Posted June 24th, 2019.
By Alexandra Harwin
Law360 (June 24, 2019, 1:35 PM EDT) — The recent announcement of a major class action settlement challenging JPMorgan Chase’s parental leave policy is, rightly, getting a lot of attention. The case was brought by a father who sought the maximum leave that Chase provides to caregivers. He couldn’t qualify for the leave for reasons that he alleged were sex discrimination, and the U.S. Equal Employment Opportunity Commission agreed. Rather than fighting a lawsuit, Chase signed on to a $5 million class action settlement for fathers who didn’t get the paid leave they deserved.
How, exactly, did Chase’s policy discriminate against men? On paper, the parental leave policy that the plaintiff challenged seemed gender neutral. It didn’t explicitly distinguish between mothers and fathers. Instead, it said that “primary caregivers” would get 16 weeks of paid leave while “nonprimary caregivers” would get two weeks of paid leave.
But the lawsuit indicates that there was an unwritten policy that made it impossible for most men to qualify for the longer leave.That’s because Chase presumed that birth mothers qualified as primary caregivers and would routinely give them the longer leave, but the company apparently wouldn’t let men qualify for the longer leave unless the birth mother was unable care for the child, either because she was medically incapable or if she was back at work.
If this is how Chase’s policy worked, it’s easy to see why it generated a lawsuit. There are a host of federal, state and local laws that prohibit discrimination on the basis of sex, and men are entitled to avail themselves of these protections just as women are. Under these laws, employers cannot make pay and benefits decisions driven by sex.
This means that — with the narrow exception of disability leave tied to pregnancy or childbirth — employers can’t have policies or practices that treat men and women differently when it comes to parental leave.
A corollary is that employers are also prohibited from making decisions based on sex stereotypes, including the assumption that men aren’t as involved in their children’s lives as women. In addition, some jurisdictions have laws that expressly prohibit discrimination based on an employee’s family responsibilities or caregiver status.
What lessons can we learn from Chase’s parental leave policy and the litigation challenging it? The obvious takeaway is that employers cannot apply what looks like a gender-neutral policy in a discriminatory way. Employers cannot treat “primary caregiver” as code for mothers and “nonprimary caregiver” as code for fathers. They cannot set up extra hurdles or higher standards for men to qualify as primary caregivers. Instead, men and women should be able to qualify on equal terms.
But those aren’t the only lessons from this case. There are many more reasons why employers should proceed with caution when it comes to policies that differentiate between primary and nonprimary caregivers.
First, even if they’re applied in a gender-neutral way, policies that favor primary caregivers usually result in men getting systematically less parental leave than women. That’s because only a small minority of men are primary caregivers; according to data from the U.S. Census Bureau, in families with children under age five, even where the mothers work, only one in five fathers assume primary care-giving responsibility. It’s easy to envision a spate of disparate impact lawsuits challenging these types of policies.
Second, policies that assume that families have primary caregivers and secondary caregivers in the first place are often premised on, and perpetuate, sex stereotypes. Many employers design these policies assuming that women are going to be the primary caregivers and men are going to be secondary.
These stereotypes are amplified if women end up requesting primary caregiver leave at higher rates than men. When women applying for caregiver leave admit that they’ll be doing the lion’s share of parenting, it can reinforce employers’ stereotypes that women are primarily responsible for children.
Third, there’s a stigma when workers are required to self-identify as primary caregivers. Many employees — men and women alike — are already concerned that taking any parental leave will undermine their professional standing; in a Deloitte Touche Tohmatsu Ltd. survey, more than half of people surveyed felt that they would be perceived as lacking commitment to the job if they took parental leave.
The stigma of being perceived as a primary caregiver is even worse. As Vanderbilt University law professor Jennifer Shinall has written, according to the data, “the best way to reduce the stigma is to make it more commonplace for men to take family leave.” But policies that differentiate between primary and secondary care givers drive the opposite result.
Fourth, policies that favor “primary caregivers” don’t work for egalitarian families that defy gender stereotypes about care-giving roles. Many parents-to-be aspire to more equal division of childcare responsibilities, and in these households there simply isn’t anyone who stands out as the “primary caregiver.” Research shows that this is especially true for same-sex families, which tend to divide up household responsibilities in a more egalitarian way than heterosexual couples.
Fifth, family leave policies that give less time to “nonprimary caregivers” reinforce gender inequality outside the workplace as well. Learning to parent a child isn’t easy for anyone; it takes lots of hands-on time to figure out what you’re doing.
There is evidence that fathers who take parental leave, and who take longer parental leave, have greater involvement in their children’s lives. By contrast, policies that result in fathers getting only a week or two to spend with their newborns set them up for a lesser role in their children’s lives in the long term.
It’s clear that increasing numbers of men care about paternity leave and are willing to fight for their right to parent. Policies that award leave based on whether an employee is a primary or secondary caregiver rely on, and reinforce, stereotypes that end up hurting parents of both sexes, albeit in different ways. Employers should strongly consider scrapping these discriminatory policies.
Alexandra Harwin is a partner and co-chair of the national Title VII practice at Sanford Heisler Sharp LLP.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
Read more at: https://www.law360.com/articles/1172171/5-lessons-from-jpmorgan-s-parental-leave-litigation?copied=1