Be Ready to Explain Parental Leave Disparities

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By Martin Berman-Gorvine

JPMorgan Chase & Co. offers 16 weeks of paid leave to primary caregiving parents, but only two weeks to non-primary caregivers. Does this practice discriminate against fathers?

The American Civil Liberties Union thinks so. It filed a complaint last month with the Equal Employment Opportunity Commission accusing the financial firm of violating the Civil Rights Act by discriminating against fathers when they ask for parental leave.

HR departments should take notice of this case and be prepared to explain to workers why companies offer more maternal than paternal leave, attorneys and consultants say.

When it comes to unpaid leave under the Family and Medical Leave Act, employers that have 50 or more employees within a 75-mile radius are legally obligated to offer the same amount of parental leave to both sexes, Sonya Rosenberg, a partner with Chicago-based management-side law firm Neal, Gerber & Eisenberg LLP, told Bloomberg BNA in a June 29 email.

Those employers that don’t meet that threshold “can, and often do, offer greater paid benefits to mothers than to fathers,” she said, but if that’s their practice, “they should structure their relevant policies thoughtfully” so as not to attract unwelcome attention from the EEOC.

Paid parental leave is a different matter. Employers are allowed to offer more of that type of time off to childbearing women due to the medical needs associated with pregnancy and childbirth, Rosenberg said. “The EEOC recognizes that such additional time off to birthing mothers may be appropriate, as long as it is provided for recovery and other medical reasons and not based on caregiving stereotypes.”

Bonding Leave, Cultural Preferences

But time to bond with a new child should be the same for both sexes, according to Lenny Sanicola, senior practice leader at WorldatWork, a nonprofit HR association based in Scottsdale, Ariz. This type of leave “should be provided equally to all similarly situated parents ,” he told Bloomberg BNA in a June 29 email.

Another wrinkle is employee preferences. “There remains a cultural aspect to why men are not offered paternity leave at the same rate nor do they take paternity leave even when offered,” Edward Yost, HR business partner at the Society for Human Resource Management, told Bloomberg BNA in a June 30 email.

Citing this year’s benefits survey by SHRM, he said that two-thirds of female employees (66 percent), but only 36 percent of male employees, used all their available paid parental leave in 2016. “In fact, 40 percent of male employees used less than half of the paid parental/family leave they had available, compared with 13 percent of female employees,” he said.

The survey also showed that three in 10 employers offer paid maternity leave and 24 percent offer paid paternity leave, with the latter figure having gone up 9 percentage points in the past five years. Similarly, Sanicola said that a recent WorldatWork survey showed that 38 percent of employers offer paid leave for parents to bond with a new child.

So if a new dad asks why new moms get more paid time off, Rosenberg said, “the first go-to place should be the employer’s parental leave policy, which, if properly drafted, should indicate the legitimate and legal basis for why mothers are provided additional leave,” as well as the pregnancy-and-childbirth medical justification for the disparity.

To contact the reporter on this story: Martin Berman-Gorvine in Washington at mbermangorvine@bna.com

To contact the editor responsible for this story: Tony Harris at tharris@bna.com

For More Information

The WorldatWork survey can be accessed at https://www.worldatwork.org/adimLink?id=81415.

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