The birth or adoption of a child is a momentous event in an employee’s life. And an employer’s parental leave policies, or lack thereof, can communicate the company’s values and, if structured incorrectly, its unchecked biases. In particular, employers and their HR teams should be wary of policies that treat male and female employees differently based on outdated and unfounded assumptions about parental roles and responsibilities.

FMLA Considerations: Employers who are subject to the Family and Medical Leave Act (FMLA) must provide up to twelve weeks of unpaid parental leave following the birth or adoption of a child. Under FMLA, parents have the right to take leave from work to care for their newborn or newly adopted child. Employers must be careful not to violate fathers’ and adoptive parents’ rights due to a discriminatory application of FMLA leave.

Sex Discrimination: Parental leave policies that differentiate between mothers and fathers, either explicitly or implicitly, have been under increasing scrutiny. Courts have found sex discrimination when policies benefit women but not men. For example, in July 2018, the Equal Employment Opportunity Commission (EEOC) settled a class-action lawsuit with Estée Lauder that granted new mothers more leave time than fathers. The court determined that providing different parental leave amounts for fathers and mothers violated Title VII of the Civil Rights Act of 1964.

Disability Leave: In 2015 guidance the EEOC recommended employers use policies that distinguish between leave related to pregnancy and childbirth, and leave related to providing care to a child. The agency’s position was that pregnancy- and childbirth-related leave can be limited to birth mothers but childcare leave must be provided to all employees on the same terms. The guidance stipulates that if an employer provides birth mothers with leave beyond the period of recuperation from childbirth (i.e. disability leave), then an equal amount of that leave time must be given to all new parents, whether male or female.

To this end, some courts have upheld policies designed to give pregnant employees preferential treatment, even when the policies did not directly address physical disability related to pregnancy or childbirth. In several instances, the approved policy did not provide any leave to non-pregnant employees.

Policy Versus Practice: It is not enough to espouse gender neutrality in the language of a parental leave policy if, in practice, the policy impacts male and female employees differently. For example, in 2019, JPMorgan Chase settled an ACLU class-action lawsuit filed on behalf of male employees alleging discriminatory application of the company’s parental leave policy. The challenged policy granted longer paid leave to the child’s “primary caregiver” without mentioning mothers or fathers. The dads claimed, however, that the policy discriminated against male employees because the company automatically assumed mothers were the primary caregivers and required fathers to provide proof of status. The suit claimed that the company’s policy discriminated against women and men by enforcing gender stereotypes – specifically, that raising children is female work and men, as the primary breadwinners, should return to work after the birth of their children.

Similarly, in an ongoing suit by two ex-employees (a married couple) against the law firm Jones Day, the couple alleges gender discrimination based on the firm’s practice of granting additional “disability leave” to mothers, even adoptive mothers, some of whom were unquestionably not “disabled as a result of childbirth.” The suit alleges that the company’s practice of permitting the additional leave for women and not men is a policy that imposes “archaic gender roles” and “sex-based stereotypes” by consistently offering women more parental leave than their male colleagues.

Although the outcomes in these types of cases are not yet consistent across the country, awareness around these issues is increasingly widespread. The prudent approach, regardless of FMLA eligibility, is to revisit your parental leave policies and practices. First, if the policies provide any amount of leave beyond the period of recuperation from childbirth, consider revising them to provide the same amount of leave to all new parents. Second, train your administrative or HR staff to ensure that company practice matches the policy language.

If you have any questions regarding this or any other legal matter, please do not hesitate to contact our experienced Atlanta employment attorneys.