Can we offer new mothers more parental leave than we offer fathers?
Quick Answer
Additional leave may be offered to new mothers if the leave is related to a medical condition or impairment experienced only by the mother.
Legal Perspective
Brownstein Hyatt Farber Schreck
Denver, Colorado
You can if you distinguish between leave related to pregnancy complications and leave for bonding with the new baby, say employment law attorneys Christine Samsel and Hannah Caplan.
Offering different amounts of bonding leave to mothers and fathers would be discriminatory. However, pregnancy-related medical leave can be given to just female employees, since males are not eligible for this type of leave. Employers should also consider the interplay of parental leave policies with various federal and state leave laws that might be applicable.
Relevant Case Law
Martinez-Ruiz v. Centimark Corp.
Hedges v. Board of Educ. of the Manchester Regional High School Dist.
Ayanna v. Dechert LLP
HR Insight
Smart Recruiters
, Alabama
To avoid any potential legal issues, it’s recommended that companies provide equal parental leave for both mothers and fathers, according to Program Manager Karin Philippczyk.
Additionally, offering equal parental leave benefits can also help promote a more inclusive and supportive workplace culture that values work-life balance for all employees, regardless of gender.
Vaxcel International Co. Ltd.
Carol Stream, Illinois
Under parental leave, both mother and father need to have equal amounts of time off, whether paid or unpaid, says HR Manager Kim Schrader. If you want to offer more time to a new mother, it should be a separate policy, such as recovery leave, with the purpose of enabling the mother to recover from childbirth.
Vacation International
Seattle, Washington
You must follow the federal FMLA guidelines as well as your state’s family leave guidelines, says HR Manager Kim Pederson. When it comes to such leave, several factors matter, including:
- the circumstances of employment
- whether the parents work at the same employer
- the position the parent holds in the company, and
- the size of the company.
Be sure to check your state’s requirements.
The Cost of Noncompliance
New fathers shortchanged in parental leave policies: Estée Lauder pays $1.1M
Who was involved: Estée Lauder, a New York-based producer of skincare, makeup, fragrance and hair care products, and the Equal Employment Opportunity Commission (EEOC), on behalf of 210 male Estée Lauder employees.
What happened: The EEOC alleged in a lawsuit that Estée Lauder violated Title VII by offering new mothers six additional weeks of paid leave for parental bonding while offering new fathers only two. The suit further alleged that when this child-bonding leave expired, new mothers were provided with flexible return-to-work benefits that were not offered to new fathers.
Result: To end the suit, Estée Lauder agreed to pay $1.1 million to a class of 210 affected employees. It also agreed to administer its parental leave benefits using sex-neutral criteria and in a way that provides equal benefits for male and female employees. Under a new policy, it gave males and females the same 20 weeks of paid leave for bonding and the same six-week flexibility period when returning to work.
Info: Estée Lauder Companies to Pay $1.1 Million to Settle EEOC Class Sex Discrimination Lawsuit, 7/7/18.
Unfair parental leave policies? Employer pays $5M settlement to fathers who alleged bias
Who was involved: JP Morgan Chase, a New York-based financial services company, and a class of employees consisting of birth fathers.
What happened: A class of male employees alleged that Chase violated Title VII and various state laws by discriminating against birth fathers with respect to the provision of paid parental leave. Specifically, the lawsuit alleged that Chase presumptively treated biological mothers as primary caretakers and provided them with significantly more paid parental leave than it provided new fathers. It allegedly treated new fathers as primary caregivers only if they showed that their spouse had returned to work or was medically unable to assume primary caretaker duties.
Result: The employer agreed to pay $5 million into a settlement fund to end the suit. It also agreed to maintain a gender-neutral parental leave policy and provide relevant HR training.
Info: Unopposed motion for preliminary approval of class action settlement, 5/30/19.
CNN reaches settlement to resolve parental leave dispute with new father
Who was involved: Atlanta-based Turner Broadcasting and CNN, and Josh Levs, a CNN reporter.
What happened: The reporter filed an Equal Employment Opportunity Commission (EEOC) complaint to challenge CNN’s parental leave policy, which allegedly provided biological fathers with two weeks of paid parental leave while providing 10 weeks of paid parental leave to other parents, including biological mothers and adoptive parents.
Result: The parties reached a settlement. The employer implemented a new policy under which biological fathers, biological mothers and adoptive parents all received six weeks of paid parental leave. Biological mothers also qualified for short-term disability leave.
Info: The Committee Announces Settlement of Journalist Josh Levs’ Sex Discrimination Charge That Challenged CNN’s Parental Leave Policy, 9/16/15.
Key Takeaways
- When formulating parental leave policies, it is critical to distinguish between leave that is related to physical limitations that are imposed by pregnancy or childbirth and leave that is provided for the purpose of bonding with a child or caring for them.
- Leave for bonding and caretaking must be provided equally to fathers and mothers.
- Leave that is related to pregnancy-related conditions that are experienced only by women may be limited to women.
- The Family and Medical Leave Act does not distinguish between new mothers and new fathers when it comes to the provision of parental leave.
- That means that under the FMLA, covered employers may not provide more leave to new mothers than they provide to new fathers.
- A blanket policy that provides greater parental leave benefits to new mothers than it provides to new fathers is likely to constitute unlawful sex discrimination.
- If a new mother asks for leave as a disability-related job accommodation due to a pregnancy-related disability, treat the request as you would treat any other request for a disability-related job accommodation.
- Some states separately offer pregnancy disability time off to new mothers. These state laws vary.
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