EEOC Issues Guidelines on Parity for Maternity and Paternity Leave

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.

Parity for fathers in parental leave is one step closer thanks to new EEOC guidelines!
Parity for fathers in parental leave is one step closer thanks to new EEOC guidelines!

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.

PARENTAL LEAVE
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.

EXAMPLE 17
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.

EXAMPLE 18
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.

However:

  • 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)

14 thoughts on “EEOC Issues Guidelines on Parity for Maternity and Paternity Leave

  1. Great to see this progress towards granting dads paternity leave! It still seems like a very small step, and the comparatively short duration of maternity leave compared to here in the UK still shocks me, but it’s definitely a step in the right direction.

    • Hi Jonathan. Just to clarify, there is still no law mandating paid parental leave. We still just have the option for unpaid leave through a 20 year old law.

      All I’ve highlighted here is that If a company offers maternity leave beyond that for physical recovery, that dads are equally eligible for that extra leave.

      A all step, but still good recognition of the importance of paternity leave

  2. I’m very interested in how this new guidance will impact the companies where paternity leave for bonding is already on the books. My employer has 2 weeks paid time for bonding to any parent of a newborn or adopted child. The fine print indicates that the time for bonding runs concurrently with the short term disability leave in the case of the birth mother, and is not added onto the disability leave. Do the new guidelines address this scenario? And in practical terms, will the guidance end up discourage granting paternity bonding time if the maternity bonding time is no longer permitted to be concurrent to medical leave?

    • Hi Laura. Thanks for reading and your comment.

      The answer is that not sure. (I am not a lawyer). But it seems that maternal bonding time should not be concurrent with disability leave- it should be added afterwards.

      I will reach out to a legal expert to address this important question.

      You are not the first to see a possible downside to this new guidance. Others have conjectured that an employer could cancel all bonding time for moms so that they wouldn’t also have to extend the to dads. Perhaps I’m naive, but most of the employers I interact with through my professional work actually do want todo the right thing by their employees, so I don’t see this as a huge problem. The bigger problem are the many companies that don’t offer any leave for anyone.

      Thanks again and I’ll try to find averted answer for you.

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