You can use the decision tree below to help determine if your existing paid or unpaid parental leave policy (or short-term disability policy, if used as a proxy) is discriminatory and needs updating. As part of our program, Parento crafts compliant paid parental leave policies. Curious if your policy is non-compliant?
The decision tree is not legal advice or guidance and only a portion of what’s required to create a compliant policy, and cannot replace the guidance of legal counsel.
There were over 20,000 charges filed under Title VII alleging sex-based discrimination in the past year, with companies paying out over $150M; this is not an issue to be trifled with.
Does your company offer more paid (or unpaid) time off to moms than dads?
Does your company have a paid maternity leave policy that’s longer than a paid paternity leave policy?
Or how about a primary vs secondary caregiver policy? Is it defined in such a way that the primary caregiver will always be the person that gave birth?
If a policy is anything like this, there’s a very good chance the policy is illegal and violates EEOC regulations. Employees will sue companies over these policies, or the EEOC can fine them.
Unless women receiving additional time off or pay is specifically due to pregnancy disability (i.e.using a short-term disability insurance policy) moms cannot receive more pay or time off than dads or the policy is likely discriminatory and illegal. Take a look at this Parental Leave Policy Discrimination Tree for a quick check.
If a company offers any time off for parental leave, whether paid or unpaid, it needs to be broken up into two parts: disability leave (for pregnant women) and child bonding leave.
An easy test is to determine how much time an adoptive mom would receive vs. an adoptive father. If they’d receive different lengths of leave, it’s blatantly discriminatory. If they’d get the same time, that’s good, but the policy isn’t out of the woods yet.
A birth mom cannot receive more time off than a birth father unless that additional time off is directly tied to the medical needs of the birth mom. And in those situations, that time off needs to be treated the same way any other disability is. If it’s not, then it wouldn’t be disability leave or pay, but child bonding leave. That’s how you know the 12 weeks of paid maternity leave and 2 weeks of paid paternity leave are illegal.
Companies that leverage an existing short-term disability policy as a proxy paid maternity leave policy and offer any additional time off or top-up are at increased risk of discrimination because the policy isn’t crafted around child bonding leave.
There’s precedent on this issue and it’s very easy for an employee, say an expecting dad not getting the time he’d like, to bring a lawsuit.
Lawsuits over the past few years have established precedent and underscored companies’ exposure. The courts are not employer friendly in this area. JPMorgan Chase settled a lawsuit over its primary vs. secondary caregiver policy for $5,000,000 while Estee Lauder paid $1,100,000 in fines to the EEOC because it treated new fathers differently from new mothers.
We’ve spoken to hundreds of HR leaders, and discovered that the vast majority of companies that have any paid parental leave policy breaks it into two policies: one policy for mothers and another for fathers, or alternatively, primary and secondary caregivers. With proper crafting and administration, different lengths of leave for men and women are acceptable, but very few companies have accounted for the regulations relevant to child bonding and pregnancy disability leave. As a result, the vast majority of policies do not comply with regulations, exposing companies to lawsuits and EEOC enforcement.
So, how can you tell if your policy is non-compliant?
It’s a simple starting point, but if so, this is a red flag. As mentioned above companies can only have 2 different lengths of leave (whether paid or unpaid) if the longer policy incorporates, and is administered as, medical or disability leave concurrently or in addition to child bonding leave.
An easy test:
Would a dad that adopts receive the same time off as a mom that adopts? If not, the policy is illegal. If yes, ask, would a birth father that works for you receive the same amount of time
Further, companies must provide the same return-to-work support and accommodations to fathers as mothers, a wrinkle often forgotten. For instance, if a father requests a part-time return to work schedule that new mothers regularly receive, the father must receive it as well.
If a firm offers 12 weeks of paid maternity leave and 2 weeks of paid paternity leave, the 10 week difference must be specifically provided for medical reasons (e.g. pregnancy disability, recovering from birth, etc.). Adoptive mothers have no physical or medical need for leave and can only receive the 2 weeks that fathers receive. If an adoptive mother receives the full 12 weeks of maternity leave, the company’s policy discriminates based on gender.
Further, most birth mothers physically recover between 6 and 8 weeks after birth. If a doctor would sign a birth mother off to return to work 6 weeks after giving birth, under that 12 week maternity, 2 week paternity leave policy, she cannot receive the full additional 10 weeks because she no longer qualifies for medical or disability leave.
First, how do companies plan to enforce these primary/secondary caregiver policies? What verifiable data and information can they reasonably request that won’t get them into legal trouble? Logistically, it’s difficult, if not impossible, to confirm that a parent saying they have taken on the role of primary caregiver isn’t actually a secondary caregiver under the policy without defining the primary caregiver as a birth mom, which most policies do.
Too many policies define the primary caregiver in such a way that only a woman who just gave birth, who will inherently have to stay home for weeks to physically recover can qualify as a primary caregiver. Such definitions do not comply with EEOC regulations.
Moreover, the whole point of having the primary/secondary caregiver policies is to restrict the number of people that qualify for a longer period of paid parental leave, reducing company expenses. Yet to avoid the legal minefield of primary and secondary caregivers, definitions can become so broad that they don’t effectively prevent anyone from qualifying as a primary caregiver, defeating the purpose of having a primary/secondary caregiver policy in the first place.
Ultimately, though, primary/secondary caregiver policies either provide no legal insulation or are so poorly defined as to defeat the purpose, which is why we don’t craft our program policies that way. Remember, both J.P. Morgan Chase and Estee Lauder had primary/secondary caregiver parental leave policies.
Simple, offer one single paid parental leave policy. No maternity and paternity leave, no primary and secondary caregiver. Just offer all parents, men or women, birth or adoptive, the same length of leave, level of pay, and return-to-work support. Additionally create clear and simple guidelines for what it takes to qualify for access to paid parental leave benefits, e.g. length of service requirements, etc.
Our ability to help companies craft compliant and effective paid parental leave policies stands as one of our key competitive advantages. Because PEOs, short-term disability insurers, benefits brokers, etc. that help with HR, benefits, and policies don’t focus on paid parental or family leave, they too often can’t provide sufficient guidance.
If you need help crafting a simple, yet compliant paid parental leave policy, Parento is here to help!
For many companies, it can seem counter to long-standing views and company culture to have one paid parental leave policy. Even though men don’t have to physically recover from birth, birth mothers deserve to have someone around while physically recovering to help out. Plus, if fathers receive less leave, they end up getting less sleep than mothers because they are up all night then have to go to work.
