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In the U.S., many employers’ parental-leave programs prioritize birth mothers and offer limited benefits to fathers, adoptive parents, foster parents and LGBT parents. In 2015, the Equal Employment Opportunity Commission (EEOC) issued <a href="https://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm#IC3">Enforcement Guidance for Pregnancy Discrimination and Related Issues</a>, which includes parental leave policies. However, not all employers have followed this guidance. Consequently, just last year, the EEOC commenced a landmark lawsuit targeting a parental leave policy that purportedly gave greater benefits to new mothers than to new fathers.



In August 2017, the EEOC filed a lawsuit against a leading cosmetics company in the U.S. District Court for the Eastern District of Pennsylvania, alleging that the company’s parental leave policies provided fewer parental leave benefits to male employees as compared to female employees, in violation of Title VII of the Civil Rights Act of 1964 and the Equal Pay Act of 1963. The case arose after the company offered only two weeks of child-bonding leave to a new father, a stock worker, after rejecting his request for the six weeks of child-bonding leave it offered to new mothers. The lawsuit sought relief for not only the single affected male employee but also for other male employees who were denied equal parental leave benefits because of their sex. The EEOC sought back pay, compensatory damages, punitive damages and injunctive relief.

The EEOC claimed that the company’s then-in-effect policy provided eligible “primary caregivers” with six weeks of paid parental leave for child-bonding (in addition to leave for recovery from childbirth) and flexible return-to-work benefits. “Secondary caregivers,” on the other hand, were eligible for only two weeks of paid leave for child-bonding and were not offered any flexible return-to-work benefits. The EEOC argued that while this policy did not appear, on its face, to provide different benefits to female employees and male employees, in practice, male employees were discriminated against on the basis of their sex because they were eligible to receive only “secondary caregiver” leave benefits and were not eligible for any flexible return-to-work benefits.

Just last month, the EEOC and the company settled the lawsuit for a $1.1 million payment to a class of over 200 male employees and entered into a consent decree that required the company to stop treating fathers in a discriminatory manner. As a result of this case, the company now offers the following generous parental leave benefits to both male and female employees who regularly work 30 hours per week:
<ul>
 	<li>Six to eight weeks to moms for recovery from childbirth.</li>
 	<li>An additional 20 weeks of paid leave for bonding (available to moms and dads).</li>
 	<li>$10,000 toward adoption expenses.</li>
 	<li>A back-to-work transition program (regardless of gender or sexual orientation).</li>
</ul>
There are a couple of key takeaways for employers from this case. First, employers can treat men and women differently for purposes of parental leave for recovery from childbirth on the rationale that women who give birth need time to recover physically. However, employers cannot treat men and women differently with respect to child-bonding leave. The EEOC explains in its June 2015 pregnancy discrimination guidance that

“for purposes of determining Title VII’s requirements, employers should carefully distinguish between leave related to any physical limitations imposed by pregnancy or childbirth . . . and leave for purposes of bonding with a child and/or providing care for a child.”

This means that employers that provide paid parental leave to female employees for child-bonding (as compared to leave provided as a result of pregnancy-related physical or medical conditions) must provide the exact same child-bonding leave to male employees. Second, many employers distinguish between primary and secondary caregiver leave in their parental leave policies in an attempt to promote gender neutrality. However, as in the case of the cosmetics company that was sued by the EEOC, there are serious risks to using these terms in a parental leave policy when these terms are not properly defined or when they result in differential treatment of male and female employees with respect to child-bonding leave.

Additional Considerations When Developing a Parental Leave Policy

Just as with other types of benefits, employers can nevertheless dictate eligibility requirements for parental leave benefits. For example, employers can require employees to work for a certain period of time prior to becoming eligible for parental leave under their policies. Employers can also require employees to exhaust other available benefits such as vacation and sick leave before using parental leave. Finally, employers may choose to run Family and Medical Leave Act leave concurrently with parental leave.

If you would like assistance with reviewing or updating your parental leave policy or if you have any questions about your parental leave policy, BakerHostetler’s New York Employment Group is available to help.

Lessons Learned From the EEOC’s First Parental Leave Lawsuit