The Push for Paid Paternity Leave

New fathers are seeking more time off to help care for their kids, and some employers are responding with broader parental leave policies that include paternity leave. If not properly applied, however, these policies can lead to costly legal battles.

Thursday, October 22, 2015
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There's data to suggest that new dads are seeking more time away from work to spend with their just-born babies.

Take a recent Boston College Center for Work & Family survey of 1,029 fathers, for instance. The poll asked how important paid paternity leave would be to them if they were considering a new job, and were contemplating having another child at some point in the future. Sixty percent of responding dads described it as "extremely" or "very" important, with 29 percent saying they felt it was "somewhat" important.

Employers, however, apparently haven't warmed up to the concept of paternity leave just yet, or at least not in large numbers. The Society for Human Resource Management's 2014 Employee Benefits Survey, for example, saw 12 percent of employers currently offering paid paternity leave to employees, with just 1 percent of the 510 HR professionals polled saying their companies planned to start offering paid paternity leave in the coming year.

Count Netflix among those with other plans, of course. In August, the Los Gatos, Calif.-based streaming media provider announced it would be providing unlimited paid leave to new parents -- moms and dads -- for up to one year after childbirth

In the nearly two months since, many have wondered if other large companies will follow Netflix's lead. Whether that happens or not, it seems many male employees/would-be dads are clamoring for such policies. Consider, for instance, that The Hartford's recent Millennial Parenthood Survey found 52 percent of millennial men between the ages of 18 and 33 saying they intend to take more than two weeks off after the birth of a baby.

For that matter, some employers may soon have no choice but to provide paid time off to new fathers. States and municipalities including California, New Jersey and the District of Columbia already offer paid family leave to new mothers and fathers alike, and New York is considering a bill that would obligate employers in the state to provide up to 12 weeks of paid family care leave.

Given this increased focus on parental leave policies and new parental leave laws, "it's inevitable" that more litigation will follow, says Nancy Puleo, a Boston-based partner in Posternak Blankstein & Lund's employment law and healthcare practice groups.

Many of these legal claims are likely to come "in the form of sex discrimination claims by new fathers who feel wronged by their employer's leave policies and/or believe their employer violated the applicable parental leave law," she says.

There are ways, of course, for HR leaders to ensure their organizations' parental-leave policies don't leave them susceptible to such claims.

The most obvious solution, says Puleo, is to offer an equal benefit to all new parents, male and female.

If doing so is cost-prohibitive, however, "the next best option is to provide the more-generous leave benefit to the parent who is the primary caregiver," she says. "A primary caregiver can be male or female. With this approach, the non-primary caregiving parent typically receives a less-generous leave benefit."

One recent claim brought by the Equal Employment Opportunity Commission offers an example of what can happen when a new dad feels he was given short shrift.

In September, CNN and the Turner Broadcasting System settled with the EEOC to address charges that the company's paid parental leave policy discriminated against biological fathers.

When former CNN correspondent Josh Levs became a father in October 2013, the company offered 10 weeks of paid leave to biological mothers or parents of either gender who adopted children or relied on surrogates, but only provided two weeks of paid leave to biological fathers, according to the suit. Levs sued when the company declined to grant him additional paid time off to share in the caregiving duties of his new daughter, who was born five weeks prematurely.

While unable to disclose the terms of the settlement, Levs recently confirmed to the New York Times that "CNN and Turner Broadcasting will provide additional paid time off to some other biological fathers who took paternity leave before January 2015." The new policy grants six weeks of paid leave to all new parents, but offers biological mothers an extra six weeks, and longer if medically necessary, according to the Times.

The Family and Medical Leave Act permits birth mothers and fathers, as well as adoptive parents, to take up to 12 weeks of unpaid time off to care for the child. In addition, "most companies" also have policies allowing for paid time off for the birth of a child, which often overlaps with the unpaid time off provided by the FMLA, says Cindy Schmitt Minniti, a New York-based partner in Reed Smith's labor and employment practice.

Traditionally, such paid policies applied strictly to birth mothers, says Minniti. But, as parental leave policies become more inclusive, the EEOC "has taken issue with equality of leave for both men and women as it relates to the birth or adoption of a child."

The EEOC, she says, has taken the position that both parents are entitled to leave to care for a child, and both should be afforded the same amount of leave time.

In response, "we are now seeing more and more companies creating ‘parental leave' policies with equal amounts of paid time off, regardless of gender, and, where applicable, periods of time off under disability provisions for birth mothers."

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An appropriate written policy is fine and good, of course. But companies must also be mindful of how that policy is applied.

"We often see employers who may have a perfectly acceptable written policy in place, but in practice, men are discouraged from taking advantage of the benefit," says Minniti.

Consider the case of Ariel Ayanna, a former attorney in the Boston office of specialist law firm Dechert. In 2013, the firm settled discrimination charges brought by Ayanna, who alleged that Dechert retaliated against him for taking medical leave to care for his wife and new baby.

Ayanna took FMLA leave from the firm in 2008, to care for his newborn daughter and wife -- who suffers from chronic mental illness, which court records indicate worsened to the point that she attempted to commit suicide during her pregnancy. 

Ayanna returned to work after exhausting his four weeks of paid paternity leave, and continued to be the primary caretaker for both of his children. According to court documents, Ayanna felt "his decision to take leave and to prioritize family obligations did not comport with Dechert's firm culture, which he asserts is dominated by a traditional male ‘macho' stereotype of relegating family responsibilities to the distaff side."

In the suit, Ayanna claimed that Dechert accommodates female associates with caretaking responsibilities, but fails to do the same for male employees, and that the company retaliated against him by withholding assignments, falsely evaluating his performance and, ultimately, ending his employment with the firm.

Ayanna's suit may well be indicative of the type of claims we'll start to see stemming from parental-leave policies.

While some will be based on companies' refusal to provide leave to new fathers, "it's more likely that suits will arise out of scenarios where a male employee has taken parental leave and then perceives that he has been retaliated against for doing so," says Ashley Cannady, a Jackson, Miss.-based attorney at Balch & Bingham, and a member of the firm's labor and employment group. 

In addition to providing equal leave and not distinguishing between biological and adoptive parents, Cannady advises creating a culture that doesn't discourage male employees from making use of parental leave.

"Companies must take steps," she says, "to ensure that men who do take advantage of parental leave policies are not stigmatized or otherwise treated differently than men who do not take leave."

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