Don’t let this happen to you – Lessons from the Estée Lauder parental leave settlement
In the competition for talent, companies continue to offer increased benefits to employees. Among the most popular of these benefits is parental leave. In light of a recent position taken by the Equal Employment Opportunity Commission (EEOC), however, employers should review their parental leave policies to avoid unwanted scrutiny from that agency.
In 2017, the EEOC filed a lawsuit against Estée Lauder, claiming the company’s parental leave policy was discriminatory. In particular, the EEOC alleged that the company’s policy of providing “primary caregivers” with six weeks of paid parental leave for child-bonding (in addition to leave for recovery from childbirth) and flexible return-to-work benefits while providing “secondary caregivers,” with only two weeks of paid leave for child-bonding with no flexible return-to-work benefits discriminated on the basis of gender. The EEOC argued that, although the policy was gender-neutral on its face, in practice, the company was discriminating against male employees because they were eligible to receive only “secondary caregiver” leave benefits and were not eligible for any flexible return-to-work benefits.
In 2018, the EEOC settled the case with Estée Lauder for $1.1 million and the company’s agreement to change its parental leave policy, demonstrating that this is and will continue to be a hot-button issue for employers. The EEOC has made clear that, in implementing parental leave policies, employers should carefully distinguish between leave related to any physical limitations imposed by pregnancy or childbirth – which can be limited to women affected by these conditions – and leave for purposes of child bonding – which must be provided to similarly situated men and women on the same terms.
In other words, employers that provide paid parental leave to female employees for child-bonding (as compared to leave provided as a result of pregnancy-related physical or medical conditions) must provide the exact same child-bonding leave to male employees. While some employers attempt to distinguish between primary and secondary caregiver leave in an attempt to promote gender neutrality, as Estée Lauder found out, that will not be a sufficient solution to this problem.
In its Enforcement Guidance on Pregnancy Discrimination and Related Issues, the EEOC offers the following as an example of an acceptable, gender-neutral parental leave policy: “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, whether male or female, six weeks of parental leave.”
Employers should consult with experienced human resources professionals and/or labor and employment counsel with any questions regarding parental leave policies or practices. For MEA members, the Hotline and a Member Legal Services attorney are available to provide this assistance.
About the Author
Amy McAndrew is MEA’s Director of Member Legal Services and has over twenty years of experience as a labor and employment attorney.