By: Barry Dorans
You have a highly valued employee who has recently become pregnant and has asked about the company policy on paid maternity leave. Can you offer her paid maternity leave?
Before I answer that question, I want to address another issue. It is easy to find lawyers that will tell you that you can’t do something since that is what they learned in law school. In contrast, a more experienced lawyer will tell you that you can do something, though there may be potential negative consequences that should be considered. In this case, an employer can offer paid maternity leave, but must recognize there are potential negative consequences.
Under Title VII of the Civil Rights Act, employers cannot provide different benefits to employees based on their sex. There are two different periods of leave that could apply for pregnancy. First, for part of the period immediately prior or after the birth, the mother may be physically unable to perform work. For that period, she is entitled to the same benefits that a male employee receives for his physical disability. Accordingly, if an employer had a male employee that suffered a heart attack and that employee was given 6 weeks of paid leave, the employer must do the same for the woman to the extent the pregnancy makes her unable to work. The same would be true if the employer gave unpaid leave. Again, both the male and female employees would be entitled to the equivalent unpaid leave due to a medical condition.
In addition, after a mother is physically able to return to work, she may desire to stay home to bond with a child for a period of time. If an employer grants an employee paid leave to bond with a child, the employer may be sued if it provides different leave to fathers and mothers.
The Estee Lauder companies are now experiencing the consequences of adopting a paid parental leave program for women who give birth. Under their program, mothers who give birth are allowed six weeks to recover from child birth followed by an additional six weeks of paid parental leave for child bonding. New fathers were granted two weeks of paid leave for child bonding. The EEOC has filed suit against Estee Lauder claiming that policy discriminates against men. The EEOC has also filed suit against J.P. Morgan. J.P. Morgan’s policy granted biological mothers up to 16 weeks of paid parental leave. In contrast, men were allowed only two weeks of paid parental leave.
Thus, an employer may offer paid parental leave. If it treats men and women differently, it faces the consequences of potentially being sued for violation of Title VII. Not only does it face that prospect, it also faces the likelihood that it could lose such a suit on that grounds that it is treating men and women differently.
As a result, if a company is considering offering paid leave to care for a child, it needs to carefully consider whether it is willing to offer the same benefits to both men and women and, if not, whether it is willing to run the risk of being sued and possibly losing a case of discrimination. On the other hand, the company may want to consult with an attorney about adopting a different program that provides a benefit to its employees which is nondiscriminatory.
