Does Your Parental Leave Policy Discriminate Against New Dads?

Although the vast majority of states, including North Carolina, do not require paid parental leave, some companies choose to offer it as part of their benefits package.  Of recent concern for those companies who do offer paid parental leave is whether their policy discriminates against male employees.  The Equal Employment Opportunity Commission (“EEOC”) and U.S. District Court for the Eastern District of Pennsylvania are expected to review two of these policies more closely:

  • On June 14, 2017, a male employee of J.P. Morgan Chase & Co. filed a gender discrimination complaint with the EEOC.  The complaint alleges that the policy, which provides 16 weeks of paid parental leave to the child’s “primary caregiver” and only two weeks of paid leave to the non-primary caregiver, discriminates against fathers.
  • On August 30, 2017, the EEOC filed suit in federal district court against Estee Lauder Companies, Inc.  The suit claims that the company’s parental leave policy provides male employees lesser parental leave benefits than female employees, and is thus discriminatory.  The policy provides six weeks of leave and flexible arrangements to mothers and “primary caregivers” and two weeks of leave to “secondary caregivers.”

A closer look at the policies.

The claims allege that the policies discriminate against male employees because employers automatically presume mothers are the primary caregivers.  Generally, fathers can only achieve primary caregiver status if they prove (1) the mother is medically incapable of caring for the child, or (2) the child is born via surrogacy.  Women are not burdened with this additional requirement because it is already assumed that they are the primary caregivers.  As a result, female employees are effectively getting more paid time off to bond with their newborn than their male counterparts.

What to watch for.

The EEOC claim filed against J.P. Morgan is not a lawsuit, yet.  Prior to initiating a civil lawsuit against an employer, the employee must file a charge with the EEOC.  The EEOC will try to reach a settlement between the parties through mediation.  If that does not work, the EEOC will investigate whether the employee’s claims have any merit.  In this case, if the parties do not come to an agreement, there is a good chance the EEOC will find enough merit to bring a suit similar to the one pending against Estee Lauder in the U.S. District Court for the Eastern District of Pennsylvania.

The lawsuit against Estee Lauder is brought by the EEOC as representative of the male employee.  The complaint asks the judge to order Estee Lauder to change its policy, and is seeking backpay and compensatory damages for all male employees who have suffered harm under the policy.  Ultimately, the court will determine whether Estee Lauder is in violation of Title VII.

It is important to note that the court’s decision will not be immediately binding on us all.  Even still, if these claims succeed, companies that offer paid parental leave might want to consider reviewing their policies to ensure moms and dads are getting the same deal.

For more information, please contact Nicole Gardner of Gardner Skelton PLLC.