With all the talk about a paid Family Medical Leave law and paid maternity leave, it’s easy to lose sight of one key group of people: working fathers. Your company probably has family medical leave, and maybe even maternity leave policies. If your company is more progressive it may have a paternity leave or parental leave policy. Is that enough though? You may be surprised to find out that your parental leave policies may still leave you open to discrimination allegations. The EEOC recently made this clear to Estee Lauder…
So, as the song from a popular Broadway show says, “Let’s start from the very beginning” — or with the FMLA. Don’t worry I’ll keep it short. The FMLA allows up to 12 weeks’ unpaid job-protected leave to new mothers and new fathers. Moms generally get some of the time for their own recovery from childbirth and then they get “baby-bonding” leave. Fathers are also entitled to baby-bonding leave. Baby bonding leave must be taken before the baby reaches one year old. You probably know that already and you may be wondering “What’s your point?”. I promise I have one, so just work with me here, alright?
Suppose your company is more progressive and offers some paid parental leave. Both mothers and fathers get some paid baby-bonding leave. Sounds great, right? What’s the problem? To answer that, we need an example, so we’re going to use the real, live and current one from Estee Lauder. Estee Lauder provided paid leave to “primary” and “secondary” caregivers. Secondary caregivers received two weeks’ paid leave to bond with their newborn baby. Primary caregivers got 6 weeks’ bonding time plus a flexible return-to-work schedule. Take a wild guess as to who qualified as the primary caregiver under Estee Lauder’s policy.
Here’s how the case started in the first place. A male stockworker working at an Estee Lauder store in Maryland sought 6 weeks’ baby bonding leave (the amount automatically offered to new mothers) following the birth of his child. Estee Lauder denied his request and countered with their offer of 2 weeks’ bonding time offered to new fathers. The new father filed a charge with the EEOC and ultimately back in August, the EEOC filed suit on behalf of this employee and all others similarly situated, (i.e. other new fathers working at Estee Lauder who received the smaller benefit package) alleging that the lesser benefits offered to new fathers violated Title VII of the Civil Rights Act of 1964. The EEOC originally sought back pay and compensatory and punitive damages. The EEOC’s position is that offering less time off than new mothers, withholding from new fathers the flexible return-to-work arrangements it offers new mothers provides fathers less bonding time than mothers, and that is discrimination “because of sex”.
Now, let’s clear up a question I am guessing some of you might want to ask: What about the fact that the fathers are not the ones recovering from childbirth? That has been and as of now certainly remains the reality. It’s a valid question. To that I say that the policy in question did not actually discuss the medical leave, just the bonding time. In reality new moms probably could still get a few more weeks off from work, given that they would need some time to recuperate from childbirth –and perhaps round the clock feedings if they are nursing. If Estee Lauder’s policy made that distinction only, and granted new moms and new dads the same 6 weeks’ bonding time, and the same flexible return-to-work policy, this lawsuit might not have happened.
Estee Lauder and the EEOC have apparently just reached a settlement, although the specific terms have not been disclosed. Since this lawsuit involved a class of employees the back pay and damage amounts could have been hefty. Even without those amounts however, Estee Lauder would still have had to pay significant sums in legal fees defending this case.
So, note to bosses: Your parental leave policies should make no distinction between mom’s and dad’s regarding baby-bonding time. If you feel that a particular situation justifies a discrepancy, make sure you have a good reason –and document it–and tell the new mom or dad to kiss the baby.
That’s all I’ve got for now. See you next week!
Contents of this post are for educational/informational purposes only, are not legal advice, and do not create an attorney-client relationship. Consult with competent employment counsel in the state(s) in which you employ people with your specific questions.
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