Back in 2015, in his last week in office, then Massachusetts Governor Deval Patrick signed a bill that converted the Maternity Leave Act into the Parental Leave Act. Although the new law implemented a number of changes, including that the leave is available to both men and women, it did not provide for paid leave. As a result, parental leave—leave taken after the birth or adoption of a child—remains unpaid in Massachusetts unless the employee chooses to use other available paid time off during the leave. We are sometimes asked by our clients whether they can pay the employee during all or some of the leave or provide more leave in some circumstances. The answer: it depends. Some recent settlements help to explain why.
The EEOC Cracks Down
The Equal Employment Opportunity Commission (EEOC) has been taking a hard look at cases in which employers pay, or may pay, male and female employees differently when taking leave after the birth of a child.
Some companies structure their parental leave through two-tiered systems distinguishing between “primary” and “secondary” caregivers or provide for greater paid leave benefits for female employees over male employees. While employers may have the best intentions when implementing these policies, they can be viewed as discriminatory against male employees and the EEOC is taking notice.
Millennial men—those born between 1982 and 2000—are changing perceptions when it comes to parental roles. In a recent Hill Holiday study, 75% of millennial men considered themselves to be a primary caregiver with 93% responding that they would be happy if all men and women had equal parenting and household responsibilities in 10 years. This shift in gender roles in American families has prompted many employers to implement gender-neutral paid parental leave policies in place of outdated two-tiered systems.
Companies that have been slower to adapt have faced harsh consequences. Last year, the EEOC brought a class action complaint against Estee Lauder for providing male employees with less paid leave for bonding time than their female counterparts. Estee Lauder settled the case for $1.1 million and was required to implement gender-neutral policies, such as allowing new fathers to take advantage of temporarily modified work schedules that were previously afforded only to female employees.
JP Morgan Chase settled a similar case just this year involving an internal policy that presumptively denied male employees status as primary caregivers. The policy entitled male employees to two weeks of paid leave, instead of the full 16 afforded under the policy to primary caregivers. Males could take the full leave only by proving that their child’s mother had returned to work or was medically incapable of caring for the baby. JP Morgan Chase settled the case for $5 million and revised its policy to clarify that both fathers and mothers were eligible for the 16 weeks of primary caregiver paid leave.
“What would a man do on parental leave—watch his wife unload the dishwasher?”
This alleged statement is just one of many included in a recent lawsuit filed against Jones Day, one of the world’s largest law firms. This latest lawsuit is based on an alleged two-tiered parental leave policy, which automatically entitled new mothers to 18 weeks of paid leave and restricted fathers to 10 weeks. While Jones Day has stated that the policy was designed to include disability leave for new mothers, the ex-employees who filed the suit argue that the policy was not properly conveyed to new employees. The lawsuit also alleges Jones Day perpetuated a corporate culture that openly discriminated against male employees for exercising their parental leave rights.
Ensure your policies are gender neutral
If your business chooses to offer more parental leave than the law requires and/or wants to pay employees during some or all of the leave, you should review your policies to ensure that they provide equal leave to all new parents and are free from gender-based language. In addition, employers should make sure managers understand the terms of company leave policies and that employees are adequately informed of their equal rights to take parental leave.