EEOC targets employers for gender disparities in parental leave policies

Posted by Charles Middleton on 09/21/2017

Q: Recently, the Equal Employment Opportunity Commission filed a lawsuit against a national company alleging gender discrimination in the company's parental leave program. What's the basis of that lawsuit?

A: On Aug. 30, the EEOC filed suit against cosmetics company Estee Lauder in the U.S. District Court for the Eastern District of Pennsylvania, alleging that the company's parental leave policy unlawfully discriminates on the basis of sex. The EEOC's chief complaint is that new fathers employed by the company aren't provided the same parental leave benefits as new mothers. About four years ago, Estee Lauder began providing four paid parental leave benefits — maternity leave, adoption leave, primary caregiver leave and secondary caregiver leave, along with a transition/return-to-work program. Employees are provided six weeks of paid leave under the maternity leave, adoption leave and primary caregiver leave policies. Employees taking leave under these policies are also eligible for a transition-back-to-work program, which provides for an additional four weeks of more flexible scheduling, which potentially includes working from home or shortened workweeks. Employees who qualify for secondary caregiver leave are only entitled to two weeks of paid leave and aren't eligible for the transition-back-to-work program at the conclusion of that leave. The EEOC alleges that Estee Lauder's male employees were only eligible for the two-week paid secondary caregiver leave, while its female employees were eligible for the six-week paid maternity leave (or six weeks of paid adoption or primary caregiver leave for adoptions or surrogate births, respectively), plus the additional four-week return-to-work benefit. The lawsuit alleges Estee Lauder's policy results in male employees being paid inferior, “lesser benefits” than their similarly situated female colleagues, resulting in nationwide sex discrimination, in violation of the Civil Rights Act and Equal Pay Act.

Q: What is the EEOC's history regarding parental leave policies?

A: In 2015, the EEOC issued an Enforcement Guidance on parental leave discrimination. The EEOC noted that in order to comply with federal law, a company should “carefully distinguish between leave related to any physical limitations imposed by pregnancy or childbirth and leave for purposes of bonding with a child and/or providing care for a child.” This guidance isn't law — but courts around the country generally rely upon this guidance in interpreting the law.

Q: What does the EEOC's guidance and the Estee Lauder lawsuit mean for employers?

A: Given the EEOC's clear intent to enforce its previously issued Enforcement Guidance, a company should ensure that eligibility for any leave policies related to pregnancy, childbirth or related medical conditions should be limited to only women affected by those conditions. Any leave not specifically associated with pregnancy or childbirth should be designated as parental leave — and be offered to both men and women on equal terms.

PAULA BURKES, BUSINESS WRITER

Published The Oklahoman, September 21, 2017