Businesses struggle to balance family-leave needs of mothers and fathers

In 2013, Estee Lauder adopted a new parental-leave policy that not only provided paid time off to new mothers to recover from childbirth but also granted new mothers an additional six weeks of paid parental leave for child bonding. Under the new policy, the company offered new fathers two weeks of paid leave for such bonding. On Aug. 30, the Equal Employment Opportunity Commission announced a class-action lawsuit against Estee Lauder, claiming the company's leave policy violated Title VII of the Civil Rights Act of 1964 and the Equal Pay Act of 1963. Both laws prohibit discrimination based on sex in pay and benefits.

Indeed, it seems companies that are often trying to do good by offering paid parental leave increasingly find themselves in such trouble.

JPMorgan Chase & Co. is facing a class-action discrimination charge for allegedly offering unequal parental-leave benefits to male and female employees. According to the charge, filed June 14, Derek Rotondo requested, upon the birth of his second child, the 16-week paid parental leave that JPMorgan offered, but he was told by the company that 16 weeks of leave was available only to primary caregivers after the birth or adoption of a child, while nonprimary caregivers were entitled to only two weeks of paid leave. Rotondo discovered that JPMorgan Chase presumptively considered mothers to be primary caregivers — that fathers could take the 16-week primary-caregiver leave only under very specific circumstances. This presumption that women were the primary caretakers was what Rotondo has alleged to be illegal.

Employees in the United States are not entitled to any paid parental leave under federal law. Under the Family and Medical Leave Act (FMLA), certain employees must be given 12 weeks of unpaid leave upon the birth or adoption of a child. The policies of Estee Lauder and JPMorgan Chase, therefore, could be considered generous. However, in crafting these paid-leave policies, employers are increasingly running afoul of what the law requires of them in terms of equality in the workplace.

What is a well-meaning employer to do? One can imagine employers being tempted to throw up their hands in frustration, discard their company paid-parental-leave policies, and simply offer the bare minimum required under the FMLA. This is not the solution.

Numerous studies have shown the benefits to parents and children of time off with newborn babies, benefits that include decreased infant-mortality rates, increased IQ scores in children whose parents take leave, and increased family financial stability. Offering paid leave enhances these benefits because it increases the likelihood that new mothers and fathers can afford to take advantage of the leave. Additionally, paid leave is beneficial for employers because it tends to increase employee commitment to the company once they return from leave, as well as increasing employee productivity since employees don't feel that they have to choose between work and family in the early stages of parenthood.

Thus, employers who wish to offer paid-parental-leave programs should continue to do so, while reevaluating their policies to be sure they stay within the confines of the law. Most important, employers need to be sure they are treating workers equally. This does not mean they have to give equal periods of paid leave to birth mothers and fathers. The law actually does not require that.

Because birth mothers are recovering from the medical consequences of pregnancy, employers are allowed, under the law, to offer birth mothers paid time off to recover from pregnancy without offering such similar time to fathers. According to EEOC Guidelines on Parental Leave, what employers cannot do is offer parental-leave time not associated with medical recovery (say, for bonding with the child) on an unequal basis to mothers and fathers. Any time given to women for bonding with their new babies must also be offered to men. As illustrated by the JPMorgan Chase case, companies need to be careful about assuming the mother will be the primary caretaker and, thus, offering mothers leave well in excess of what is automatically available to fathers.

In short, companies should use their common sense. If the paid leave being offered can be justified as medically necessary to help a woman recover from pregnancy and delivery, then they should feel free to offer it without similar leave for fathers. Otherwise, companies need to assume that men and women equally desire to bond with their babies and, thus, provide them the equal opportunity to do so. Anything else reinforces sex stereotypes, is bad business, and is, simply, illegal.

Natalie Pedersen is an assistant professor in the department of legal studies at Drexel University's LeBow College of Business. nbp24@drexel.edu