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Dear David: Is having different parental leave programs for women and and other employees discriminatory?

Question: Is having different parental leave programs for women and other employees discriminatory?

Answer:

Yes. Parental leave must be provided to similarly situated employees on the same terms. For example, if an employer extends leave to new mothers beyond the period of disability from childbirth (for instance, to provide the mothers time to bond with and/or care for the baby), the employer cannot lawfully fail to provide an equivalent amount of leave to other new parents for the same purpose.

According to Title VII of the Civil Rights Act of 1964, an employer may not discriminate against an employee on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions must be treated the same as other persons not so affected but similar in their ability or inability to work. It is important to note that for purposes of determining these Title VII 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 (parental leave). Leave related to pregnancy, childbirth, or related medical conditions can be limited to women affected by those conditions.

The Equal Employment Opportunity Commission (EEOC) provides the following examples of nondiscriminatory versus discriminatory leave policies.

An employer offers pregnant employees up to 10 weeks of paid pregnancy-related medical leave for pregnancy and childbirth as part of its short-term disability insurance. The employer also offers new parents six weeks of parental leave. A male employee alleges that this policy is discriminatory as it gives up to 16 weeks of leave to women and only six weeks of leave to other employees. In this example, the employer’s policy does not violate Title VII. Alternatively, “All employees (who meet certain eligibility requirements) receive six weeks of parental leave, and women who give birth receive up to an additional 10 weeks of leave for recovery from pregnancy and childbirth under the short-term disability plan.

In addition to providing medical leave for women with pregnancy-related conditions and for new mothers to recover from childbirth, an employer provides six additional months of paid leave for new mothers to bond with and care for their new babies. The employer does not provide any paid parental leave for other employees. In this example, the employer’s policy violates Title VII because it does not provide paid parental leave on equal terms to all employees.

New development for folks in SF in particular: https://sfgov.org/olse/paid-parental-leave-ordinance.


David Katz

Vice President
VMA Insurance Services
To send your questions, write to david@vma.bz

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