EEOC Case Challenges ‘Primary Caregiver’ Parental Leave Policies

EEOC Case Challenges ‘Primary Caregiver’ Parental Leave Policies

At Lexology, attorneys Alexa E. Miller and Noreen Cull of Drinker Biddle & Reath LLP discuss a charge filed with the US Equal Employment Opportunity Commission in June by JPMorgan Chase employee Derek Rotondo, who claims that the bank’s parental leave policy discriminated against him and other working fathers by “relying on a sex-based stereotype that mothers are the primary caretakers of children”:

According to the charge, Mr. Rotondo requested primary caregiver leave prior to the birth of his child to take advantage of J.P. Morgan’s generous parental leave policy which offers “primary caretakers” 16 weeks of paid leave to care for and bond with a new child. “Non-primary caretakers” are afforded 2 weeks of paid leave under the policy. Mr. Rotondo claims that the company’s human resources department explained that mothers are presumed to be the primary caretakers and that he would only be considered the primary caretaker (and receive 16 weeks of paid leave) if he could demonstrate that his wife had either returned to work or was medically incapable of caring for the child. Women, on the other hand, are automatically designated as the primary caretaker without satisfying the same eligibility criteria, according to the charge. Mr. Rotondo was unable to qualify as the primary caretaker because his wife, a teacher, was on summer break and in good health.

Some employers utilize “primary” and “secondary” caregiver labels in parental leave policies to promote gender neutrality. The challenge for such employers, however, is how to define and designate who is the primary caregiver without making gender-based assumptions. This approach can also lead to inconsistent application of benefits for varying family dynamics.

Many US organizations that used to only offer parental leave to birth mothers have expanded them in recent years to enable new fathers to take paid leave as well (as well as to accommodate same-sex couples and those who become parents through adoption and surrogacy), but some of these organizations’ policies still offer disparate benefits for “primary” and “secondary” caregivers. Campbell Soup Company, for example, rolled out a new policy last year that is gender neutral, as is JPMorgan’s, insofar as it does not distinguish between mothers and fathers, but it does grant different amounts of leave to primary and secondary caregivers.

Critics of this primary/secondary distinction argue that it reinforces the stereotype that one parent (usually the mother) should play a more active role than the other in child care, and so does nothing to help address this imbalance or the “motherhood penalty” many women pay in their lifetime earnings and career progression for taking time away from work to raise children. If Rotondo’s claims are valid, that stereotype is alive and well at some companies with nominally gender-neutral policies.

The most progressive organizations are now offering equally generous leave to all new parents in their workforce: Facebook, for example, offers four months of parental leave that can be taken anytime within the first year, which its founder and CEO Mark Zuckerberg took advantage of after the birth of his first daughter and also plans to use after his second daughter is born this year.

Rotondo’s case is reminiscent of two recent rulings in UK employment tribunals that found in favor of working fathers who said their employers discriminated against them by paying them during their paternity leave at the statutory rate prescribed in the UK Shared Parental Leave law, while mothers in the workforce had their pay topped up. In one of these cases, the tribunal stated that the role of primary caregiver is a choice for parents to make, free of “generalized assumptions” that the mother is better suited to that role.