"Employers should not assume that a new mother will not want to take on an assignment that requires travel, or elect to redistribute overtime work so a new father will have more time at home."
In an effort to provide enticing benefit packages to workers, many employers are offering parental leave benefits, including extended periods of paid leave. As demonstrated by the recent spate of lawsuits filed by individuals as well as the Equal Employment Opportunity Commission, though, it is critical to ensure that parental leave policies do not run afoul of discrimination laws. Companies in the financial services, entertainment, cosmetic and legal industries are among those that have been targeted with discrimination claims.
POTENTIALLY DISCRIMINATORY POLICIES
While companies may have the best intentions in offering parental leave, if greater benefits are offered to female employees, it may violate Title VII of the Civil Rights Act of 1964, as well as state and local discrimination laws. This is true whether the leave is being offered because it is required under the federal Family and Medical Leave Act or state or local law, or where it is not legally required, and can be discriminatory even where the parental leave offered is unpaid.
PREGNANCY-RELATED MEDICAL LEAVE VERSUS PARENTAL LEAVE
In the EEOC's Enforcement Guidance on Pregnancy Discrimination and Related Issues, the EEOC cautions that "employers should carefully distinguish between leave related to any physical limitations imposed by preg-
nancy or childbirth" and leave for purposes of bonding with and/or providing care for a child. Pregnancy-related medical leave -- that is, leave related to the pregnancy itself, childbirth or related medical conditions -- can be granted to women affected by those conditions even where men would not be eligible for the same type of leave. However, employers must offer men and women equal benefits for bonding. Offering disparate amounts of leave to bond with and/or care for the child (i.e., parental leave) to mothers and fathers would be discriminatory because the benefit is not provided on the same terms to men and women.
The EEOC is focused on the issue of discriminatory parental leave, as demonstrated by its recent lawsuits. In connection with one such action, the EEOC commented that addressing sex-based pay discrimination, including discrimination in benefits such as paid leave, is a priority issue.
`PRIMARY CAREGIVER' DISTINCTION
To avoid this issue, some companies attempt to distinguish between "primary caregivers" and "secondary caregivers" in parental leave allotments, offering more parental leave to those designated as primary caregivers. While this is not facially discriminatory, the policy may actually be implemented in a discriminatory manner, whether due to implicit bias or otherwise. For example, several of the lawsuits asserting discrimination claims are based on allegations that the defendant company routinely granted "primary caregiver" status to mothers, which afforded them extended paid leave periods, and denied it to fathers. While the "primary caregiver" distinction is not per se unlawful, it can still give rise to legal claims and carries inherent implementation risks.
Other benefits related to parental leave are implicated as well. For instance, some companies offer intermittent parental leave, or flexible return-to-work policies after parental leave. Such policies must be made equally available to men and women. In addition to gender discrimination considerations, companies must consider the impact of parental leave policies as they relate to employees' sexual orientation, gender identity, gender expression or transitioning, family status and marital status.
RECOMMENDATIONS FOR EMPLOYERS
Employers should take this opportunity to carefully review their medical and parental leave policies. Such policies must be carefully crafted to conform to all applicable federal, state and local law, including the FMLA, comparable state statutes, and state and local sick leave laws, which may require jobprotected medical and parental leave for covered employers and eligible employees. Parental leave policies in particular should be examined to ensure that the benefits offered are not facially discriminatory. Related policies, such as family care leave (i.e., to care for sick parents), flexible scheduling and telecommuting, and leave to visit schools and child care providers, should also be carefully reviewed for potential adverse impact on a pro-tected class or bias (e.g., in favor of a new mother over a new father or vice versa), either explicitly or in practice.
If parental leave is offered (whether legally required or not, and whether paid or unpaid), employers should distinguish between pregnancy-related medical leave, which can legitimately be limited to women and transgender employees experiencing medical issues as a result of pregnancy, and parental leave for baby bonding and/or caring for a child, which should be offered on equal terms to men and women.
From an implementation standpoint, employers should review their practices to make certain that policies are being applied in a non-discriminatory manner. In addition, employers should ensure that they are not engaging in stereotyping or discriminatory behavior -- however well-meaning -- for men or women returning from leave, whether men or women. For instance, employers should not assume that a new mother will not want to take on an assignment that requires travel, or elect to redistribute overtime work so a new father will have more time at home. Work opportunities should continue to be assigned in a manner that does not play into gender or other stereotypes. If women are given additional leeway and "ramp-up" time upon return from leave, men should receive similar treatment.
Legal counsel conversant in applicable federal, state and local employment laws can assist in crafting policies and practices to navigate this perilous area.
Originally featured in Law Week Colorado on June 25, 2018