I am often asked to recraft a company’s parental leave policy, usually in response to an employee seeking leave for the impending arrival of a new family member that falls outside the company’s current medical disability policy (e.g., an adoption). The employer wants to be generous and provide adoptive parents the same leave it provides other employees who give birth to new babies—but without opening the floodgates to male employees taking “excessive” parental leave.
So what’s the problem? Parental leave policies that are unrelated to a medical disability due to pregnancy or childbirth must be gender-neutral. The Equal Employment Opportunity Commission’s (EEOC) recent $1.1 million settlement of ongoing litigation over Estée Lauder’s allegedly disparate parental leave practices provides an example of the type of policy to avoid.
What Was the EEOC’s Issue with Estée Lauder’s Policy?
Estée Lauder had a policy that provided “primary caregivers” more leave than “secondary caregivers” were entitled to. Primary caregivers were given six weeks of paid parental leave (after any medical leave related to pregnancy or childbirth), while secondary caregivers were allowed only two weeks of paid parental leave. The policy also afforded new mothers different return-to-work transitions than new fathers. New mothers were offered modified work schedules, while new fathers were not.
On its face, Estée Lauder’s policy was well written. It didn’t make distinctions between “maternity” leave and “paternity” leave, nor did it distinguish between employees on the basis of their sex. Nevertheless, the EEOC alleged that the problem existed in practice. Male employees were told that they weren’t eligible for primary caregiver leave and that it applied only in “surrogate” situations. Female employees were automatically granted primary caregiver leave following their medical leave related to pregnancy or childbirth.
In May (prior to the settlement in late July), Estée Lauder changed its parental leave policy to provide employees 20 weeks of parental leave, regardless of their gender.
What Should Employers Do?
You should review your parental leave policies to ensure they don’t discriminate against employees on the basis of sex. “Maternity,” “pregnancy,” or “childbirth” leave should be covered as part of a short-term disability policy or a medical leave policy and limited to the period of a medical inability to work preceding or following childbirth. Parental or child-bonding leave should be gender-neutral. Ideally, it should be offered to all employees, regardless of their parental role.
A second approach, which is more likely to raise eyebrows at the EEOC, is to create a primary and secondary caregiver leave program under which primary caregivers are granted longer paid parental leave than secondary caregivers. In this type of policy, “primary caregiver” status is awarded only if an employee’s spouse or partner is not at home assuming childcare duties at the same time as the employee. However, you must be careful to avoid building assumptions into the policy about who the primary caregiver will likely be. For example, male employees shouldn’t be subject to greater scrutiny or more certification requirements for taking parental leave as primary caregivers. Further, paid primary caregiver leave shouldn’t be automatic for female employees.
It’s important to note that many states and localities have statutes and ordinances requiring paid or unpaid leave that may set a floor for parental leave programs. In addition, the federal Family and Medical Leave Act (FMLA) requires covered employers to provide qualifying employees 12 weeks of unpaid job-protected leave following the birth, adoption, or placement of a child. Consult your employment counsel when you’re crafting or revising your parental leave programs and navigating the patchwork of state and local family leave laws.