By: Miriam L. Rosen
In its July 2014 Enforcement Guidance on Pregnancy Discrimination and Related Issues, the EEOC made clear that while leave related to pregnancy, childbirth, or related medical conditions can be limited to women affected by those conditions, parental leave must be provided on an equal basis to men and women.
The EEOC showed that its guidance has real teeth when it filed a lawsuit in August 2017 against cosmetic giant, Estee Lauder, alleging that the company’s parental leave policy provided new fathers with less paid time off than new mothers received. The lawsuit also alleged that the policy denied new fathers the same return-to-work benefits that new mothers received, including modified work schedules.
Under a consent decree filed on July 12, 2018, the EEOC and Estee Lauder agreed to resolve the lawsuit by providing a $1.1 million settlement for the over 200 new fathers allegedly denied the same leave rights as new mothers. In the settlement, Estee Laude denies any violation of the law.
In addition to the financial settlement, Estee Lauder also amended its paid parental leave policy to provide that all new parents can take up to 20 weeks of paid leave to bond with a newborn and six weeks of flexible work arrangements after they return to work following the birth of a child. Under the revised policy, leave for child bonding time is separate from any short-term disability leave that is available to mothers for pregnancy-related medical conditions, childbirth, or child-birth related medical conditions.
In light of the EEOC’s lawsuit against Estee Lauder, employers may want a refresher on some of the other aspects of the agency’s 2014 enforcement guidance. According to that guidance:
- Discrimination claims under the Pregnancy Discrimination Act can be based not only on current pregnancies, but also on past pregnancies, an employee’s potential or intention to become pregnant in the future, infertility treatments, the use of contraception, abortion, and lactation.
- Absent proof of a bona fide occupational qualification, employees cannot be compelled to take leave simply because they are pregnant.
- A broad range of pregnancy-related conditions, such as limitations related to walking, carpel tunnel syndrome, sciatica, mandatory bed rest, depression, and nausea, may be considered disabilities under the Americans with Disabilities Act.
Of course, a key takeaway for employers considering how to structure a parental leave policy is the distinction between leave for bonding time – which under the EEOC’s guidance must be made available on an equal basis for fathers and mothers – and leave related to medical conditions associated with pregnancy which is available to new mothers. Employers should consult with employment counsel to assist in developing legally compliant parental leave policies.
This article was written by Miriam L. Rosen, who is Chair of the Legal Affairs Committee of Detroit SHRM and Chair of the Labor and Employment Law Practice Group in the Bloomfield Hills office of McDonald Hopkins PLC, a full service law firm. She can be reached at firstname.lastname@example.org or at (248) 220-1342.
Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. July 2018.