Saturday, June 17, 2017

When do parental leave policies discriminate against fathers?

Just in time for Father's Day, the ACLU and the law firm Outten & Golden have filed a high-profile EEOC charge on behalf of J.P. Morgan Chase employee Derek Rotondo, who alleges that his employer's parental leave policy discriminates against men. The charge alleges that, pursuant to his employer's policy, primary caregivers are given up to 16 weeks of paid leave immediately following the birth or adoption of a child whereas non-primary caregivers can only get two weeks of paid leave. Rotondo further alleges that the employer presumptively treats fathers as non-primary caregivers and only treats a father as a primary caregiver if the mother has returned to work or is medically incapable of caring for the child. In Rotondo's case, he could not qualify for either of those exceptions because his wife, as a teacher, was off for the summer, and she was recovering well from childbirth, so she could not be considered medically incapable of caring for their newborn son.

Rotondo's charge presents a fairly straightforward claim of sex discrimination, alleging that assumptions about primary caregiver status are grounded in sex stereotypes about childcare responsibilities. This stereotype also arguably disadvantages women by presuming that men are society's breadwinners and that women should be more willing than men to take time off from their professional lives to raise a family.

Primary caregiver policies are not facially sex-discriminatory, but as suggested by Rotondo's allegations, their enforcement may be driven by sex stereotypes. Given such stereotypes, male employees also may assume that they cannot be primary caregivers or may fear that they will be stigmatized for wanting to share parental responsibilities on an equal basis. More generally, primary caregiver policies have been criticized as promoting the outdated notion that a child has one main parent. Although the ACLU has targeted J.P. Morgan Chase's particular leave policy because it has allegedly been enforced in a discriminatory manner, it's a good bet that the organization has all primary caregiver policies in its crosshairs.

A significant wrinkle that has been overlooked is that even if women and men should be entitled to the same amount of parental leave, an employer may provide women with leave to recuperate following childbirth. If an employer provides female employees up to 16 weeks of leave after giving birth, that period really includes both pregnancy-based leave and parental leave. If men are also given 16 weeks of leave following the birth of a child, that leave is solely parental leave. Some countries with generous parental leave policies, such as Denmark, Belgium, and Hungary, provide women with an exclusive period of leave following childbirth (see this article). Following that period of recuperation, leave is more evenly divided between fathers and mothers. As suggested by such policies, it may not necessarily discriminate against men if women get more leave than they do following the birth of a child.

This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.