In May, JPMorgan Chase entered into a class action settlement regarding allegations that it treated male employees differently than female employees under the company’s parental leave program. On its face, the terms of the program appeared to be gender-neutral: 16 weeks of paid leave for “primary caregivers” and two weeks of paid leave for “secondary caregivers.” It is important to note that this is PAID leave—not unpaid leave as contemplated under the FMLA and not interfering with FMLA rights.
What’s Wrong with Paid Leave?
The plaintiff class alleged the problem was how the program was actually applied. Derek Rotondo requested 16 weeks of parental leave after the birth of his child. However, the HR office said he could only receive that length of paid leave if he could show that the mother had to return to work before the 16 weeks elapsed or that the mother was “medically incapable” of taking care of the child. Because Mr. Rotondo couldn’t show either circumstance, he was classified as a “secondary caregiver” and was given two weeks of paid leave.
As it turns out, JPMorgan Chase applied the policy differently when a female employee applied for the paid leave. With a female, HR automatically presumed that the mother was the “primary caregiver” and did not demand proof like they had requested from Mr. Rotondo. Mr. Rotondo filed an EEOC charge based on gender discrimination, and the ACLU eventually filed suit. The case was settled as a class action. The policy was changed, and male employees who were denied 16 weeks of paid leave would be compensated from a fund created by the $5 million settlement.
What’s an Employer to Do?
As noted above, the FMLA only requires that you provide 12 weeks of unpaid leave for an individual that specifically requests it for the birth of a child. That covers both moms and dads (and even parents who are adopting or fostering a child). Employers do not have to provide paid leave. But if you do, you need to make sure that you treat parents equally, regardless of sex. Do not automatically assume that the mother will be the primary caregiver (or you could risk litigation).