Oct 09, 2017

Parental Leave

By: Allison Mann

Facebook CEO Mark Zuckerberg recently announced that he would be taking two months of paternity leave after the birth of his second daughter. He has been vocal about Facebook’s generous maternity/paternity leave policies, and the media has taken notice. Outlets such as Fortune, People, CNBC, and the Huffington Post have all dedicated articles to the subject. Many companies allow for leave after childbirth, but those policies come in many different shapes and sizes. Common features of those policies include both paid and unpaid time, are flexible as to the amount of time offered, and the time period over which that time may be used. There is one pitfall that some companies fall into—who is able to utilize a parental leave policy.

The Law:

The Pregnancy Discrimination Act is a federal law that prohibits discrimination on the basis of pregnancy, childbirth, or related medical conditions. The North Dakota Human Rights Act also expressly prohibits discrimination on the basis of pregnancy. Leave related to pregnancy, childbirth, or any related medical conditions may be limited to women actually affected by those conditions.

However, other federal laws require also influence this analysis. First, under Title VII of the Civil Rights Act, parental leave not related to a medical condition must be provided to similarly situated men and women on equal terms. Next, the FMLA requires employers to offer twelve weeks of unpaid leave after the birth or adoption of a child. The ADA may also come into play if the employee is requesting leave to care for a child with a covered disability. In short, an employer must also offer leave to is male employees if leave is extended further than what is needed for recuperation from childbirth. Thus, if an employer offers leave to new parents to bond with and care for the new child it must be available to both men and women.

This is a fairly simple concept, but time and again, companies have run afoul of the rule. The most recent example is discussed below.

Estee Lauder Lawsuit:

On August 30, 2017, the EEOC sued cosmetics company Estee Lauder for violation of the Civil Rights Act and the Equal Pay Act based on allegations that its parental leave policy discriminates on the basis of sex. Estee Lauder’s parental leave policy allows for maternity leave, adoption leave, primary caregiver leave, and secondary caregiver leave. Employees qualifying for maternity, adoption, or primary caregiver leave are given six weeks of paid parental leave and a flexible schedule thereafter. Secondary caregivers are afforded two weeks of paid leave and no flexible scheduling.

In 2015, a male Estee Lauder employee requested primary caregiver leave. Estee Lauder denied the leave on the basis that primary caregiver leave is only available in surrogacy situations. Instead, Estee Lauder asserted that the male employee was only eligible to receive secondary caregiver leave.

The EEOC brought suit. It argued that Estee Lauder’s leave policy is provided for the purpose of bonding with the new child. Further, that the policy discriminates against men because it makes it impossible for a biological father to qualify for six weeks of paid leave. The lawsuit seeks back pay, compensatory damages, and punitive damages on behalf of a class of aggrieved employees, as well as injunctive relief. This lawsuit is still pending in the Eastern District of Pennsylvania.

The Takeaway:

Employers must carefully consider and evaluate any parental leave policy in order to ensure that it meets the requirements of the PDA, Title VII, the ADA, and the FMLA. Specific points to consider and include in any written policy include:

• Differentiate between leave stemming from physical limitations related to pregnancy and childbirth and leave related to bonding with and caring for a new child.
• Ensure that leave not related to a medical or physical limitation is provided to both new mothers and new fathers.
• Address conduct that constitutes unlawful discrimination.
• Review other policies that may limit employee flexibility to ensure that those policies are necessary for business purposes.
• Allow for an employee complaint procedure, and take any complaints lodged seriously.

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(Otherwise known as “the fine print”)

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Reprinted with permission from an article submitted for publication in the October, 2017 Southwest Area Human Resource Association newsletter.