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Paid pregnancy-disability leave OK
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The Equal Employment Opportunity Commission (EEOC) is scrutinizing paid-child-bonding-leave policies closely, particularly those that distinguish between primary and secondary caregivers, because the policies may discriminate against men.
The EEOC sued Estée Lauder in 2017 for having such a policy, one that granted six weeks of paid child-bonding leave to primary caregivers and two weeks to secondary ones. The commission claimed that the policy, as administered, discriminated against men in violation of Title VII of the Civil Rights Act of 1964 and the Equal Pay Act of 1963, which prohibit discrimination in pay or benefits based on sex. The parties agreed to settle on Feb. 27; the terms of the settlement are undisclosed.
Numerous employers still make a distinction in their parental-leave policies between primary- and secondary-caregiver leave, which is a risky practice, said Kelsey Papst, an attorney with Littler in Sacramento, Calif. This agreement to settle may cause some employers to do away with this distinction and offer the same child-bonding-leave benefits to everyone, she noted.
While paid child-bonding leave should be the same for women and men, it's lawful for an employer to have a paid-pregnancy-disability-leave policy that applies only to biological mothers, Papst observed. Most physicians will certify that mothers are disabled for approximately six to eight weeks after they give birth, depending on whether they have a cesarean section or not, she noted.
Some companies provide paid medical leave for a birth mother and paid child-bonding leave to both parents, wrote Esther Lander and James Crowley, attorneys with Akin Gump in Washington, D.C., in an e-mail to SHRM Online. As a result, women are receiving more paid leave than men, but this is lawful as long as male and female employees get the same amount of paid leave for child bonding, they stated.
[SHRM members-only toolkit: Managing Family and Medical Leave]
Companies sometimes get in trouble by relying on old stereotypes that a woman, and not a man, is the parent responsible for raising children and so only women need time off to bond, Lander and Crowley wrote.
"Male employees have moved beyond any real or perceived stigma of using parental-leave benefits and are demanding equivalent benefits," said Margaret Keane, an attorney with DLA Piper in San Francisco. Equivalent paid-leave benefits aren't just an issue for men, she added. Unequal benefits can put a disproportionate burden on the female parent.
"In our society, it's still largely a mistaken matter of perception that women are the birthers and men are the providers," said Charles Krugel, an attorney with his own practice in Chicago. "This is even despite the roles of LGBT [lesbian, gay, bisexual and transgender] parents, adoption and foster care."
Federal vs. State and Local Legal Requirements
Some employers mistakenly believe that providing unequal paid child-bonding leave cannot be problematic since federal law doesn't require such leave, according to Mark Kluger, an attorney with Kluger Healey in Florham Park, N.J. But Title VII prohibits gender discrimination, and the Equal Pay Act bars pay discrimination based on sex.
California, New Jersey, Rhode Island, Washington and New York City have paid-leave statutes that cover parental leave and other family-related leave, and legislation is pending elsewhere, Keane observed. "Market pressures will likely push broader adoption of employer-sponsored parental-leave programs," she said.
Additionally, many states have laws on pregnancy-disability leave, accommodation and parental leave. Some cities and counties do as well, Papst noted. "These laws can require either paid or unpaid time off. If an employer has employees in multiple locations, it should make sure that its parental-leave policy complies with all local laws," she said.
"Many employers have been confused by the morass of laws affecting time off for the birth of and bonding with children," Kluger said. At the federal level, "it all started with the FMLA [Family and Medical Leave Act], which provides for 12 weeks of unpaid leave for the birth or adoption of a child." He noted that the FMLA also allows time off for an employee's own serious health condition, including any pre- and post-birth health issues that the mother may have. "That put it in some employers' heads that the moms need more time to deal with the birth of a child than the dads"—which is true with regard to paid pregnancy-disability leave but not so with paid child-bonding leave.
Factoring In Cost
Due to the cost, most employers don't provide paid child-bonding leave, said Timm Schowalter, an attorney with Sandberg Phoenix and Von Gontard PC in St. Louis.
The Society for Human Resource Management's (SHRM's) 2017 Employee Benefits survey report found that 30 percent of respondents work for organizations that provide paid maternity leave while 24 percent said their organizations offer paid paternity leave. On average, organizations that offer paid leave for a new child provide 41 days for new mothers and 22 days for new fathers.
"The Estée Lauder policy was not so unique," Kluger said. "They just got caught."
Employers should ensure that their policies distinguish between disability leave following childbirth, which applies only to biological mothers, and bonding leave, which the EEOC has stated cannot distinguish between mothers and fathers under Title VII, Papst said.
"Progressive paid-parental-leave benefits are expensive, but they can be a very powerful tool for recruiting and retaining talent in an increasingly competitive marketplace for talent," Keane stated.
This lawsuit and the resulting settlement should not deter companies from implementing paid-child-bonding-leave policies but employers should ensure that these benefits apply equally to all new parents, said Jeffrey Beemer, an attorney with Dickinson Wright in Nashville, Tenn., and chair of the Employment Law Committee of the International Association of Defense Counsel.
Estée Lauder declined to respond to a request for comment.
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