Wednesday, September 6, 2017

Dads are parents, too — baby bonding and sex discrimination

Should new dad’s receive the same amount of time off from work to bond with their newly born child as do women? That is the question at the center of a lawsuit the EEOC recently filed against cosmetics giant Estée Lauder.

According to the EEOC, Estée Lauder’s parental leave program provides eligible new mothers six weeks of paid parental leave for child bonding (plus six additional paid weeks for childbirth recovery). Under the same policy, however, Estée Lauder only offers new fathers whose partners have given birth two weeks of paid leave for child bonding.

EEOC Washington Field Office Acting Director Mindy Weinstein says about this lawsuit, “It is wonderful when employers provide paid parental leave and flexible work arrangements, but federal law requires equal pay, including benefits, for equal work, and that applies to men as well as women.” Adds EEOC Philadelphia District Office Regional Attorney Debra M. Lawrence, “Addressing sex-based pay discrimination, including in benefits such as paid leave, is a priority issue for the Commission.”

What does this mean for your policies? If you provide unequal post-childbirth baby-bonding benefits to male employees as compared to female employees, you might be putting yourself in the EEOC’s spotlight. 

Indeed, men and women are physiologically different (women give birth; men do not), and this key difference justifies some policy differences. It should be lawful to differentiate gender-based post-childbirth leave based on the medical need to recover from the trauma of childbirth. Bonding, however, is totally different. Indeed, I see no reason, other than an archaic view of the role of men versus the role of women in raising children, why mom is entitled to six paid weeks but dad only two.

To conclude, I was going to offer some practical suggestions to how to handle paternity-leave issues. But, Suzanne Lucas, the Evil HR Lady, beat me to it:
  • Men and women can both be the primary parent. While you can certainly say only one parent can fill that role if both parents work for your company, you should otherwise take the employee’s word for it.
  • Legally, you have to allow up to 12 weeks of unpaid leave for any parent to take care of new baby, a new foster child, or newly adopted older child. Don’t ever assume that the dad will not be the one to take this leave that is guaranteed under FMLA. Again, if both parents work for you, you can limit this to 12 weeks total.
  • Don’t limit leave to married couples, or heterosexual couples. Babies need care, period.
  • Take a page out of Facebook’s manual, and don’t require employees to use parental leave in one lump. [I'm not sold on this point, as it make leaves much more difficult to administer, could lead to abuses, and certainly leads to scheduling difficulties.]
  • Double check with your attorney before implementing the policy. Employment law is complex and varies from state to state. It’s always cheaper to pay an attorney before than it is to pay an attorney to defend you. [AMEN!]