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Is maternity leave really discriminatory?  Is it unfair?  Yes, says the Equal Employment Opportunity Commission, the federal watch dog for anti-discrimination employment laws.  While this may sound like theater of the absurd, there is an explanation.

There is no question pregnant employees deserve praise and leave related to pregnancy and pregnancy related conditions.  Oftentimes to accommodate pregnant employees, companies have maternity leave policies.  But, maternity leave policies, by their very nature, favor a female over a man.  To address this, companies have created parental leave policies.  Now everyone is covered, unless the policy gives women more time off then men.  If so, again we see discrimination.  As farfetched as this may seem, this is exactly what happened just last year when Estee Lauder got sued.    

In August 2017, the EEOC filed suit against Estee Lauder Companies, Inc. Estee Lauder had a male employee who worked in its Maryland store who sought parental leave.  He requested but was denied, six weeks of child-bonding time, the same amount of time biological mothers automatically receive.  He was instead granted only two weeks.  The EEOC contended this policy violates Title VII of the Civil Rights Act of 1964, as amended.  Estee Lauder recently agreed to a $1.1 million settlement to resolve this dispute and will revise its policies! 

The EEOC previously issued guidance on parental leave.  It notes parental leave must be provided to similarly situated men and women on the same terms.  For example, an employer who extends leave to new mothers to bond with their child, cannot refuse to provide an equivalent amount of leave to new fathers for the same purpose.  This was the company’s down fall.     

Employers should examine their leave policies and ensure they are gender neutral.  If the employer has a parental leave policy the leave must be the same for both the male and female employees.  If an employer would like a mechanism to provide additional leave to a woman who gave birth, it should consider a paid disability leave policy.  FMLA may also be available if the employer has 50 or more employees.  Various other state and local laws may apply depending on the size of the company.   The key is if bonding is the goal of the policy, men and women must both be eligible.  But, if recovering from the physical trauma of birth is the issue, the disability policy is the answer – then a woman is in a unique position, distinguishable from that of her male counterpart. 

Brody and Associates regularly provides counsel on civil rights issues and employment laws in general.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.