Green-baby-boy-rattle-baby-rattle-clipart-cool-LSoFao-clipartThis past week, the American Civil Liberties Union announced that it was filing a charge of discrimination with the Equal Employment Opportunity Commission on behalf of a male J. P. Morgan employee because the company denies fathers paid parental leave on the same terms as mothers. Now this is an issue that has been percolating for awhile – and one that is not necessarily on the radar screens of smaller employers, many of whom may offer maternity – but not paternity – leave benefits to their employees.

There is a real tension with this issue. Employers may wish to support working mothers in the workplace by giving them paid maternity leave and other benefits designed to encourage them to continue working after the birth of a child – such as a bonus if the mother returns to work for a certain length of time after taking maternity leave. This seems like a progressive, compassionate philosophy, right? After all, much has been made about the difficulty and lack of support for working mothers, particularly in industries that are traditionally male-dominated. But on the other hand, granting these benefits only to working mothers discriminates against men, and of course, a progressive, compassionate company should also support fathers who wish to be more involved in the care of their children, right?

For many years, the EEOC has taken the position that post-childbirth leave for bonding and childcare purposes must be provided to both male and female employees on an equal basis, while leave that is tied to post-birth disability may be provided to females only.  Therefore providing a maternity leave policy, not tied to disability, that offers greater leave benefits than a paternity leave policy constitutes a violation of Title VII (which prohibits discrimination on the basis of sex), according to the EEOC.  This position was clearly articulated in the EEOC’s 2007 “Enforcement Guidance: Unlawful Disparate Treatment of Workers with Caregiving Responsibilities” and then again more recently in the EEOC’s 2015 “Enforcement Guidance on Pregnancy Discrimination and Related Issues.”

The case law in this area is less developed.  The U.S. Court of Appeals for the 8th Circuit, in Johnson v. Univ. of Iowa, does state (albeit in dicta, meaning that is just a suggestion and not a ruling of law): “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.”

Although not directly on point, also of relevance to this issue is the U.S. Supreme Court case of Nevada Dept. of Human Resources v. Hibbs, which dealt with the issue of whether a State has immunity from claims under the Family and Medical Leave Act.  In particular, the Court noted that “The FMLA aims to protect the right to be free from gender-based discrimination in the workplace.”  It went on to explain that, prior to the passage of the FMLA, there had been a significant discrepancy in leave benefits offered by many states to male and female employees for the birth of a child, and stated: “This and other differential leave policies were not attributable to any differential physical needs of men and women, but rather to the pervasive sex-role stereotype that caring for family members is women’s work.”  Thus, the Court concluded that, “In sum, the States’ record of unconstitutional participation in, and fostering of, gender-based discrimination in the administration of leave benefits is weighty enough to justify the enactment of prophylactic …legislation” in the form of the FMLA, which, of course, enables both fathers and mothers to take up to 12 weeks of leave following the birth, adoption or foster placement of a child.

Some employers have attempted to address this gender discrimination issue by providing a certain amount of paid parental leave for childcare and bonding, which can be available to parents without distinguishing between fathers and mothers. This bank of leave can either include any disability leave period for birth mothers (typically 6 weeks for a normal vaginal birth and 8 weeks for a caesarian birth), or could be in addition to such disability period.

An increasingly popular variation on this general paid parental leave policy is to provide a greater amount of paid leave for “primary caretakers” and a lesser amount for “secondary caretakers,” without designating fathers or mothers as either “primary” or “secondary.” This allows the employees, whether male or female, to choose whether they will be the primary or secondary caregivers under the policy. This is apparently the approach taken by J. P. Morgan. The challenge for employers, of course, is how to define who is a primary caregiver, and then whether and how to verify if someone is actually the primary caregiver – and it appears that this is where J.P. Morgan may have gotten into trouble.

According to the ACLU announcement, J.P. Morgan’s Human Resources told the male employee, who sought primary caregiver benefits, that “mothers are considered to be primary caregivers, and that fathers can only be treated as primary caregivers (and receive 16 weeks of paid parental leave) if they can demonstrate that their spouse or partner has returned to work, or that ‘the mother’ is medically incapable of caring for the child.” If this allegation is true, J.P. Morgan’s assumption that mothers are the primary caregivers is problematic. As a practical matter, it results in women being granted greater benefits than men – which brings us back to the EEOC’s concern about sex discrimination.

So, employers can draw several lessons from J.P. Morgan. First, employers should ensure that any leave benefit that is being provided for childcare and bonding for a new child (whether by birth, adoption or foster placement) is equally available to men and women. They can provide an additional benefit just for birth mothers tied to disability. But they should not provide additional, non-disability benefits just to women, even to encourage them to continue working after having a child. To the extent that employers choose to utilize a primary/secondary caregiver approach, they must be thoughtful about how they define and verify primary caregiver status, and they must be careful not to make assumptions about whether men or women should be the primary caregiver!