Father’s Day came early for the class of new dads who settled their gender discrimination lawsuit last week regarding JPMorgan Chase’s parental leave policy. As we discussed here, this lawsuit, and the one against Estee Lauder that settled last year, shed light on the importance of treating new parents equally in the workplace, regardless of their sex. With the topic of parental leave in the news and at the forefront of political debate, there is still no clear answer on how much leave is the right amount or how to transition new parents back into the workplace most effectively. However, the EEOC has made clear that leave policies must offer the same amount of time for new moms and new dads, with a caveat. The policies at issue in both cases involved a “primary” and “secondary” caregiver distinction. This distinction, of which parental leave advocates are critical, is permitted so long as the employer is not enforcing the policy in a discriminatory manner. For example, a company cannot assume that a woman is the “primary caregiver” or require a new father to prove that he will assume “primary” caregiving responsibilities.
Of course, new moms who are disabled as the result of giving birth may also be entitled to paid disability benefits either by the state or under a company policy. The leave is job protected under California’s Pregnancy Disability Leave (PDL), and birth mothers can stack PDL next to their pure parental leave or state Paid Family Leave (PFL). Some companies are going one step further in expanding benefits. I have seen a handful of employers reconsidering their “Pregnancy Leave” policies too. In a move toward increasing benefits, some companies have broadened paid disability benefits to cover all disabled employees. Their rationale, in part, goes something like this: Having a paid pregnancy disability policy, but not paying disability leave for non-pregnancy disabilities adversely impacts women with infertility-related disabilities or other workers with a range of potential disabilities. If you have an existing parental leave policy or are considering adopting one, make sure to consider the logistics of enforcement and seek counsel on this evolving area of employment law.