“Ask Sheila” Column

Dear Sheila,

Our firm has a generous maternity leave policy for our female employees. We provide 18 weeks of paid leave. For male employees who have children, we provide two weeks of paid leave, plus an additional ten weeks of unpaid leave, to give the full 12 weeks required by the Family and Medical Leave Act. Now we have an expectant father claiming this is unfair and discriminates against him on the basis of sex. Is this a problem?

Sincerely, Mother-Friendly Workplace Proponent

Dear Mother-Friendly:

You likely have a discriminatory policy under sex discrimination law. Any part of the parental leave policy that treats women differently than men must be based on the period of disability related to pregnancy, and not be based on baby-bonding time. This means that you may give a biological mother more time off, including paid time off, for the time to give birth and recover from giving birth, for the time she can show an actual disability (unable to work for physical reasons). This time period, determined by a health-care provider, is usually four to six weeks, though it could be longer with complications. The rest of the time, often called “baby-bonding” time, should be offered to men and women on equal terms.

This principle also applies when the child is adopted. Since neither parent is giving birth, both should be treated equally under your policies.

Finally, you should change the terminology in your policy to account for same-sex parents, now equally protected by gender discrimination law. Instead of using “father” and “mother”, use more gender-neutral terms, such as “employees who give birth” and “employees who become parents but don’t give birth.” Don’t have “maternity” or “paternity” leave policies, but rather a “parental leave” policy.

“Ask Sheila” is prepared by Sheila Gladstone, Chair of the Firm’s Employment Law Practice Group. If you would like additional information or have questions related to this article or other employment matters, please contact Sheila at 512.322.5863 or sgladstone@lglawfirm.com.