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 Employers should review their maternity and paternity leave policies regularly to ensure that these are not out of date and reflect current EEOC guidelines.
This blog is made available by Foley & Lardner LLP (“Foley” or “the Firm”) for informational purposes only. It is not meant to convey the Firm’s legal position on behalf of any client, nor is it intended to convey specific legal advice. Any opinions expressed in this article do not necessarily reflect the views of Foley & Lardner LLP, its partners, or its clients. Accordingly, do not act upon this information without seeking counsel from a licensed attorney. This blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Communicating with Foley through this website by email, blog post, or otherwise, does not create an attorney-client relationship for any legal matter. Therefore, any communication or material you transmit to Foley through this blog, whether by email, blog post or any other manner, will not be treated as confidential or proprietary. The information on this blog is published “AS IS” and is not guaranteed to be complete, accurate, and or up-to-date. Foley makes no representations or warranties of any kind, express or implied, as to the operation or content of the site. Foley expressly disclaims all other guarantees, warranties, conditions and representations of any kind, either express or implied, whether arising under any statute, law, commercial use or otherwise, including implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Foley or any of its partners, officers, employees, agents or affiliates be liable, directly or indirectly, under any theory of law (contract, tort, negligence or otherwise), to you or anyone else, for any claims, losses or damages, direct, indirect special, incidental, punitive or consequential, resulting from or occasioned by the creation, use of or reliance on this site (including information and other content) or any third party websites or the information, resources or material accessed through any such websites. In some jurisdictions, the contents of this blog may be considered Attorney Advertising. If applicable, please note that prior results do not guarantee a similar outcome. Photographs are for dramatization purposes only and may include models. Likenesses do not necessarily imply current client, partnership or employee status.

Related Services