According to the Equal Employment Opportunity Commission (EEOC), many workplace leave policies are discriminatory, which can result in costly litigation or big settlements. In fact, in May 2019, the EEOC obtained a $5 million settlement from JPMorgan Chase after alleging that their parental leave policy discriminated against men by providing them with less parental leave than it did to women. That settlement followed another EEOC settlement against Estee Lauder in 2018 of $1.1 million based on similar allegations.

Current litigation to watch involves two married lawyers who brought suit against their former law firm (Jones Day) in D.C. federal court over its family leave policy claiming the firm’s parental leave policy discriminated against fathers. One of Jones Day’s public statements posted on their website was that the former lawyers were ignorant of “both the law and biology.”

The EEOC’s guidance on this issue states, “Leave related to pregnancy, childbirth, or related medical conditions can be limited to women affected by those conditions. However, parental leave must be provided to similarly situated men and women on the same terms.” In other words, if your company wishes to give new parents paid time off to bond with their new children and adapt to parenthood, it must be gender neutral.

The Family Medical Leave Act (FMLA), which applies to companies with 50 or more employees, entitles an eligible employee to take up to 12 workweeks of job-protected unpaid leave for the birth or placement of a son or daughter, to bond with a newborn or newly placed son or daughter, or to care for a son or daughter with a serious health condition. A “son or daughter” is described as a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis.

But some employers, who are either not subject to the FMLA, or who wish to provide paid time off to new parents on top of FMLA leave, run afoul when those benefits favor the mom, particularly if she is the birth mother. While these policies are well-meaning, they can invite legal claims.

For help evaluating your workplace leave policies to ensure compliance with this issue and others, contact Laura Rubenstein at LRubenstein@RKWlawgroup.com.

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