If the EEOC’s recent lawsuit against Estee Lauder is any indication of things to come, now is a good time to review your parental leave policy. The crux of the policy at issue is a grant of six weeks of paid parental leave for a primary caregiver and two weeks for a secondary caregiver. On its face, it seems lawful and non-discriminatory, but what about in practice? 
A week before the EEOC filed suit, I was at a cocktail party chatting about parental leave with a business owner. We discussed different trends in these types of policies and the concept of “primary” and “secondary” caregiver delineations. “How do you know if someone is really a primary caregiver?” he asked. “What if you know the father is definitely not the primary caregiver but insists he is for purposes of the parental leave policy?” Good questions. I paused and responded that I wouldn’t recommend challenging the caregiver status and would operate on the honor system.
In the Estee Lauder case, the practice was to assume the mother is the primary caregiver unless the father proves otherwise or the birth is through a surrogate. This assumption treats men less favorably than women and is the foundation of this lawsuit based on gender discrimination.
I have seen, and even drafted, numerous policies relying on caregiver status and have not seen any implementation issues based on gender. But, in light of these recent lawsuits, I’ll be adjusting my recommendations. Some issues to consider:
- Whether the policy treats men and women differently based on gender stereotypes (e.g. maternity vs. paternity)
- How parental leave coordinates with any state or local paid parental leave (information on San Francisco’s required policy here)
- How parental leave coordinates with any disability policy, as policies that seek to deduct state disability payments from parental leave policies treat disabled mothers less favorably than non-disabled fathers
- Ensure compliance with PDL, FMLA and CFRA in conjunction with any disability and/or parental leave policy
- With pending litigation, the law in this area could change soon, so seek counsel to be sure you are up to date