Can an employer distinguish between moms and dads when granting paid parental leave for care for a newborn? Bank JP Morgan appears to believe so. Derek Rotondo requested parental leave when his wife was expecting their second child. Under JP Morgan’s policies, mothers are by default considered primary caregivers and are automatically entitled to 16 weeks of paid parental leave. Fathers, however, are only entitled to two weeks of paid leave, unless the father could prove that the mother was “medically incapable” of taking care of the child. Mr. Rotondo did not meet that criteria and was denied the 16 weeks of paid leave. In response, he and the ACLU filed a charge with the EEOC alleging that JP Morgan’s policy violated Title VII because it enforced gender stereotypes—women as caregivers and men as workers.

Keep in mind we are not talking about whether men can take unpaid leave to care for a newborn. That issue was decided long ago with the FMLA’s passage. If a man working for an FMLA-covered employer is FMLA-eligible and requests 12 weeks of unpaid leave when a newborn enters his life, the employer’s answer is almost always a definite yes. The issue in this matter is about the employer’s paid leave policy.

EEOC Guidance

The EEOC has issued specific guidance on employers providing paid pregnancy and post-pregnancy leave. They suggest that employers should divide this type of leave into two categories:

(1) Pregnancy disability – leave related to any physical limitations imposed by pregnancy or childbirth

(2) Bonding – leave for purposes of bonding with and/or providing care for a child

Obviously, the first category can be limited to women affected by those conditions. However, if an employer chooses to extend paid leave to new mothers beyond the period of recuperation from childbirth, it must provide that leave to similarly situated men and women on the same terms. The guidance goes on to give an example of how an employer can phrase the distinction between the types of leave in their policies.

Takeaways

The JP Morgan charge is still in the early stages so it will be interesting to see how this plays out. However, as norms for childcare have evolved into a more equal status between mothers and fathers, employers may be confronted with similar requests by working dads. While the EEOC’s suggested language for a policy is only guidance, not a requirement, it is helpful as a starting point for discussions about what benefits an employer may want to provide. Keep in mind that you cannot discriminate against employees based on their sex—even if your intent is to give new mothers an extra benefit.