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"I care for my newborn, too!" Dads demand equality in paid parental leave policies
By Katherine Fechte on July 27, 2018 at 12:10 PM

Businessman holding a baby. In an age when companies are more progressive than ever and employers are focused on keeping employees happy and healthy, employee benefits such as vacation days and paid leave are on the rise. Bloomberg reports that more than one in three U.S. employers now offers paid maternity leave beyond the amount required by law, up from one in six earlier this decade. Similarly, benefits such as paternity leave for new fathers and parental leave for new adoptive parents and same-sex couples have become more common.

But the employers offering these types of benefits should be cautious in drafting and administering their paid leave policies. More and more employers are finding themselves in the middle of discrimination claims for offering new dads less paid parental leave than new moms.

On July 17, 2018, the EEOC issued a press release indicating that Estée Lauder has agreed to settle a class lawsuit by paying $1.1 million to 210 men who claimed sex discrimination under the company’s paid parental leave policy. The lawsuit alleged that the policy favored women over men in that it granted women six weeks of paid leave for child bonding, after medical leave for pregnancy. New fathers, however, could only claim two weeks of paid time off to bond with new children.

Last year, the ACLU filed a charge with the EEOC against J.P. Morgan for denying male employees the same amount of paid parental leave as female employees. Specifically, the company offered 16 weeks of paid parental leave but gave one new father only two weeks of paid leave under the presumption that he was not the primary caregiver.

Although court cases on the paid parental leave issue are limited, in 2005 the Court of Appeals for the Eighth Circuit gave some helpful direction. In Johnson v. Univ. of Iowa, 431 F.3d 325, 328 (8th Cir. 2005), a biological father brought a class action challenging the University of Iowa’s parental leave policy that allowed biological mothers and adoptive parents to use accumulated sick leave upon arrival of a new child without extending the same benefit to biological fathers. While the court’s finding had constitutional considerations not applicable to private companies and employers, the court’s rationale in finding the policy was not discriminatory can be indicative of how other courts would decide the issue. The Eighth Circuit said: “If the leave given to biological mothers is granted due to the physical trauma they sustain giving birth, then it is conferred for a valid reason wholly separate from gender. If the leave is instead designed to provide time to care for, and bond with, a newborn, then there is no legitimate reason for biological fathers to be denied the same benefit.”

Employers that offer paid parental leave or are considering offering it should evaluate their rationale for providing the leave. If it is to give new parents time to care for a new baby, male and female employees should receive the same amount of leave. Being more generous with paid leave to new mothers could mean discrimination claims by new fathers are looming.

If you have questions about paid leave policies or need help drafting your own policy, please contact one of the attorneys in our Employment & Labor Practice Group.

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