Rina RussoAt one time, it was common for employers to offer maternity leave to new mother employees, but not offer any leave to new father employees.  However, in 2015, the Equal Employment Opportunity Commission (EEOC) issued its most recent enforcement guidance for employers on parental leave policies:

“[E]mployers should carefully distinguish between leave related to any physical limitations imposed by pregnancy or childbirth (described in this document as pregnancy-related medical leave) and leave for purposes of bonding with a child and/or providing care for a child (described in this document as parental leave). Leave related to pregnancy, childbirth, or related medical conditions can be limited to women affected by those conditions. However, parental leave must be provided to similarly situated men and women on the same terms. If, for example, an employer extends leave to new mothers beyond the period of recuperation from childbirth (e.g. to provide the mothers time to bond with and/or care for the baby), it cannot lawfully fail to provide an equivalent amount of leave to new fathers for the same purpose.”

Despite this guidance being in place for several years, many employers have not implemented changes to parental leave policies.  In 2017, the EEOC filed suit on behalf of a class of 210 male employees of one of the world’s leading makeup and skincare companies for providing new fathers less paid leave to bond with a newborn, or with a newly adopted or fostered child, than it provided new mothers.  Additionally, the company provided new mothers a period of a temporary modified work schedule upon returning from leave, while not making the same allowance for fathers. The EEOC procured a $1.1 million settlement for the class, as well as a court-imposed requirement that the company revise its parental leave policy to provide all eligible employees (mothers and fathers) with the same amount of paid leave for child bonding and the same period of modified work schedules.  More recently, additional high-profile cases have resulted in similar million dollar plus settlements.

With these types of cases on the rise, and the EEOC making clear that bringing these types of cases is on its enforcement agenda, employers should review their parental leave policies now.  In revising such policies, employers should be aware of certain distinctions that can be made between mothers and fathers.  Employers are free to offer additional leave benefits to mothers as opposed to leave provided to fathers when the leave is related to physical limitations imposed by pregnancy or childbirth.  However, leave time that relates to bonding or caring for the new child must be equal for both mothers and fathers.

Rina Russo is a partner with Walter | Haverfield who focuses her practice on labor and employment law. She can be reached at 216-928-2928 or at rrusso@walterhav.com.

*A version of this article appears in Crain’s Cleveland Business.