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Locality: United States - Kentucky

I work for a small (<10 employees) accounting business. The owner recently promoted me to an HR-equivalent position to handle internal payroll and time off, and she asked that I write an official time off/leave policy, which has until now been determined by her on a case-by-case basis.

I submitted my rough draft to her earlier today, and she approved of most of it, except for a section of parental leave that she strongly disagreed with. I had several weeks of full paid time off for both women and men. She argued that was fine for maternity leave, but paternity leave should be much shorter - days rather than weeks. Men who had very little involvement in childcare would nevertheless take the additional weeks off because "Why not?".

While I found her statement to be generally problematic, I do understand the reasoning behind it. We have few enough employees that extended absence from even one constitutes a significant extra workload on everyone else in the office. I fear, however, that applying different rules to men and women would be discrimination based on sex, would could make the company open to legal action (unless I am misunderstanding the law here?)

I tentatively outlined a couple of scenarios for her, such as what if the mother dies in childbirth? Or what if the mother works at a job with no paid maternity leave and must go back to work ASAP? She relented a little at this and suggested rewording the paternity leave section to say that the "Primary Caregiver" of the new child would receive the weeks of time off, while a "Secondary Caregiver" would only have the few days. In practice, this would almost always favor the mother, but not explicitly ban males from taking the full time off in unusual circumstances.

Legally speaking, is this an acceptable compromise? Or is the premise of my question flawed by misunderstanding discrimination laws?

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    It seems to me that you need to have a lawyer review your policy. Making important policy decisions based on advice from Internet randos seems like a serious risk to your employer. – Nate Eldredge Jun 7 '19 at 19:15
  • I don't know if Nate agrees, but this is really more of a workplace problems questions than an exact law question since it deals with work etiquette and accommodating everyone. @NateEldredge do you agree this should be moved to The Workplace SE? – Putvi Jun 7 '19 at 19:17
  • @nemo3590 I don't mean that as in we don't want to help you, but just that your question focuses more on workplace etiquette than law, so we may not be as much help as people who focus on workplace etiquette. – Putvi Jun 7 '19 at 19:20
  • @NateEldredge I strongly suggested running it by an attorney, but her initial attitude was that she did not care if it was legal or not. Maybe she will change her mind, but this question is mostly so that I can be prepared to field questions from coworkers in the future. Thanks for the comment! – nemo3590 Jun 7 '19 at 19:21
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    I get what you are saying, but leave for both parents under the Family and Medical Leave Act does not affect a business as small as the one you work for. I just meant that because of that and court rulings saying pregnancy is a medical condition, that we can't be as of much help as the workplace people. I admit they are randos and probably hyper sensitive to workplace stuff. Trust me, I've called plenty of people on SE a pain, so I know what you mean, but honestly, that is kinda there realm. – Putvi Jun 7 '19 at 19:28
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There are two main reasons to provide parental leave. One is that childbirth is basically a physical trauma, and people who give birth need time to physically recover from it; this is sometimes called "pregnancy-related medical leave." The other is that a company wants to do right by their employees and give them time to care for and bond with their new babies; this is what is called "parental leave".

According to federal government, it is legally permissible to offer women "pregnancy-related medical leave" but deny this benefit to men. However, it is not permissible to provide "parental leave" unequally to the genders.

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.

The guidance document also contains a couple of examples of policies that would be viewed as discriminatory and non-discrimatory.

So if you want to provide parental leave (as opposed to pregnancy-related medical leave), you have to offer it in a gender-blind way. The "primary" and "secondary" caregiver strategy may be a valid work-around, but you have to be very careful in how it's administered. Of note, JPMorgan Chase just settled a lawsuit brought by a father who was denied parental leave benefits. Their policy was written in the way your proposed policy was, but it was administered in a gendered way:

JPMorgan allowed Rotondo only two weeks of leave rather than the full 16 weeks he requested. Because Rotondo was male, JPMorgan automatically assumed he would be the non-primary caregiver.

The only way Rotondo could receive 16 weeks of paid parental leave was to prove that he was the primary caregiver. To do this, he would need to qualify through one of JPMorgan’s exceptions: (1) he could prove that his wife had returned to work before the expiration of 16 weeks or (2) he could provide documentation that his wife was medically incapable of providing any caregiving responsibilities for their child.

According to Rotondo’s charge, JPMorgan’s paid parental leave policy discriminates based on sex because it automatically assumes that mothers are primary caregivers, while fathers are non-primary caregivers.

So the question becomes: if a company has a parental leave policy like this, and an employee requests time off as a primary caregiver, what standard of proof does the company require for this benefit? To avoid such a lawsuit, a company would need to hold all employees, regardless of gender, to the same standard; they can't automatically trust the mothers and require proof from the fathers. Depending on the standard of proof required by the company, this will likely result in "legitimate" primary caregivers being denied this benefit, or "illegitimate" primary caregivers receiving this benefit. Choose your poison.

Most of what I've said above applies to parental leave. You can also offer medical leave to those employees who have been pregnant. This would definitely save your company money, since fathers would be unable to claim any paid time off under this policy. However, if this was all you offered, without any provision for parental leave, then a new father whose wife was unable to care for the infant (as in your hypotheticals) would be SOL.

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  • You are missing something on the both genders part. They are saying that if the leave for the mom is just to be with the child then the father deserves the same leave to be with the child. However, if the leave is for medical reasons, it can apply only to the mother. – Putvi Jun 7 '19 at 20:29
  • @Putvi: edited to clarify which sections deal with parental leave and which deal with medical leave. – Michael Seifert Jun 7 '19 at 20:41
  • Thank you for the thorough answer. I wish I knew what I said to deserve the downvotes. – nemo3590 Jun 8 '19 at 23:24
  • @nemo3590: It's probably because your question is asking about a specific legal situation, and you should really get some definitive advice from a professional, not from some random guy with no legal training on the internet (i.e., me.) What I've given above is just a summary of what information I could find online about this. – Michael Seifert Jun 9 '19 at 13:22
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Maternity leave is not discrimination, because it is based on a medical need, at least in some circumstances. Mandatory leave for both parents only comes into play legally when the employer is of a certain size. https://www.eeoc.gov/laws/types/pregnancy.cfm

I would assume that if you included the compromise you listed, everyone would just say that they are the primary caregiver.

There may not be one perfect solution, but hopefully you guys can all work together to include everyone.

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