The EEOC issued its new guidance on parental leave today. In it, they lay the basis for parity between company-offered maternity and paternity leave. In short, companies that offer mothers “time for care and bonding” beyond time for physical recovery/disability must also offer that “time for care” to fathers. This decision brings needed clarity to the emerging set of case law on paternity leave (see here, here and here) and is yet another indicator of the recognition of the importance of fatherhood and paternity leave.
This guidance is part of a larger and much more comprehensive document concerning pregnancy discrimination, disability and related employment concerns. You can read the entire document here. I’ve copied the relevant information below. After that is my analysis.
For purposes of determining Title VII’s requirements, employers should carefully distinguish between leave related to any physical limitations imposed by pregnancy or childbirth (described in this document as pregnancy-related medical leave) and leave for purposes of bonding with a child and/or providing care for a child (described in this document as parental leave).
Leave related to pregnancy, childbirth, or related medical conditions can be limited to women affected by those conditions.126 However, parental leave must be provided to similarly situated men and women on the same terms.127 If, for example, an employer extends leave to new mothers beyond the period of recuperation from childbirth (e.g. to provide the mothers time to bond with and/or care for the baby), it cannot lawfully fail to provide an equivalent amount of leave to new fathers for the same purpose.
Pregnancy-Related Medical Leave and Parental Leave Policy – No Disparate Treatment
An employer offers pregnant employees up to 10 weeks of paid pregnancy-related medical leave for pregnancy and childbirth as part of its short-term disability insurance. The employer also offers new parents, whether male or female, six weeks of parental leave. A male employee alleges that this policy is discriminatory as it gives up to 16 weeks of leave to women and only six weeks of leave to men. The employer’s policy does not violate Title VII. Women and men both receive six weeks of parental leave, and women who give birth receive up to an additional 10 weeks of leave for recovery from pregnancy and childbirth under the short-term disability plan.
Discriminatory Parental Leave Policy
In addition to providing medical leave for women with pregnancy-related conditions and for new mothers to recover from childbirth, an employer provides six additional months of paid leave for new mothers to bond with and care for their new baby. The employer does not provide any paid parental leave for fathers. The employer’s policy violates Title VII because it does not provide paid parental leave on equal terms to women and men.
If your employer currently offers maternity leave, this new guideline may help you, my fellow working dad. Here’s how:
- Many more employers offer maternity leave than paternity leave or generic parental leave
- If your employer offers maternity leave beyond “pregnancy and childbirth-related medical leave,” you are equally entitled to the leave that extends beyond medical leave.
- This does not obligate employers to offer parental leave at all, beyond the 12 weeks of unpaid leave under FMLA (unless they are in California, New Jersey and Rhode Island, see here)
- This does not obligate employers to offer maternity leave beyond medical leave, and if they do not, then this policy does not affect you.
As a an advocate for paternity leave, I am very happy at this announcement, although it falls short of my ultimate wish: paternity leave for all dads.
What do you think of these guidelines? Any stories to share? Let’s discuss in the comments section.
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PS- If you are interested, I’ve written quite a bit about paternity leave, you can see those articles here
PPS- I am not a lawyer (although I have friends who specialize in this area of law), so please check with your employer’s HR department or legal counsel before acting on these new guidelines. Finally, please understand that while you may be legally entitled to leave, there is still the potential for career consequences against men who use these policies.
PPPS- Thank you Cynthia Calvert, for the information! (The Center for Work-Life Law, where Calvert is one of many leaders, does excellent work for the rights of working parents and is impressively pro-both-genders on these topics)