Take a Close Look at Your Parental Leave Policies

Envision a father expecting his first child. Can he expect any protected leave from his employer? What about paid leave?

Under traditional parental leave policies, he may be entitled to only two weeks off or no leave at all. Some employers provide only maternity leave, and others, who have made strides toward gender neutrality, use the “primary” and “secondary” caregiver dichotomy. But that may not be enough, according to the EEOC.

Most states mandate protected, if not paid, maternity leave for the time recommended by the birth mother’s physician. But when it comes to child care or “bonding” time after disability leave, fathers are assumed to be secondary caregivers, without consideration for what the new parents’ plans actually are. Not only does this type of categorical policy significantly limit a company’s ability to recruit and retain top talent in today’s workforce, it also sets the stage for gender discrimination lawsuits. 

While paid parental leave has yet to become a staple in the American workforce, industry trends show that innovative companies are gaining a competitive advantage in recruitment and retention of top candidates through well-designed paid parental leave policies. Typical paid parental leave policies categorize mothers as primary caregivers and fathers (or adoptive parents) as secondary caregivers. Under these policies, primary caregivers are afforded more time off than secondary caregivers. But as millenials become a larger and larger part of the workforce, the modern American family evolves. Gone are the days of the traditional bread-winner/home-maker family models. Today, both partners work, and both partners parent.

Recently, the Equal Employment Opportunity Commission (“EEOC”) filed a complaint against Estee Lauder, alleging its paid parental leave policy violates Title VII of the Civil Rights Act of 1964 and the Equal Pay Act of 1963, which prohibit discrimination in pay or benefits based on gender. The EEOC seeks back pay and compensatory damages for Plaintiff Christopher Sullivan, a Maryland employee expecting a child who requested six weeks, but received only two weeks, of caregiver leave. Estee Lauder’s paid parental leave policy provided six weeks paid parental leave to new mothers but only two weeks for new fathers. EEOC Regional Attorney Debra M. Lawrence stated, “Addressing sex-based pay discrimination, including in benefits such as paid leave, is a priority issue for the Commission."

Providing paid parental leave beyond the minimum required by law places an employer in a better position to recruit and retain the best candidates for employment. Although mothers who have given birth may qualify separately for disability leave on a medical basis, employers are wise to implement a separate caregiver policy, which allows flexibility for new parents to determine childcare plans in the early stages of parenting, regardless of gender.

Law clerk Andrew Lehmkuhl contributed to this post.