Many companies offer parental leave benefits above and beyond the 12 unpaid weeks required by the FMLA. However, well-meaning employers can run afoul of federal anti-discrimination laws by providing different parental leave benefits to fathers and mothers.

Title VII bans employment discrimination on the basis of sex. 42 U.S.C.A. § 2000e-2. But recently there has been a growing consensus among courts that employers can also violate Title VII by providing female employees with maternal leave policies that are more generous than the paternal leave policies offered to men. See e.g. Johnson v. Univ. of Iowa, 431 F.3d 325, 328 (8th Cir. 2005); EEOC Enforcement Guidance: Pregnancy Discrimination and Related Issues, (June 25, 2015), available here.

In evaluating whether a parental leave policy violates Title VII, courts look to the purpose of the leave: is this a medical leave policy or a parental bonding leave policy?

Employers may continue to provide medical leave to female employees because of pregnancy and to recover from childbirth. And that medical leave does not need to be offered to male employees.

Title VII is only implicated when the reason for parental leave is bonding, that is caring for and bonding with a newborn. In that case, employers must provide parental leave on the same terms to their male and female employees.

Therefore, to avoid a potential Title VII violation, employers should carefully distinguish between pregnancy or childbirth-related leave and parental bonding leave, ensuring that any leave provided to women alone is limited to the period in which an employee is medically incapacitated by pregnancy or childbirth.

Otherwise, employers should review their parental leave policies to ensure that they offer the same benefits to their male and female employees.