Just in time for Father’s Day, JPMorgan has agreed to pay $5 million dollars to settle a class action lawsuit based on a discriminatory parental leave policy. We previously blogged about this case when the ACLU announced that it was filing a charge of discrimination with the Equal Employment Opportunity Commission on behalf of a JPMorgan dad. (and you can check out that blog post for a deeper explanation of the legal underpinnings of this issue, if you’re really interested). But this settlement provides an emphatic (and timely!) reminder to employers to take a look at their maternity/paternity or parental leave policies to make sure they don’t run afoul of the law.
Historically, many employers provided paid maternity leave to mothers, while providing little to no leave for fathers. According to the Equal Employment Opportunity Commission and several courts, while employers may provide leave that is tied to post-birth disability to females only, post-childbirth leave for bonding and childcare purposes must be provided to both male and female employees on an equal basis. The failure to do so is a violation of Title VII’s prohibitions on sex discrimination.
Now, the JPMorgan parental leave policy appeared to be gender neutral on its face – providing 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.” In the actual application of the policy, however, it appears that male employees were told that mothers were assumed to be the primary caretaker, and fathers would only be considered primary if they could show that the mother had returned to work or was “medically incapable of caring for the child.” The problem was that this presumption that mothers are the primary caretakers is discriminatory.
Employers can draw several lessons from the J.P. Morgan settlement. First, while disability benefits may be provided just for birth mothers, any additional, non-disability benefits should be offered to men and women on an equal basis. Specifically, any leave provided for childcare and bonding for a new child (whether by birth, adoption or foster placement) should be equally available to men and women. Some employers have addressed this by providing a certain number of weeks of disability leave to birth mothers, and also a certain number of weeks of childcare/bonding leave to all new parents. (Birth mothers get both!)
For employers taking the primary/secondary caregiver approach to leave benefits (paid or unpaid), how the policy defines “primary caregiver” is key. The definition must not presume primary means “mother.” As we emphasized in our earlier blog post, how a company “verifies” primary caregiver status must not be based on assumptions about whether men or women should be the primary caregiver!