The WORLD Policy Analysis Center’s recent report on paid parental leave noted that out of the 34 industrialized member countries in the Organisation for Economic Co-operation and Development (OECD), the United States is the only country without guaranteed nationwide paid parental leave for mothers.

In addition, the United States is one of only two of the member countries (the other being Switzerland) that does not guarantee paid parental leave to fathers. The other OECD member countries, all of which provide some sort of national paid parental leave to both mothers and fathers, include: Australia, Austria, Belgium, Canada, Chile, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Israel, Italy, Japan, Korea, Luxembourg, Mexico, the Netherlands, New Zealand, Norway, Poland, Portugal, Slovak Republic, Slovenia, Spain, Sweden, Turkey, and the United Kingdom.

Although no federal statute in the United States mandates paid parental leave, some companies still opt to offer such benefits to employees. Yet, employers who offer paid parental leave for mothers only may be at risk of a claim for gender discrimination if they are not careful.

The Equal Employment Opportunity Commission’s (EEOC) Guidance on Pregnancy Discrimination and Related Issues instructs employers to differentiate between leave time provided for a mother to recover from the physical pregnancy and childbirth (pregnancy-related medical leave) and leave time provided for a mother to take care of and bond with a new child (parental leave).

The EEOC’s guidance notes that pregnancy-related medical leave may be restricted to mothers, while parental leave, if offered, must be given to men and women on equal terms. Thus, the agency directs that any leave a company provides for a mother that is beyond the time needed to recover from the physical conditions surrounding childbirth must also be given to fathers.

Employers who wish to avoid making such distinctions in leave time and avert any risk involved in providing unequal maternity and paternity leave are now turning to gender-neutral parental leave policies – where equal time is allotted for both men and women after the birth or adoption of a child. Deloitte, Etsy, Facebook, Netflix, and Twitter are among the companies that have joined this movement.

Legal Risks of Stereotyping

Other employers have simply replaced maternity and paternity leave policies with those that include the terms “primary caretaker” and “secondary caretaker” in an effort to support gender neutrality. However, such policies have endured criticism for continuing to perpetuate entrenched gender stereotypes and may still carry litigation risks for employers. The challenge becomes how to decide who is a “primary caregiver” in a society where family structures are changing and the roles of parents have veered away from the old-fashioned breadwinner-homemaker model.

Just last summer J.P. Morgan Chase came under attack for a similarly worded policy that offered “primary caregivers” 16 weeks of paid time to bond with and care for a new child. In contrast, the policy only permitted “non-primary caretakers” to take two weeks of paid leave. When requesting leave as the “primary caregiver,” a male employee was told that mothers are automatically designated as the primary caretaker, and thus he would not be permitted to take more than two weeks of leave unless he could show that his wife had returned to work or was medically incapable of taking care of the child. The male employee then filed a charge of discrimination with the EEOC claiming that the company policy discriminates against men by “presumptively limiting fathers to the role of non-primary caretakers.”

Estee Lauder settled a similar lawsuit with the EEOC this past spring that was brought on behalf of a male employee who was denied equal parental leave. The company policy in that case allotted differing parental leave time to “primary” and “secondary” caregivers to bond with a new child. Although this policy appears to be gender-neutral on its face, in practice, the company again labeled mothers as primary caregivers, with the only exception being if a father had hired a surrogate.

These cases highlight the legal risks involved when companies rely on gender stereotypes to craft policies. Forward-thinking companies recognize this legal exposure and have begun removing all such distinctions by offering generalized parental leave to all employees to bond with a new child.

Benefit to Companies

Besides reducing litigation risk, why are companies beginning to implement truly gender-neutral parental leave policies? Overall, employers understand that such policies demonstrate a recognition of the changing attitudes surrounding family structures and parenting. Providing parental leave to all employees equally allows companies to openly promote a more diverse and supportive corporate culture that is committed to its employees – which employees respect and appreciate.

In turn, this allows such companies to recruit and hire better, more talented workers because those workers feel valued. Generous gender-neutral parental leave policies are a way for companies to invest in the overall well-being and happiness of their employees, which in the long run translates into higher worker productivity, greater employee retention rates, and increased profit. Besides generalized benefits to employees, there are also unique advantages such policies provide to men, women, and the LGBTQ community.

Benefits to Men

Thanks to the old breadwinner-homemaker family model, there is residual stigma men face when requesting time off to bond and take care of a new child. Interestingly, a 2017 research report prepared by the Society for Human Resource Management found that in companies offering both paid maternity and paternity leave, there is an immense disparity between percentage of overall leave taken for females versus males – 66 percent of female employees taking maternity leave used the entire allotted leave period, compared to only 36 percent of male employees who had exhausted all of their allotted paternity leave time.

This can be seen as a reflection of gender norms that still persist regarding caretaking – that even in companies where paid parental leave is offered to both men and women, men are not taking full advantage of this benefit. Thus, companies that provide equal parental leave and encourage employees to take it can work toward combating entrenched gender stereotypes surrounding caretaking so that fathers feel it is socially acceptable to take leave to be with new children without having to worry about detrimental career consequences.

Benefits to Women

The pay disparity between men and women and the “glass ceiling” many women face in their careers is due in part to the fact that women take long leaves (or even drop out of the workforce temporarily) at crucial points during their career to raise and take care of children. By offering equal parental leave time for men and encouraging fathers to use such time, the negative repercussions women face in the workforce may be reduced.

The more support a father can provide at home due to gender-neutral parental leave policies means that mothers are more likely to be able to continue working rather than dropping out of the workforce entirely. This allows women to progress their career opportunities more evenly with men by reducing the attrition of recent mothers and promoting equality in caretaking responsibilities.

Benefits to LGBTQ Community

In addition to the above-mentioned benefits, parental leave offered to all employees on equal terms positively impact the LGBTQ community by encouraging and supporting their careers and decision to have families and raise children. Policies that aim to be truly gender-neutral and inclusive should offer leave to all new parents – both males and females, for biological, adoptive, and surrogate children.

Overall, gender-neutral parental leave policies give employees the freedom to fully embrace caretaking responsibilities while easing back into the workplace. Employers should keep in mind the risks involved in implementing perceived gender-neutral policies and should carefully craft any such policy so that employees are not required to “prove” themselves to be a primary caregiver.

For assistance with drafting or revising employee handbooks or company policies, contact Clouse Brown PLLC. Our attorneys counsel employers and business owners on how to comply with state and federal employment laws. We also assist executives who experience workplace discrimination or harassment.

Keith Clouse

About Keith Clouse

Keith Clouse is an employment law specialist with over 25 years of experience representing senior-level and C-suite executives, business owners, physicians, and corporations in complex employment litigation, arbitration, and negotiations. High-level business executives, physicians, and other professionals consistently rely on Mr. Clouse for employment law expertise and advice on employment contracts, covenants not to compete, severance agreements, equity awards, trade secret disputes, and breach of fiduciary duty claims. He is Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization. He can be reached at keith@clousebrown.com.

Subscribe to Our Newsletter
close slider
Email