Attorney Harrison Oldham
Earlier this year, one of the oldest and largest financial institutions in the United States agreed to pay $5 million to resolve a discrimination claim filed by a male employee who alleged the bank’s parental leave policy was biased against dads.
The settlement resolved a 2017 complaint brought by the American Civil Liberties Union alleging bias against the employee who had applied unsuccessfully for the 16-week parental leave benefit available to employees who are the “primary caregiver” of a new kid. This payout is the largest settlement to date, but it is not the first.
In 2015, the Equal Employment Opportunity Commission (EEOC) issued Enforcement Guidance for Pregnancy Discrimination and Related Issues, which includes parental leave policies. However, not all employers have followed this guidance. Consequently, in 2017, the EEOC commenced a landmark lawsuit against a leading cosmetics company targeting a parental leave policy that purportedly gave greater benefits to new mothers than to new fathers.
There, the case arose after the company offered only two weeks of child-bonding leave to a new father after rejecting his request for the six weeks of child-bonding leave it offered to new mothers. The lawsuit became a class action – seeking relief for other male employees who were denied equal parental leave benefits because of their sex. The EEOC sought back pay, compensatory damages, punitive damages and injunctive relief.
The EEOC and the company settled the lawsuit for a $1.1 million payment to a class of over 200 male employees and entered into a consent decree that required the company to stop treating fathers in a discriminatory manner. Now, the company offers 6 to 8 weeks of leave following child birth for moms to recover, and an impressive 20 weeks of paid leave to both moms and dads for bonding.
After seeing some success, in 2018 the EEOC brought another suit against the financial institution mentioned above. There, the lawsuit alleged that the bank discriminated against fathers based on gender stereotypes by giving mothers more parental leave.
The plaintiff in the lawsuit, a male employee, requested 16 weeks of parental leave based on the bank’s parental leave policy, which provides 16 weeks of leave to “primary caregivers” and two weeks of leave to “non-primary caregivers.” The plaintiff alleged that the bank informed him that per the bank’s policy, he could only take primary caregiver leave if he could prove that his spouse or partner was back at work or “medically incapable” of caring for the child. However, because his wife, a teacher, was off for the summer and not medically incapable of caring for their child, his request was denied, and he was eligible to take only two weeks of non-primary caregiver leave.
The plaintiff alleged that, in denying his request for primary caregiver leave, the bank improperly presumed that men cannot be primary caregivers based on gender stereotypes. The bank however maintained that its policy was always gender-neutral.
Under Title VII of the Civil Rights Act of 1964, it is illegal to treat men and women differently based on gender stereotypes. The EEOC guidance clarifies that while employers can treat men and women differently due to physical limitations on women imposed by pregnancy or childbirth, they cannot treat men and women differently with respect to child-bonding leave.
As a result of the settlement, the bank has revised the policy to make clear that both mothers and fathers can be eligible for primary caregiver leave. The bank has also agreed to train its human resources representatives regarding applying the policy fairly to men and women.
There are a couple of key takeaways for employers from these cases. First, employers can treat men and women differently for purposes of parental leave for recovery from childbirth on the rationale that women who give birth need time to recover physically. However, employers cannot treat men and women differently with respect to child-bonding leave. The EEOC explains in its June 2015 pregnancy discrimination guidance that
for purposes of determining Title VII’s requirements, employers 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 means that employers that provide paid parental leave to female employees for child-bonding must provide the exact same child-bonding leave to male employees. Second, many employers distinguish between primary and secondary caregiver leave in their parental leave policies. However, there are serious risks to using these terms in a parental leave policy when these terms are not properly defined or when they result in differential treatment of male and female employees with respect to child-bonding leave.
About Harrison Oldham
Harrison grew up in Mansfield, Texas. He attended Texas A&M University for his bachelor’s degree, where he met his wonderful wife, Kelsey. After graduating magna cum laude from Texas A&M, he attended SMU Dedman School of Law, graduating with honors in 2012. Today, Harrison and his wife live in Dallas, Texas with their son, Teddy.
Since graduating from SMU Law, Harrison has worked exclusively in the field of business law. He has spent time in private practice and in-house, working with clients of every size; from single person startups to Fortune 250 companies. Today his practice focuses on serving the diverse needs of businesses and individuals throughout Texas. You can learn more about Harrison by visiting his website, at: http://