The EEOC recently settled a case against Estée Lauder, which had provided six weeks of child-bonding parental leave to “primary caregivers” but only two weeks to “secondary caregivers.” The agency said that the policy — as administered — discriminated against men. Title VII of the Civil Rights Act and the Equal Pay Act both prohibit gender-based discrimination in pay or benefits.
The terms of the settlement were not disclosed, but the settlement itself may cause companies to think twice about their existing parental leave policies. Hopefully, more employers will offer the same child-bonding leave to all parents.
Is it legal to offer paid medical leave to birth mothers but not fathers?
According to the Society for Human Resource Management (SHRM), the situation is different when the benefits in question are medical or disability-based. While leave for child bonding should apply equally to everyone, women who have given birth can be offered additional leave to recover from the birth process. This could require a doctor’s certification that the woman is disabled from working during the recovery period of about six to eight weeks.
In other words, companies can offer birth mothers additional leave as long as it’s related to the physical recovery time needed after birth. Such a policy would result in birth mothers receiving more leave than their partners who work at the same company, but it would not be discriminatory.
It’s important to note that federal law does not require companies to offer paid child-bonding leave. A number of cities and states do require such leave, however and, based on the EEOC’s position in the Estée Lauder settlement, federal law requires child-bonding leave to be provided without regard to gender.
The federal Family and Medical Leave Act requires employers to provide up to 12 weeks of unpaid child-bonding leave for both biological and adoptive parents. It also gives employees the right to use that unpaid time to care for their own serious health condition, which includes post-pregnancy care. Spouses, too, can use FMLA leave to provide care for the birth mother, if necessary.
According to the SHRM’s 2017 benefits survey, 30 percent of employees said their organizations provide paid maternity leave, but only 24 said those organizations offer paid paternity leave. The average paid maternity leave was 41 days, while paternity leave was only 22 days, on average.
Your company may be relying on stereotypes that mothers need more child-bonding time than fathers. If the mothers’ leave is longer to account for medical recovery, that is probably lawful. If the policy simply provides more benefits to women, it may be considered discriminatory. You should have an employment law attorney evaluate your case.