his employer’s parental leave policy afforded ten weeks paid time off to women who gave birth and to both women and men who have infants through adoption or surrogacy. The policy, however, afforded only two weeks of paid parental leave to biological fathers.

According to the EEOC, if an employer offers temporary or short-term disability leave, Title VII requires that the employer treat pregnancy and related conditions the same as non-pregnancy conditions. In enforcement guidance, the EEOC also asserts that “while employers are permitted by Title VII to provide women with leave specifically for the period that they are incapacitated because of pregnancy, childbirth, and related medical conditions, employers may not treat either sex more favorably with respect to other kinds of leave, such as leave for childcare purposes.”

In light of this guidance from the EEOC, employers should bear in mind the following:

  1. Employers’ parental leave policies should carefully distinguish between pregnancy-related leave and other forms of leave;
  2. Any leave specifically provided to women alone should be limited to the period when they are incapacitated by pregnancy and childbirth;
  3. An employer will not avoid discrimination claims even if it acted without malice when affording more generous leave to new mothers, when such leave is not specifically tied to pregnancy, child birth or related medical conditions, while offering significantly less to new fathers; and
  4. Employers should review their maternity and paternity leave policies regularly to ensure that these are not out of date and reflect current EEOC guidelines.
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