Employer Pays $5 Million For Not Knowing That Men Can Be Caregivers Too

Financial services leader JPMorgan Chase just settled a sex discrimination claim with the Equal Employment Opportunity Commission (“EEOC”) for $5 Million.  A year before, cosmetics giant Estee Lauder offered up $1.1 Million to settle a similar claim.  The issue in both cases was parenting leave policies that offered more time off to female employees than to their male counterparts.

It may seem surprising in this day and age but many employers still offer the mother more “bonding time” after the birth or adoption of a child than they offer to the father.  This is sometimes done by explicitly designating unequal leave entitlements based on gender.  In other cases, companies differentiate between a “primary” and “secondary” caregiver with the assumption (either stated or implied) that the woman will assume the primary role.

Men Are Parents Too

In the JPMorgan Chase case, employee Derek Rotando applied for the company’s 16-week paid parenting leave so that he could bond with his new son and share initial childcare responsibilities with his wife.  He was told, however, that in most cases, only the mother gets the 16-week leave.  Unless he could show that his wife (a school teacher) had returned to work or was medically incapable of caring for the baby, he would only be able to take 2 weeks of paid leave.

Rotando filed a sex discrimination charge with the EEOC and then participated in a class action lawsuit on behalf of all male JPMorgan Chase employees who were denied access to the full leave.  Following the settlement of the lawsuit, JPMorgan Chase revised their policy to offer the 16-week paid leave to either gender simply upon the employee’s self-designation as the primary caregiver.  Non-primary caregivers now receive a six-week paid leave.

Family (Leave) Planning

In their 2015 Enforcement Guidance on pregnancy discrimination, the EEOC reminded employers to distinguish between leave necessitated by pregnancy, childbirth and any related medical issues versus leave desired for bonding or parenting purposes.  The former obviously may be limited only to females but the latter should be provided in equal amounts and under equal circumstances without regard to gender. While EEOC pronouncements like this do not have the actual force of law, they do represent the position that the EEOC will take when charges are filed, and they are given deference in the courts in many cases.

The EEOC has indicated that this will be an area of substantial enforcement focus for the agency.  Accordingly, employers should examine their leave policies (variously called “Maternity Leave”, Parenting Leave”, Family Leave” and so on) to distinguish appropriately between benefits relating to the medical and disability-related aspects of pregnancy and childbirth, and those relating to parenting leave for the period of time that both parents desire for bonding and childcare purposes

Avoiding gender-based terminology and those phrases that imply differentiation (e.g. “primary” v. secondary”) will help avoid confusion and inference of unequal treatment.  The policies should encourage all employees to visit with and ask questions of Human Resources, Benefits Administrators or other employer personnel who oversee the leave program.

Bottom Line

Employers will stay on the correct side of the law in this area if they simply remember that pregnancy is generally viewed as a medical issue and as such is within the exclusive province of the female employee.  Parenting leave is an employee benefit matter and therefore must be administered on a non-discriminatory basis.