Nov 10, 2015

Who’s expecting? And what is he expecting?

By: Paul Ebeltoft

Is your company one of the increasing number that offer paid parental leave to your employees? If so, be alert to a new trend in the law: “family responsibilities discrimination” or “FRD”. The term was coined, as far as I know, by the WorkLife Law blog of the University of California Hastings College of Law. FRD is more completely defined by Worklife Law as “employment discrimination against workers based on their family caregiving responsibilities.”

In analyzing whether your parental leave policies meet muster, it is important to differentiate between three distinct types of leave: pregnancy or maternity leave, FMLA leave and parental leave. By definition, maternity leave applies to expectant mothers. In this column you have read about the nuances of the Pregnancy Discrimination Act that may make maternity leave less-than-routine, but HR departments are generally well-versed in accommodating medical issues during pregnancy and those arising when recovering from a delivery. FMLA leave is unpaid leave that employers with fifty or more employees must grant to employees who meet other basic eligibility qualifiers. Eligible male or female employees may take up to twelve weeks of unpaid leave (or must first use paid leave if the company requires) due to birth or adoption of a child or to care for a newborn or adopted child.

Parental leave policies are different. If an employer provides paid leave to female employees after childbirth to bond, as opposed to treat for a medical condition, then the law requires that the same amount of leave be given to male employees who want time with a newborn child or time to help his growing family. To provide otherwise is unlawful.

This was the substance of the charge correspondent, Josh Lev, made against CNN earlier this year. CNN’s parental leave policy gave 10 weeks of paid leave to biological mothers, 10 weeks to parents who adopt, but only two weeks of paid vacation to biological fathers. This policy discriminated against biological dads, Mr. Lev claimed. When the New York Times published an article about the case on September 15, 2015, Mr. Lev had already settled his EEOC complaint against CNN and the settlement terms were sealed. Noteworthy, though, is that CNN has changed its policy to give six weeks leave to all new parents, regardless of gender.

Within recent years, though, as reported in the same New York Times article, entitled “Attitudes Shift on Paid Leave: Dads Sue, Too”, lawsuits by males against employers who refuse to accommodate their roles as fathers are gaining steam nationwide. Is your company at risk?

The risk of bias fatigue

Is there a company orientation program that does not teach its supervisors the need for fair play, regardless of race, gender, religion or national origin? I hope not. Is there a company that does not have a policy to promptly investigate and correct incidents of sexual harassment? I hope not. But in the real world of the HR professional, where there is the possibility that someone will claim that your company’s daily decision-making is harassing, demeaning, discriminatory or retaliatory, there is a risk of overlooking the obvious – a phenomenon I have called bias fatigue. Bias fatigue desensitizes HR professionals to the unfairness of conduct that traditionally has been viewed as acceptable, particularly as it applies to “unprotected classes”. Stated bluntly, the traditional view in many companies has been that men should work. Women should take care of children. That husbands and wives should have equivalent responsibilities and equal paid leave to bond with a child is not a naturally occurring idea. Even if the thought occurs, the possibility of reducing paid leave benefits for women to “pay for” increasing paid time off for biological dads provides another dampening effect. Bias fatigue causes companies to “let this one go.”

The HR task

The CNN case and others by disgruntled fathers who increasingly see their role as fathers first and workers second, have started a ripple that may develop into a tsunami of claims. You, as an HR professional, need to be the bulwark for your company to avoid FRD. Be sure to look at your policies. Speak out if post-birth and work schedule policies do not allow men the same chances as women to take care of family duties.

If there are differences in your parental leave policies, make sure extra leave for mothers is justified by medical necessity. Any paid leave offered beyond the time a mother spends recovering from her pregnancy should be offered equally to both men and women.

Our interest in serving you

My law firm’s goal is to give understandable information and to foster discussion about real-life issues facing human resource professionals. If we are not achieving that goal or if you would like us to address other employment law issues, please email me at pebeltoft@ndlaw.com We promise to take your comments and ideas to heart.

Disclaimers
(Otherwise known as “the fine print”)

I make a serious effort to be accurate in my writings. These articles are not exhaustive treatises, though, so do not consider them complete or authoritative. Providing this information to you does not create an attorney-client relationship with my firm or me. Do not act upon the contents of this or of any article on our homepage or consider it a replacement for professional advice.

Reprinted with permission from an article submitted for publication in the November, 2015 Southwest Area Human Resource Association newsletter.