Does your parental leave or "bonding time" policy provide more time off to one gender over the other following the birth or adoption of a child? If so, it is time to revisit the policy as the Equal Employment Opportunity Commission ("EEOC")--the federal agency tasked with enforcing workplace anti-discrimination laws--is actively pursuing policies that are not gender-neutral but instead provides more parental leave to women compared to men.

Many companies offer "two-tiered" types of leave policies, where the birth mother is entitled to more "bonding time" or parental leave than the father. Other policies sometimes distinguish between a "primary" and "secondary" caregiver. The effect of these policies is the same, ultimately providing more leave to women over men following the birth or adoption of a child.

According to the EEOC, these policies are discriminatory, which can result in costly litigation or settlements. In May 2019, the EEOC obtained a $5 million settlement from JPMorgan Chase, where the EEOC alleged that their parental leave policy discriminated against men by providing them with less parental leave than it did to women. That settlement followed another large EEOC settlement of $1.1 million with Estée Lauder in July 2018, under similar allegations.

Many employers offer parental leave as a specific employee benefit, either as a recruiting incentive or to comply with local or federal laws. For employers that do offer this type of benefit, they must be mindful of the EEOC's position that these policies must be applied uniformly across genders.

In June 2015, the EEOC released Guidance on this subject, alluding to where it would take its enforcement action in the years to come. Employers should be aware, however, that just because the EEOC takes the position that these types of policies are discriminatory does not mean that a court of law would come to that same conclusion. EEOC guidance is not binding law, but is instead persuasive authority that courts can consider in resolving lawsuits. The Guidance unequivocally states that parental leave policies must treat male and female employees the same.

Specifically, the EEOC wrote:

Employers should carefully distinguish between leave related to any physical limitations imposed by pregnancy or childbirth (described in this document as pregnancy-related medical leave) and leave for purposes of bonding with a child and/or providing care for a child (described in this document as parental leave). 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 important distinction the EEOC draws is between (1) pregnancy-related leave and (2) parental leave. If additional leave is given to birth mothers beyond the period of recovery from the child birth, (which is a disability), then an equal amount of that leave time must be given to all new parents, whether male or female. The reasoning is that if the leave is not related to the mother's physical recovery from childbirth, which is technically considered a temporary disability under federal law, then it must be an equal benefit to all parents under federal gender anti-discrimination laws.

In light of these recent EEOC settlements, companies are advised to review parental leave policies. Parental leave policies should:

• Provide an equal amount of parental leave time to all new parents;
• Clearly distinguish between pregnancy-related disability leave for birth mothers and general parental leave available to all new parents;
• Avoid gender-based terms in parental leave policies like "primary" or "secondary" caregiver or "mothers" and "fathers";
• Train management on the company's leave policy terms; and  
• Promote a workplace culture that encourages all new parents (whether male or female) to take advantage of the company's parental leave policies.