Drafting a Parental Leave Policy? Learn from the Estée Lauder Story or You'll Risk Smelling Stinky

Parental leave policies are on the rise.

Maternity. Paternity. Caregiver. You name it. I am drafting more of these policies than ever before.

So, you can imagine my interest when, last year, the EEOC sued skin care/fragrance behemoth Estée Lauder, claiming that its parental leave policies discriminated against men. According to the EEOC at the time, Estée Lauder provided eligible new mothers six weeks of paid parental leave for child bonding (in addition to leave for recovery for childbirth), but only offered new fathers two weeks of paid bonding leave. The Company also apparently provided flexible return-to-work benefits to moms that were not offered to dads.

In unison, new dads across America booed and hissed loudly [of course, while we spritzed on our “Lauder for men” cologne].

A New Era at Estée Lauder

I never have been able to get my hands on that elusive Estée Lauder parental leave policy. So, I have no idea whether its policy effectively discriminated against men (as EEOC claims) with respect to bonding leave and other benefits.

But after reading my good friend Marti Cardi‘s blog post, I now know that Estée Lauder has settled the infamous EEOC lawsuit for a $1.1 million payment to a class of dads and a consent decree that requires the Company to avoid treating dads in a discriminatory manner.

In defense of Estée Lauder, it’s important to note that the Company announced earlier this year that it would significantly sweeten its parental leave benefits for both women and men who regularly work 30 hours per week. According to a Business Insider report (as reported by HR Dive), the Company now offers:

• Six to eight weeks to moms for recovery from childbirth
• An additional 20 weeks of paid leave for bonding (available to moms and dads)
• $10,000 toward adoption expenses
• A back-to-work transition program (regardless of gender or sexual orientation)

The company reportedly will also continue to offer $20,000 toward fertility treatments and in-home child care and elder care at reduced rates.

That’s a pretty fabulous parental leave policy, says me, the father four times over.

Insights for Employers

Are you thinking of creating your own parental leave policy? Or sweetening benefits in a leave policy you currently offer your employees? Here are a few nuggets you might consider to ensure your parental leave policies are up to snuff:

• You choose Eligibility Requirements, not some Federal agency. Employers have the right to set eligibility for parental leave benefits. You are not obligated to provide these benefits on day one of employment. (Estée Lauder, for example, requires at least three months’ service time, and other employers often require up to 12 months of service). Clearly, you can require some period of service before accrual, as you likely do with other employment benefits.
• Moms vs. Dads. You can treat women who give birth better than men. Really, you can. And you should. After a woman has carried a child in the womb for nine months, endured the painful throes of childbirth, and now needs time to recover, doesn’t it make sense that she deserves more time off after childbirth than, say, the guy holding her hand during the delivery? Me thinks so, too. Based on its June 2015 pregnancy discrimination guidance, the EEOC agrees. (See example 14 in the guidance.)
• But let’s not get too crazy about Moms vs. Dads. Although the EEOC makes clear that you can treat mom better to allow her to recover from childbirth, employers cannot treat the sexes differently when it comes to bonding leave. [Ahem, just ask Estée Lauder.] In its pregnancy discrimination guidance, the EEOC makes clear:

“for purposes of determining Title VII’s requirements, employers should carefully distinguish between leave related to any physical limitations imposed by pregnancy or childbirth . . . and leave  for purposes of bonding with a child and/or providing care for a child.”

If you provide paid parental leave to female employees for bonding with a newborn, as opposed to leave provided as a result of pregnancy-related conditions (e.g., pregnancy, childbirth or related medical conditions), it must provide the same leave to men or risk a gender discrimination claim. The logic behind the EEOC’s position is clear—dads need lovin’ too.

This is the takeaway of the Estée Lauder case.  Let me be clear: when it comes to bonding leave, you cannot treat men differently from women. If you currently take this approach, change it now.

• Parents getting busy don’t get extra! Might you want to consider a provision that limits benefits in the event of multiple births or adoptions in the same 12-month period? Crazier things have happened, and you have every legal right to limit the benefit over a period of time.
• Exhausting other paid leave prior to parental leave is legal. Employers can require employees to use vacation/sick/PTO benefits before collecting parental leave pay. The same could be said for maternity leave benefits, as long as you maintain the same requirement for employees absent for other types of medical conditions. That said, consider employee morale here and think about allowing employees to hold back a few of their accrued paid leave days so they can use them later in the year (again, all in the name of work/life balance).
• Run FMLA leave concurrently with parental leave. Just do it. You have a legal right to do so. ‘Nuff said. If you don’t do this, you might just start wondering why your employees are away from work more than they’re at work.
• Primary vs. secondary caregiver provisions are not for the faint of heart. Ay de mi! The plot thickens! I am convinced oodles of HR professionals attended a SHRM conference a few years back in which some charming presenter encouraged them to draft parental leave policies providing leave for the “primary” vs. “secondary” caregiver in the family. And now, we’ve created a mess. Technically, these provisions are fine, but they surely can be a challenge to administer. So you have an employee sign a document acknowledging that they are the “primary” caregiver so they can get more leave. Whoa – sign me up, along with every other individual you employ.  Note: Draft primary vs. secondary care giver at your own risk (and only after you consulted an employment attorney).
• If you need a sample paid FMLA policy (covering parental leave and other forms of family and medical leave), I have you covered. Last year, I partnered with non-profit organization Panorama to prepare such a policy, which can be accessed (for free!) here.