Labor / Employment, On The Job

Does Your Parental Leave Policy Engage In Sex Discrimination?

Anyone can be discriminated against -- and the EEOC knows it.

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My favorite Supreme Court justice of all time is Thurgood Marshall. Because I’m a fan of Thurgood, and an employment attorney, I know that everyone is in a protected class. There are groups that have been historically regularly discriminated against (women, disabled people) and groups that have not (men, people with spouses of the opposite sex). But discrimination is discrimination. Even if it happens to a group or class that rarely experiences it.

Which brings me to this recent story: the EEOC is suing Estée Lauder for sex discrimination related to their parental leave program.  Estée Lauder is being unfair to male employees. This is a lawsuit that is perfect for our current administration, but it doesn’t mean it isn’t right.

Policies Must Be Neutral

I recently talked to a friend who is in-house counsel about how leave programs can have unintended consequences, because you must treat all classes of employees the same on such programs. The birth of a child can be a particularly thorny issue, because it is a serious health issue for the mother. But by law partners are entitled to bonding time. You also get this time even if you don’t physically give birth. Because having a child is a life-changing event, whether you nearly die to accomplish it or not.

But people don’t seem to understand this. When I was pregnant, I absolutely had people at work tell me I was going on vacation. And that careless statement from both childless women and men with children was one of the milder things that happened to me. If you are a childless adult, please don’t say anything stupid to your expecting co-workers, male or female.  But if you are in a situation to impact policy, treat your male and female employees the same.

What Did Estée Lauder Do Wrong?

Estée Lauder gave its male employees fewer benefits and less leave than its female employees. Estée Lauder treated similarly situated employees differently because of gender.  This is pretty much discrimination 101 level behavior.

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The EEOC reports that in its 2013 parental leave policy, Estée Lauder gave fathers two weeks of paid leave for child bonding, and women got an additional 6 weeks (in addition to other leave available) for bonding.

Leave programs are the new way that companies distinguish themselves from the pack. Even law firms. So it isn’t hard to guess why Estée Lauder came up with this leave plan. Estée Lauder also has a great deal of female employees, including in its executive and senior management roles. However, sadly and perhaps typically, only three of twelve people on the executive team are women.  And they aren’t at the top.

What Should Employers Consider When Developing A Leave Plan?

The United States lags behind other developed nations as to leave available to anyone at work, including expecting mothers and fathers. Literally, any injury or illness not caused by work can cause job loss for nearly half of American workers today.

For employers like Estée Lauder, these leave policies fill an important gap. But there is a right and a wrong way to do this. What’s the right way?

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  1. Create a policy that meets the goals of the company and makes sense in terms of retention. When putting together policies, I always ask an employer to think of their ideal employee. From this employee, an employer can get a good idea of what policies that employee would need to be successful at work. All employees, including male employees who may not physically give birth, need (and may be entitled to unpaid) leave for significant life events, from pregnancy to serious illness. Employees value benefits outside of pay, so this is a great way to increase the attractiveness of an employer.
  2. When creating a policy, seek out diverse opinions regarding the policy to be aware of any pitfalls and to ensure it reaches its goals. I’m sure Estée Lauder thought that their policy was both good and fair. It appears to offer 14 weeks to male parents and 18 weeks to female parents, which is more than is legally required under federal and state law. However, it clearly was not a good policy: the company is being sued by the EEOC. There are many many ways that a leave policy can end up going wrong, ways you may not even think of. A great way to avoid this is to have diverse opinions at the table when the policy is being drafted. I can’t help but think that if Estée Lauder had more diversity around the executive table, some of this could have been avoided.
  3. Be willing to change and adapt. Right now, it looks like the U.S. will never catch up to the developing world with leave policies, and we will all feel lucky if we have 12 unpaid weeks to recover from giving birth. But times can change, and as states begin to take the lead, policies that are considered generous yesterday, like 16 weeks, may be behind the times and the law tomorrow. Policies should be flexible, and HR should be empowered to bring issues to the attention of the right people who can make changes for the good of the company. In addition to being very expensive, a lawsuit by the EEOC isn’t good press for anyone.

I hope that everyone reading this is fortunate enough to work at a place where getting a serious illness or wanting to bond with your child won’t mean losing your job. And I hope that new parents have sufficient time to spend with the tiny humans in their lives. As someone who has literally been there, with unpaid leave and all, I know the struggle it represents. Companies can do better by their employees, even their male employees.

beth-robinsonBeth Robinson lives in Denver and is a business law attorney and employment law guru. She practices at Fortis Law Partners. You can reach her at employmentlawgurubr@gmail.com and follow her on Twitter at @HLSinDenver.

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