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As more and more women choose to continue their careers while raising children, and the increasing costs of living require dual income households, many employers now offer paid parental leave and flexible work arrangements.  This is a move that should be celebrated by employees and employers alike.  However, in drafting parental leave policies that provide benefits beyond what is required by law, employers must remember that federal and state law prohibitions on sex discrimination  to men as well as women.

On August 30, 2017, the EEOC filed suit against Estée Lauder in the U.S. District Court for the Eastern District of Pennsylvania claiming that the cosmetic company discriminated against male employees by implementing a paid parental leave policy that provided lesser parental leave benefits to male employees than to female employees.  The paid parental leave policy at issue provided “primary caregivers” six weeks of paid parental leave for child bonding, and only offered “secondary caregivers” two weeks of paid leave.  The case arose when a male employee requested six weeks of child-bonding leave as the “primary caregiver,” however, the company denied his request and only gave him the two weeks. The EEOC brought suit claiming that the practice of allowing men only two weeks of paid leave, while allowing women six weeks, was discriminatory.

A similar suit was filed in 2017 by a male J.P. Morgan Chase employee who sought approval to take parental leave as the primary caregiver under the company’s parental leave policy.  The employee was told that mothers are considered to be primary caregivers, and that fathers can only be treated as primary caregivers (and receive 16 weeks of paid parental leave) if they can demonstrate that their spouse or partner has returned to work, or that “the mother” is medically incapable of caring for the child.  The male employee brought an action seeking changes to the company’s parental leave policy to make it equitable between mothers and fathers.

These issues are further complicated by the fact that in today’s busy dual income households, co-parenting has become the norm and mothers and fathers largely share the responsibilities and duties of the “primary caregiver.”  So, how can a company provide its employees with the benefits of parental leave, but do so in a way that is fair and equitable?   When drafting parental leave policies, employers should look to avoid common stereotypical parental roles and ensure that male and female employees are being treated consistent with the prohibition of discrimination based on sex.  Providing paid parental leave is a positive response to our evolving workforce and family structure, and carefully drafted policies serve to greatly benefit the employee-employer relationship.