Many employers interested in promoting a family-friendly workplace want to offer new moms and dads paid time off for parental leave. But they need to keep discrimination concerns in mind if they plan to offer moms more “parental” time than dads. Recently, a group of attorneys was asked about the legality of an employer’s idea to offer new moms 80 hours of paid leave while offering new dads just 40 hours of paid time. The attorneys advised the employer that it had better be careful. 
“Parental leave must be provided equally to men and women,” Kaitlin L. Hillenbrand, an attorney with the Steptoe & Johnson PLLC law firm in Bridgeport, West Virginia, says. That doesn’t mean, however, that new moms can’t be offered more time off than men. Employers are within the law if they provide medical leave related to recovering from pregnancy and childbirth to just moms, but any leave designated for bonding with and caring for a child needs to be offered to men and women on equal terms.
Of course, employers aren’t required by federal law to offer any paid time off, but employers desiring to offer the benefit need to make sure they don’t fall into sex discrimination by allowing women more paid time off than men if that time isn’t related to the physical recovery from pregnancy and childbirth.
Title VII of the Civil Rights Act of 1964 mandates that covered employers, those with at least 15 employees, can’t discriminate on the basis of sex. Hillenbrand points out that the Equal Employment Opportunity Commission (EEOC) has guidelines stipulating that employers need to distinguish between “leave related to any physical limitations imposed by pregnancy or childbirth”—leave the EEOC calls “pregnancy-related medical leave”—and “leave for purposes of bonding with a child and/or providing care for a child”—leave the agency calls “parental leave.”
So it’s legal to offer medical leave to women on top of any parental leave offered to both men and women, but Hillenbrand says parental leave must be extended “to similarly situated men and women on the same terms,” according to the EEOC.
Hillenbrand advises the employer that to avoid discrimination claims, it “should provide a set amount of parental leave that applies equally to men and women,” but that doesn’t prevent the employer from offering more paid time off to a new mother to recover from pregnancy and childbirth.
Ryan B. Frazier, an attorney with the Kirton McConkie law firm in Salt Lake City, Utah, agrees that employers must offer leave to bond with a new child to mothers and fathers on equal terms and points to EEOC guidance issued on July 14, 2014, that says “employers should carefully distinguish between leave related to physical limitations imposed by pregnancy and childbirth … and leave for purposes of bonding with a child and/or providing care for a child.”
Both Frazier and Hillenbrand also remind employers to keep the federal Family and Medical Leave Act (FMLA) in mind. Employers that are covered by the FMLA must allow their employees who are eligible for FMLA leave—both moms and dads—up to 12 weeks of unpaid time to care for and bond with a new child.
“Under the FMLA, employers with 50 or more employees must provide 12 weeks of leave during a 12-month period for a number of reasons, including the birth of a child and the placement of a child with an employee for adoption or foster care,” Hillenbrand says. “The FMLA applies equally to female and male employees, but leave doesn’t have to be paid.”