Bonding with Baby Bumble
By Samantha Koeninger Rittgers & Haleigh Hopkins
EEOC and Estee Lauder recently settled a 2017 litigation matter alleging that the company discriminated against male employees because of and on the basis of sex, in violation of both Title VII and the Equal Pay Act. The male employees were all biological fathers who sought and/or were provided benefits under the company’s Parental Leave policies. The alleged discrimination occurred when biological fathers who were employed in the same positions and perform equal work to that performed by biological mothers but nevertheless received wages, in the form of parental leave benefits, at a lesser rate than biological mothers after the child was born.
Recent EEOC guidance clearly states that leave related to pregnancy, childbirth, or related medical conditions can be limited to women affected by those conditions. This is different than parental leave, which must be provided to similarly situated men and women on the same terms. If, for example, an employer extends leave to new mothers beyond the period of recuperation from child birth (like additional bonding time), it cannot lawfully fail to provide an equivalent amount of leave to new fathers for the same purpose.
By way of example:
Defensible Parental Leave Policy
An employer offers pregnant employees up to 10 weeks of paid pregnancy-related medical leave for pregnancy and childbirth as part of its short-term disability insurance. The employer also offers new parents, whether male or female, six weeks of paid parental leave. The employer’s policy does not violate Title VII. Women and men both receive six weeks of parental leave, and women who give birth receive up to an additional 10 weeks of leave for recovery from pregnancy and childbirth under the short-term disability plan.
Discriminatory Parental Leave Policy
In addition to providing medical leave for women with pregnancy-related conditions and for new mothers to recover from childbirth, an employer provides six additional months of paid leave for new mothers to bond with and care for a new baby. The employer does not provide any paid parental leave for fathers. The employer’s policy violates Title VII because it does not provide paid parental leave on equal terms to women and men.
Before a settlement was reached, Estee Lauder adopted and implemented a revised Paid Parental Leave and Back-to-Work Flexibility Policies for all full-time employees with at least ninety days of continuous days of employment. The revised leave provides all eligible employees who are new parents, regardless of gender or caregiver status, the same rights to paid leave for purposes of child bonding and the same rights to flexibility upon return to work from the parental leave.
Does your company offer leave to new parents?
Check to make sure that the policy distinguishes between leave related to any physical limitation by pregnancy or childbirth and leave for purposes of bonding with the new precious bundle.