Good Intentions May Not Be Enough: The Hidden Dangers of “Maternity Leave” Policies

Many employers go above and beyond any legal requirements in providing paid or unpaid leave benefits to employees to bond with their child.  So what could be bad about that?  Well, check your employee handbook. Do you have a maternity leave policy?  Do you have a paid leave policy that provides greater benefits to moms than dads, or to primary caregivers over secondary caregivers?  If so, beware.

The EEOC takes the position that “parental leave must be provided to similarly situated men and women on the same terms.”  See EEOC June 2015 Enforcement Guidance on Pregnancy Discrimination and Related Issues.  That means that new mothers and new fathers are entitled to the same amount of leave to bond with their child.

Now the EEOC is aggressively pursuing employers whose parental leave policies appear to provide differential benefits to one group over another.  Indeed, the EEOC recently scored a $1.1 million dollar settlement as part of a consent decree against a company who allegedly failed to provide the same level of bonding benefits for moms and dads.

What should employers do to stay out of trouble?

  1. As a starting point, make sure you are complying with applicable federal, state and local leave laws that provide bonding leave benefits, including the Family and Medical Leave Act (FMLA), and any state and local paid and unpaid leave laws.
  2. Next, if you choose to provide greater bonding leave benefits than the law requires, review who is eligible to receive them. Don’t restrict these benefits to just moms or just dads.
  3. You also should ensure your policy is not inadvertently using gender stereotypes to define who is eligible for bonding leave benefits, or the level of available benefits. For example, if you use the term “primary caregivers,” what does that mean?  Does it presume the woman is the primary caregiver?  Does it presume that parents can’t equally share caregiving responsibilities?  Remember benefits must be provided on a gender-neutral basis.
  4. Educate the people who will be implementing your bonding leave policies. It is essential that they understand the law and do not allow explicit or implicit bias to cloud policy interpretations.
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HR Headaches is a blog for Human Resources professionals, business owners, and in-house counsel to get the latest news, analysis and tips in the area of labor and employment law. Every day there are new court decisions, agency interpretations, and regulations which affect the workplace, making it difficult, if not impossible, for many employers to keep current. HR Headaches is dedicated to providing information in a practical, no-nonsense manner to help employers avoid legal disputes and keep policies up to date.
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