Parental leave policies are back in the news.  Jones Day, one of the nation’s largest law firms, faces legal action claiming its parental leave policy is discriminatory.  The policy at issue provides 10 weeks of paid parental leave for biological parents (regardless of gender) who seek to be primary caregivers.  In addition, the policy grants biological mothers eight (8) weeks of disability leave.  This policy, on its face, should pass muster given EEOC guidance that biological mothers disabled as the result of childbirth may be given additional leave benefits. However, in the complaint filed yesterday, plaintiffs allege that in practice, the firm gave women 18 weeks of combined leave regardless of whether or not the women were actually disabled. The plaintiff’s contend that the grant of 18 weeks of leave for adoptive parents supports their position that leave was intended as bonding leave rather than disability leave.

This lawsuit underscores the importance of policy and practice being consistent and equal without regard to gender. The plaintiff’s view the firm policy as treating fathers less favorably, rather than accepting the firm’s stated intention of treating disabled mothers more favorably.  Washington D.C., where plaintiffs worked, does not have state disability insurance (SDI).  However, California and other states’ SDI programs presume a six-week disability period for a biological mother delivering vaginally and an eight-week disability period for cesarian delivery.  In light of the SDI presumptions, I don’t think the Jones Day policy was unreasonable in providing all birth mothers with a presumed eight-week disability period.  But, the courts may not agree with me.

You may recall recent settlements based on parental leave policies that were facially discriminatory or disparately impacted fathers, or can remind yourself of those details here.

In light of the nuanced applications and continued media scrutiny on the value of paid parental leave in the workplace, companies should review their written policies and implementation practices to ensure compliance with this changing area of the law.

The complaint also alleges retaliation and gender-based pay disparity.