By Kevin Fritz
A recent charge of discrimination against a large media company brings gender stereotyping front and center. A large entertainment corporation had a paid time off policy for new parents that provided 10 weeks paid leave for biological mothers, but only two weeks for biological fathers. One male employee — and recent father– claimed that the policy was discriminatory and presented an issue of gender bias. But was the recent dad really getting shorted? Do similar paternity leave policies discriminate against males on the basis of their gender?
Of course, there is no clear answer. And while an overwhelming majority of sex bias claims are still filed by women, the anticipated influx of same-sex parents, especially in light of the Supreme Court’s 2013 decision striking down the Defense of Marriage Act, underscores that this is an increasingly important issue facing employers.
Under Title VII of the Civil Rights Act of 1964, employers are allowed to provide women with leave specifically for the period of incapacity due to pregnancy, childbirth, and any related medical conditions. Employers may not however treat females more favorably than males with respect to leave for childcare purposes. According to the Equal Employment Opportunity Commission, employers who grant greater leave to new mothers than to fathers and do not provide some kind of a connection to the fact that the leave is pregnancy-related, could be liable for sex-based discrimination.
Under the Family Medical Leave Act (“FMLA”), the majority of employers are still required by federal law to allow their employees (male or female) 12 weeks of unpaid family leave after the birth or adoption of a child. As such, any alleged gender bias does not normally prevent a biological father from taking time off for diaper duty. Rather, the real risk of discrimination comes into play when an employer allows females more paid time off than males following the birth of a child.
But even the FMLA may be undergoing changes down the line. Lawmakers recently introduced legislation that would create a national, paid family and medical insurance leave program. The Family and Medical Insurance Leave Act, introduced by Democratic lawmakers, establishes a paid leave program funded through employee and employer contributions. The proposed legislation would not only provide for benefits equal to 66% of an employee’s monthly wages during the absence, but would also cover more workers than the FMLA. Unlike the size and duration requirements of the FMLA, this new legislation would provide for paid leave to every individual regardless of the size of his or her employer, and regardless of the amount of time previously worked.
On the one hand, the passage of this kind of legislation could create major financial burdens on employers. But on the other, it could be a blessing in disguise and may shield employers from these types of gender bias claims.
In order to stay ahead of the curve, employers should be prepared for new trends in sex discrimination claims. While some men may prefer long hours at work over burping babies, trends suggest that more fathers are requesting time off following the birth of a child.
To avoid potential liability, employers considering something beyond the typical unpaid leave under the FMLA should consider developing policies that establish a single standard for parental leave and apply it equally to both men and women. This policy can have a separate provision that applies solely to pregnancy and any disability flowing from it. This caveat policy should be limited only to the period that women are “incapacitated” by pregnancy and childbirth.
Policy aside, the answer to these types of gender based discrimination issues may be primarily one of workplace culture. But to avoid any hiccups or bad burps, it is best to keep gender out of it.
For more information on this or any other employment law related matter, please contact the author or your Seyfarth attorney.