For the longest time, many employers differentiated between “maternity” and “paternity” leave in their policy manuals. A typical maternity leave would offer six to 12 weeks of salary replacement for new mothers while offering only one to two weeks of salary replacement for new fathers. Over time, society began catching up with reality, and now most employers acknowledge that traditional definitions of gender and family no longer apply. As a result, antiquated policies have been modified to offer paid “parental” leave.

Many parental leave policies differentiate between “primary” caregivers and “non-primary” caregivers, as opposed to mothers and fathers. Such policies typically offer six to 12 weeks of paid leave for new parents who certify that they are primary caregivers and a less significant benefit for new parents who do not certify that they are primary caregivers. These changes are well-intended, as they do away with stereotypes regarding gender, gender identity and sexual orientation.

Recently, even such modified policies have been under attack by activists suggesting that they make a flawed assumption that families have only one primary caregiver. Indeed, dual-income families are becoming the rule more often than the exception; individuals become parents in a variety of ways (including adoption, surrogacy, and foster care); and non-birth parents have more involvement in caring for children than ever before. This begs some questions, including:

What does it mean to be a primary caregiver?
Can more than one person who parents a newborn or newly adopted or fostered child legitimately certify being the primary caregiver?
What goals does a policy serve by the differentiation?

Implementation of parental leave programs scrutinized

In June 2017, the American Civil Liberties Union (ACLU) filed a class action charge with the Equal Employment Opportunity Commission (EEOC) alleging that JP Morgan Chase discriminates against men in the administration of the company's parental leave policy. There, the EEOC alleges that the employer went beyond differentiating between primary and non-primary caregivers. The company expressly presumed birth mothers to be primary caregivers and only made exceptions when the birth mother a) returned to work before using all parental leave or b) was medically incapable of caring for the child (as certified by the birth mother's physician). As best we can tell, the charge remains pending.

Just recently, Estée Lauder reached a settlement with the EEOC regarding similar claims. The company's paid parental leave policy offered primary caregivers six weeks of paid parental leave for child bonding, as well as flexible return-to-work benefits, and offered non-primary caregivers only two weeks of paid leave for child bonding. On its face, the policy does not provide different benefits to new mothers versus new fathers. However, the EEOC alleged that in practice, fathers were eligible only for non-primary caregiver leave, while mothers automatically were eligible for primary caregiver leave. The terms of the settlement appear to be confidential.

Family and Medical Leave Act considerations

Administering and enforcing parental leave policies are by no means clear-cut endeavors. Of course, if a business has 50 or more employees, it is required to comply with the federal Family and Medical Leave Act (FMLA), which entitles an eligible employee to take up to 12 weeks of leave to care for the employee's newborn or newly adopted or newly fostered child. However, the FMLA is merely a parental leave statute, and FMLA leave is unpaid unless the employer offers salary continuation benefits. In fact, there is presently no federal or state law requiring any employer to pay employees while on parental leave. Only a handful of states even have publicly funded paid parental leave (paid via payroll taxes).

What does this mean for parental leave programs?

This means that employers can get creative with their parental leave programs, as long as such programs do not discriminate on the basis of protected characteristics such as gender, gender identity, or sexual orientation. With that in mind – as well as the uncertain outcome of the ACLU's EEOC charge – employers would be wise to:

Review the company's existing parental leave program – both the policy itself and how it is implemented in actual practice.
Avoid making assumptions based on gender, gender identity, or sexual orientation.
Consider the company's goals when crafting or revising its parental leave program. Is cost savings the single objective? Will the policy have an impact on the company's ability to recruit and retain quality talent?
If the business employs 50 or more employees, remain cognizant of the interplay between the FMLA, the parental leave program, and disability insurance.
Consult with experienced Human Resources personnel and legal counsel when making decisions regarding granting or denying requests for leave (paid or unpaid).

Sheryl Jaffee Halpern is chair of Much Shelist's Labor & Employment group, where she helps employers make important decisions about their employees in a way that is designed to minimize risk. She counsels employers on a wide range of employment matters, providing clear and direct guidance that promotes legal compliance, while remaining cognizant of practical workplace realities her clients face.

Instant Insights /

Parental leave: Employee benefit or employment discrimination?

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