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How Employers Can Avoid Discrimination Lawsuits When Offering Parental Leave How Employers Can Avoid Discrimination Lawsuits When Offering Parental Leave

How Employers Can Avoid Discrimination Lawsuits When Offering Parental Leave

To stay competitive in the hiring market and to improve employee satisfaction, employers may consider adding parental leave as an employment benefit. In implementing a parental leave policy, employers must ensure the policy is well-written, gender neutral, and applied impartially to avoid discrimination lawsuits. 

A parental leave policy must comply with Title VII, which prohibits employment discrimination based on race, color, religion, sex, and national origin. In complying with Title VII, employers can offer women additional leave, as long as the policy clearly states that leave is related to physical limitations from pregnancy, childbirth, or a related medical condition. Employers are not required to offer the same pregnancy-related medical leave to men. However, any other type of leave related to bonding with or caring for the child must be offered equally to both men and women. 

In the past few years, large corporations have settled lawsuits related to discriminatory parental leave policies. These lawsuits can offer lessons to employers for avoiding liability. Employers should consider the following: 
  • Use gender-neutral language in the policy. 
  • Ensure language in the policy clarifies the nature of the leave as pregnancy-related medical leave or bonding general care leave.
  • Avoid language that, while gender neutral on its face, may have gender-based implications.
    • If the policy differentiates based on primary and secondary caregivers, do not presumptively treat mothers as the primary caregiver or only require fathers to provide proof that the other spouse has returned to work or is medically incapable of caring for the child before being designated as the primary caregiver. 
  • Train employees on the administration of gender-neutral policies. 
    • Even if a policy is general-neutral on its face, personnel charged with implementing the plan must do so in a non-discriminatory way. This is especially important if a policy grants more leave to a “primary caregiver” than a “secondary caregiver.” 
  • Do not discourage employees of a certain gender from taking advantage of the leave policies. 
  • Monitor implementation of the policy. 
  • Ensure that you administer and implement other policies that relate to the leave in a manner that is gender neutral. For example, if you offer additional return-to-work benefits, like temporary modified work schedules or job sharing, these policies must also be non-discriminatory. 
  • In formulating a leave policy, employers also need to ensure compliance with state and federal laws. 
    • The Family and Medical Leave Act applies to companies with more than 50 employees, granting employees up to 12 weeks of unpaid, job-protected leave per year for birth and care of the newborn child. Several states extend mandatory leave up to 16 weeks. California, Colorado, Delaware, Massachusetts, Maryland, New Jersey, New York, Oregon, Rhode Island, and Washington implemented state programs that mandate certain employees have access to paid leave to care for a newborn or adopted child. Because several of the paid family and medical leave state laws are new, employers in those states may need to alter existing policies. 
  • Consult legal counsel to draft, revise, or review parental leave policies.
Parental leave can be a great benefit to offer employees. Whether you already have a policy in place or are thinking about adding one, following these tips will help prevent good intentions from having inadvertent consequences. 

For additional information on this topic, contact Hannah Oates or any member of Ice Miller’s Workplace Solutions Group.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.
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