It’s All In a Name: Is Your Parental Leave Policy Inclusive?
By Jessica Hawley, CLMS
Manager, Accommodations & Leaves
RBC (Royal Bank of Canada, U.S. Operations)
Implementing a new leave plan or policy can be difficult and complex, especially with parental/bonding leaves in which overlapping legal and cultural issues may generate powerful emotions.
The main factors to consider when implementing a parental leave plan are:
- Your company’s employee population (size, age, gender composition)
- The duration of the leave
- Current legislation
- The name of the plan
- Your company’s values and culture
At RBC Capital Markets (RBC), we have two main U.S. business segments with two different employee populations, business personalities, and market competition. One of the businesses has many locations across the country with very few employees at each site, which makes it challenging to offer longer paid leaves. The other business prioritizes maintaining a competitive edge with other companies in the industry. Since our two main divisions are different in their populations and needs, we needed two separate parental leave plans. Both businesses offer 100% paid leave for new parents; however, the duration of the leaves differs for the two businesses.
Composition of your employee population is an important consideration if you are hoping to recruit and retain top talent of both Millennials and women. Equality and generous leave policies are important to most employees but especially to Millennials. Studies show that Millennials want their workplace to be aligned with their values. Also, recent generations consist largely of two-career couples, and many expect both parents to work and parent equally.
Another consideration is the type of industry and the number of employees at each location. Perhaps the type of your business or your small employee population will make it hard to offer a longer duration of parental leave.
Whether you choose 2, 6, 12, or 20 weeks of paid leave, it is important that each parent is offered an equal amount of bonding time, as required under Title VII of the Civil Rights Act. Your company can offer a period of paid time for pregnancy-related medical leave for pregnancy and childbirth as part of the disability leave, but each parent, regardless of gender, should be offered an equal amount of bonding time. It would violate Title VII if an employer provided more bonding time to the birth mother than the nonbirth parent.
Title VII prohibits employers from discriminating against employees on the basis of sex, race, color, national origin, and religion; it is enforced by the Equal Employment Opportunity Commission (EEOC). To ensure that pregnancy and birth-related leaves comply with Title VII, an employer should differentiate leaves related to pregnancy disability from those related to bonding time with a new family member. For example, an employer should have a disability-related pregnancy leave and a separate bonding leave that allows equal time for the birth mother and nonbirth parent, male or female.
The final factor to consider when implementing a parental leave policy is often overlooked: what to name the policy. In my over 10 -year career in leave management, I have seen many policy names for bonding leave purposes. The wrong name can reinforce stereotypes and negate the goodwill an employer seeks to create by providing paid leave. By using terms such as “paternity leave” or “primary and secondary leaves”, employers expose themselves to public relations issues and/or legal liability.
Paternity refers only to a male father of a child, which excludes same-sex female relationships. Primary- and secondary-caregiver leaves typically only offer the primary caregiver leave to the birth mother, offering the nonbirth parent (secondary caregiver) a shorter duration of leave. Using the terms primary and secondary caregiver in your policy assumes that families will have one primary caregiver who is supported by a partner with fewer caretaking responsibilities.
It also requires employers to ask employees about caregiving loads. Not only can this be invasive and administratively burdensome, but this parental leave model is usually not gender-neutral. This model enforces old stereotypes that raising children is a women’s responsibility and men are secondary caregivers. It also indicates an assumed role of the birth mother having to do most of the initial parenting work. The homemaker/breadwinner family structure is antiquated. All parents, regardless of gender or family role, should be provided equal paid leave to bond with their children.
Litigation Trends
There has been an increase in EEOC sex discrimination cases against companies whose parental leaves don’t offer the same bonding time benefits to the birth mother and nonbirth parent.
In 2015, a discrimination charge was settled against CNN and Turner Broadcasting for providing 10 weeks of paid leave to mothers but only two weeks to the other parent. In 2017, JP Morgan Chase was charged with sex discrimination because of a policy that provided “primary caregivers” 16 weeks of paid leave and “non-primary caregivers” only two weeks of paid leave. JP Morgan Chase did not allow fathers or nonbirth parents to utilize the primary caregiver leave unless they could prove that their spouse or domestic partner had returned to work or was medically incapable of caring for the child.
In August 2017, the EEOC sued Estee Lauder for sex discrimination. The charge claims that Estee Lauder violated federal law when it implemented and administered a paid parental leave program that automatically provides less parental leave to new fathers than to new mothers. The suit also claims that Estee Lauder provided flexible return-to-work opportunities to new mothers that were not offered to new fathers.
With many corporate benefit programs are still using terms such as paternity and primary and secondary caregivers, we may see more sex discrimination charges against employers that do not treat all parents equally. Employers should also avoid terms such as mothers and fathers in their policies. Keep in mind that not all families consist of a mother and a father.
Does the future hold a state or federally funded parental leave similar to paid parental leaves offered in other countries? The Trump administration has discussed a six-week paid parental leave, but this underwhelming proposal was inadequate from the start. The original proposal excluded fathers, adoptive parents, and all parents who didn’t physically give birth. This was widely criticized by parents and policymakers for its ignorance of the realities of the modern American family structure. Trump’s proposal now includes all parents, but its budget and structure present severe challenges, as each state would be required to implement its own paid leave program.
Conclusion
Using the terms birth mother and nonbirth parent makes corporate policy much more inclusive and would cover every family situation — as long as the birth mother and nonbirth parent are offered an equal amount of paid time to bond with their newborn baby or adopted child.