The Perils Hotels Face of Parental Leave Policies
By Christine Samsel Attorney, Brownstein Hyatt Farber Schreck | March 01, 2020
Historically, employers offered several weeks of paid maternity leave to new mothers, while offering only a fraction of that amount-if any at all-to new fathers. In an effort to provide enticing benefit packages to workers and increase employee retention, many employers are enhancing parental leave benefits, including providing extended periods of paid leave and related benefits. Indeed, nearly 40% of employers currently offer some type of paid parental leave benefit.
However, such policies are being scrutinized by the Equal Employment Opportunity Commission (EEOC) and the American Civil Liberties Union (ACLU). They also are coming under attack by plaintiffs' attorneys, as demonstrated by a recent spate of lawsuits and sizable settlements-including a $5 million settlement in a class action against a large financial services institution, and a $1.1 million settlement in a class action brought by the EEOC against a cosmetic company.
In connection with one such action, the EEOC commented that addressing sex-based pay discrimination, including discrimination in benefits such as paid leave, is a "priority issue." Employers in a wide range of industries, including law firms, are being targeted.
In some cases, the parental leave policies are alleged to be discriminatory on their face. In others, employers are accused of discriminatory practices in implementing what appear to be facially gender-neutral policies. Although the underlying motive for implementing paid parental leave policies may be commendable, a poorly drafted or improperly implemented policy can result in significant exposure.
Potentially Discriminatory Policies and Practices
While employers may have the best intentions in offering parental-related benefits, if greater benefits are offered to female employees, such policies may violate Title VII of the Civil Rights Act of 1964, as well as state and local antidiscrimination laws. This applies to parental leave, whether paid or unpaid, and whether statutorily required or not. It also applies to related benefits, such as flexible time off, reduced work schedules or modified job duties post-leave. These issues implicate the actual policies, as well as employers' practices in implementing those policies.