Submitted by Nadia A. Lampton, Taft Law on Tuesday, December 23, 2019
We are nearing the end of the year with 2020 only weeks away. With a fresh year often comes a “new year, new you” approach for many, with goals of shedding those extra twenty pounds or saving more towards your kids’ college, nixing a habit, reading more, or learning a new skill or hobby. In addition to these resolutions, though, the New Year is also a time to explore fresh ideas and new goals, not just for you, but also for your company. It seems that this is also the time of year when HR folks do a broad assessment of their policies, and consequently, this becomes the time of year when I receive the most calls about updating a handbook or policy.
Employers certainly need to take the time to routinely review and update their handbooks and policies because, as we all know, laws change. This month’s round of calls have raised significant questions about one particular policy more so than any other – parental leave policies. Not surprisingly, this is also a hot topic in the law with increased litigation, enforcement efforts by the EEOC and enforcement efforts by state-based administrative agencies.
As you know, Title VII prohibits employment discrimination based on sex. This can also include discrimination against employees with caregiving responsibilities because of sex-based disparate treatment of female caregivers as compared with male caregivers. The EEOC has indicated that employers can also violate Title VII by making assumptions about pregnancy or caregiving responsibilities among men and women, such as assumptions about the commitment of pregnant workers or their ability to perform certain physical tasks, or assumptions about working fathers and other male caregivers that can lead to the denial of leave for male employees. See EEOC Notice N-915.002 – Unlawful Disparate Treatment of Workers with Caregiving Responsibilities, 2 EEOC Compl. Man. (BNA) (May 23, 2007). With this in mind, it is very important to review your parental leave policy to ensure its compliance with the law, particularly with Title VII, the ADA, and the Pregnancy Discrimination Act.
As you begin to review your policies (which of course will be a priority item at the start of the New Year), pay close attention to your parental leave policy. Does your parental leave policy provide leave only to women, but not to men? Does your policy provide six weeks of leave for women but only two weeks of leave for men? Does your policy provide leave for bonding given to biological parents but not to adoptive parents? If so, why? These are crucially important questions that must be addressed now because the EEOC has been aggressively pursuing companies that have parental leave policies that apply only to women, and these efforts have recently resulted in several sizable settlements.
With respect to parental leave policies affecting men and women, it is important to note that employers may provide women with greater leave benefits than men for the period of time when women are incapacitated due to pregnancy or childbirth; however, any leave for bonding or childcare purposes must be the same for men and women. Another important consideration is that incapacitation due to pregnancy or childbirth includes the post-partum period. According to most studies, this period is often five weeks or greater due to post-partum issues, complications, and healing that remain ongoing for weeks after childbirth.
The EEOC has stated that in order to avoid a potential Title VII violation or a violation of other state-based discrimination laws, “employers should carefully distinguish between pregnancy-related leave and other forms of leave, ensuring that any leave specifically provided to women alone is limited to the period that women are incapacitated by pregnancy and childbirth.” See EEOC Notice N-915.002.
Based on the EEOC’s recent enforcement actions, the following rules should assist in crafting parental leave policies that lessen the likelihood of liability:
If women receive more leave than men, employers should clearly distinguish between leave for medical recuperation due to incapacity from pregnancy or childbirth and leave for the purposes of bonding or childcare. Giving more leave for medical recuperation is legally permissible.
Absent compelling reasons, avoid paid leave timeframes specifically for women beyond six to eight weeks as this may appear suspicious to the EEOC and reviewing courts as being on leave for the purposes of bonding as opposed to leave due to incapacitation.
Leave given for bonding to a biological mother must also be given to a new father.
Avoid primary and secondary caregiver distinctions in your policies as these are easily and often attacked by the EEOC as being applied discriminatorily (even if facially appropriate).
Avoid different leave policies for adoptive parents than biological fathers as such differences will be used to show that the employer discriminates against men. However, if adoptive parents are given more time for reasons such as costs related to adoption, travel, or court hearings, those policy rationales should be laid out within the policy.
Equal parental policies for both men and women is the best plan to avoid liability.
While the EEOC’s enforcement efforts in this area are on the rise, so too is litigation. Many large, nationally-recognized employers have been forced to defend their policies in court and many have elected to settle in lieu of facing the burdensome costs of litigation. However, one case is currently pending in the D.C. Circuit that squarely addresses the issues related to parental leave, which may lead to further guidance in this area in the near future, so stay tuned.
For now, the ultimate takeaway for employers is this: if you currently have a parental leave policy, review it to ensure that it is compliant with state and federal law. If the policy includes a set timeframe for leave only to women, or if it distinguishes between men and women without rationale, then the policy is unlawful and needs to change. If you do not have a policy currently, consult legal counsel before implementing any new policies.