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$5 Million dollars.  That’s the price tag JP Morgan Chase Bank is paying out to 5,000 men.  In each case, the men were given two weeks of parental leave to in lieu of the 16 weeks it offered women when the employee’s family welcomed a new baby. 

Of all the issues we address, this is one our clients find so hard to comprehend.  Employers who offer maternity leave often do so for good and altruistic reasons.  The problem is maternity leave policies are discriminatory.  Why?  Because, they make a distinction based on sex.  These policies consider sex and nothing more to determine how much leave is given.  This just isn’t allowed. 

Parental leave policies, while sounding better, can also be discriminatory when they too make a distinction based on sex.  As we previously wrote, Estee Lauder paid $1.1 million when they discriminatorily implemented their parental leave policy.  Now JP Morgan Chase has to pay a hefty price tag as well.  You do not want to be next.

JP Morgan’s policy allowed parental leave for both the primary caregiver of a new child and the non-primary caregiver.  The primary caregiver got 16 weeks. The non-primary caregiver got 2 weeks.  The problem is HR assumed the non-primary caregiver was always the man and the primary caregiver was always the woman.  This is classic gender stereotyping.  Several men argued they were the primary caregiver and would have taken the 16 weeks had they been allowed.  Thus, the $5 million settlement.

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.  Note, however, the policy cannot only provide benefits to pregnant women, it must also provide equal benefits for men and women dealing with other disabling health issues.  FMLA may also be available if the employer has 50 or more employees.  If the employer is in New York State, (and now Connecticut) paid family leave may also be available. 

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 – as a woman who gives birth is in a unique position compared to her male (or non-birth giving female) partner. 

Brody and Associates regularly provides counsel on leave policies, as well as employment law issues in general.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560