Is Your Company’s Maternity Leave Policy Legal? The EEOC May Not Think So
Picture this. Your company is contemplating providing women with two months of paid leave with an option to take two more months of unpaid leave for the birth of a child and it is contemplating providing men with two weeks of paid leave for the birth of a child. Legal? Perhaps not. In fact, such a policy might be considered unlawfully discriminatory against men.
Under Title VII of the Civil Rights Act of 1964, employers are permitted to provide women with leave specifically for the period that they are incapacitated because of pregnancy, childbirth, and related medical conditions. Employers, however, may not treat females more favorably than males with respect to other kinds of leave, including leave for childcare purposes, under Title VII. Indeed, according to the Equal Employment Opportunity Commission (EEOC), employers who grant more liberal leave to new mothers than to new fathers without tying that leave to a pregnancy-related disability may be guilty of sex discrimination.
The EEOC has cited an example of potential sex discrimination that is similar to our example above. In the EEOC’s example, the company allowed female employees to take up to 16 weeks of unpaid leave after childbirth, while male employees were limited to two weeks of “paternity leave” to care for a newborn. The EEOC stated that a portion of the disparity in leave may be justified because the female may require disability leave associated with her pregnancy or the childbirth. The EEOC, however, opined that it may be difficult for the company to justify the entire 14-week disparity between men and women. The EEOC stated that “[i]n short, the employer must justify any disparity in parental leave by proving that it is attributable to the woman’s disability.” The EEOC’s example may also run afoul of the Family and Medical Leave Act (FMLA) because the FMLA allows 12 weeks of unpaid leave to an eligible employee regardless of gender to care for a newborn.
To avoid a potential Title VII or FMLA violation, employers should consider developing a safe harbor policy which would establish a single standard for parental leave applicable to men and women and then create a separate pregnancy disability policy that is limited to a period that women are incapacitated by pregnancy and childbirth. For example, the EEOC has opined that an employer could provide both males and females with a certain amount of paid parental leave following the birth of a child and then allow additional leave for females who verify that they need additional time based on a disability related to her pregnancy or the childbirth.
Once your company has implemented a gender-neutral parental leave policy, it is important to apply the policy fairly. For example, managers and HR personnel should avoid acting on stereotypes about which gender is usually the caregiver for a newborn child. The EEOC has provided the following example of such a stereotype, which would likely cause a company legal trouble:
Eric, an elementary school teacher, requests unpaid leave for the upcoming school year for the purpose of caring for his newborn son. Although the school has a collective bargaining agreement that allows for up to one year of unpaid leave for various personal reasons, including to care for a newborn, the Personnel Director denies the request. When Eric points out that women have been granted childcare leave, the Director says, “That’s different. We have to give childcare leave to women.” He suggests that Eric instead request unpaid emergency leave, though that is limited to 90 days. This is a violation of Title VII because the employer is denying male employees a type of leave, unrelated to pregnancy, that it is granting to female employees.
There are many options for drafting parental leave policies available to employers. Of course, the easiest way to avoid these potential legal pitfalls is to provide men and women the same amount and type of leave for childbirth. But, understandably, that is not always the best option from a business standpoint. At the very least, an employer should review its current parental leave policies to ensure that they are not facially discriminatory towards one gender. Employers should then strive to implement their parental policies in a gender-neutral manner.
If you have any questions about your Parental Leave Policy, please do not hesitate to contact any member of Troutman Sanders LLP’s Labor & Employment Practice Group.