Does your parental leave policy discriminate?

parental leaveParental leave isn’t as simple as it used to be. In several recent lawsuits, courts have ruled that parental leave policies employers thought generously provided time off for new mothers were actually discriminatory—against new fathers.

In one case, a male news correspondent whose daughter was born five weeks prematurely sought the same amount of paid leave new mothers at his bureau receive. When the man’s employer stood by its policy of providing 10 weeks of paid leave for new mothers and adoptive parents, but only two weeks for biological fathers, the newsman filed a complaint with the EEOC.

The two sides settled the dispute for an undisclosed amount and the employer is changing its policy.

Courts have not offered bright-line guidance to employers, but most decisions on the matter state that any disparity between leave granted to new mothers and new fathers must be tied to the mother’s recovery period. Generally, courts have recognized that women require six weeks to recover from a typical pregnancy.

Workplace culture plays a part in new fathers’ experiences and expectations for parental leave.

Millennial workers, leading the charge for more equal policies, often encounter pushback from their older male co-workers. Some men have claimed taking parental leave affected their careers, a complaint often lodged by women.

The FMLA provides up to 12 weeks of unpaid leave for new parents regardless of gender. Some state laws require additional benefits. No federal law requires paid parental leave.

A recent Society for Human Resource Management survey found only 21% of companies provide paid maternity leave. But that’s more than the 17% offering paid paternity leave. Some employers now offer equal amounts of paid leave regardless of gender.

Advice: If your parental leave policies differentiate between moms and dads, consult your attorney to ensure that the disparity is justified and legally defensible.