July 3, 2017 – As Law360 recently reported in “JPMorgan Hit With EEOC Charge Over Unequal Parental Leave,” a JPMorgan employee, Derek Rotondo, recently filed a class action charge with the U.S. Equal Employment Opportunity Commission over JPMorgan’s parental leave policy. He alleged it results in biological fathers receiving less parental leave benefits than biological mothers and adoptive parents, resulting in class-based disparate treatment. Rotondo also alleged that JPMorgan’s use and reliance on mothers as “primary caregivers” results in a sex-based stereotype that violates state and federal law. Rotondo’s EEOC charge illustrates a new problem for unwary employers with maternity leave policies who may fall into the parental leave trap.
Rotondo’s claim, while quite a novel one, takes a new turn in challenging parental leave policies by arguing that JPMorgan’s policy relies upon and enforces a sex-based stereotype that women are caregivers, who should stay home following the birth of a child, and not return to work shortly after the birth of a child.
Rotondo’s complaint alleges that JPMorgan’s parental leave policy offers the “primary caregiver” of the child 16 weeks of paid time off, and the “nonprimary caregiver” two weeks off.
Rotondo claims that the policy violates Title VII because it automatically assumes that the mother is the “primary caregiver” of the child. Rotondo alleges that when he requested 16 weeks off following the birth of his second child, JPMorgan informed him that he could only receive 16 weeks off if he could show that his wife returned to work within 16 weeks of giving birth or if his wife was “medically incapable” of caring for the child. Rotondo could demonstrate neither — his wife was a teacher, had the summer off, and was in good health.
Pregnancy Discrimination Act Allows Employers to “Discriminate” On the Basis of Sex
Rotondo’s allegations regarding sex-based stereotypes and disparate treatment will meet one major roadblock — the Pregnancy Discrimination Act (PDA). In Newport News Shipbuilding & Dry Dock Company v. EEOC, 462 U.S. 669, 682 (1983) the U.S. Supreme Court recognized that the PDA “makes clear that, for all Title VII purposes, discrimination based on a woman’s pregnancy is, on its face, because of her sex.” Later, in California Federal Savings & Loan Association v. Guerra, 479 U.S. 272 (1987) the Supreme Court held that the limited preferential treatment of pregnant employees for the actual period of disability does not violate Title VII. JPMorgan will likely assert the PDA as the legitimate basis for the challenged policy for the “period of disability” for its female employees following the birth of a child. But the question remains — how long is the “period of disability” following pregnancy and childbirth? Should courts (and do courts want to) wade into this pool?
Schafer v. Board of Public Education for the School District of Pittsburgh
This case determined that the leave period is only intended to cover the period of “actual disability” due to pregnancy.
In Schafer v. Board of Public Education for the School District of Pittsburgh, 903 F.2d 243 (3d Cir. 1990), an employee challenged a collective bargaining agreement (CBA) which offered up to one year of child-rearing leave to female employees, but not male employees. The employee alleged that the policy constituted a policy or practice which deprived men and women from the full enjoyment of employment because of discrimination or classification based on sex.
The district court granted the employer summary judgment, interpreting the question as one of maternity and not child rearing, and concluded that Guerra permitted this favorable treatment toward female employees.
On appeal, the Third Circuit held that the employee made out a prima facie case of discrimination and that the CBA was discriminatory on its face. The burden then shifted to the employer to produce a legitimate reason for the challenged policy. The employer argued that the PDA, as interpreted by Guerra, permitted its favorable treatment of females.
The Third Circuit agreed that Guerra allows preferential treatment, but noted that Guerra emphasized the limited nature of the benefit, which was intended to cover the only period of “actual physical disability on account of pregnancy.” Because there was no evidence in the record that the normal period of disability due to “pregnancy, childbirth, or other related medical conditions,” extended to one year, the CBA contravened Title VII and was unenforceable for any leave granted beyond the period of actual physical disability.
Johnson v. University of Iowa: Have Biological Fathers Opened Pandora’s Box?
Johnson challenged the University of Iowa’s parental leave policy that allowed mothers and adoptive parents to use accumulated sick leave for the arrival of a new child, without extending the same benefit to biological fathers as violating Title VII, state law and the equal protections of state and federal constitutions. Johnson v. University of Iowa, 408 F.Supp. 728 (2004). Under the university’s policy, females could use six weeks or more for pregnancy-related disability, and adoptive parents could use one week accumulative sick leave. Johnson requested and was denied one week sick leave following the birth of his child.
Johnson argued that the policy violated Title VII because it impermissibly distinguished between biological fathers and all other parents, by denying biological parents parental leave. Johnson’s claim was characterized as a “sex plus” claim, where an employer cannot discriminate based on a characteristic tied to sex. Johnson claimed, like Rotondo, that the university policy, as applied, intentionally excluded men as biological fathers from benefits conferred on other similarly situated employees.
EEOC — Equalize Leave
The court looked to EEOC guidance, which stated that Title VII prohibits employers from providing caregiving leave to mothers if the employer does not provide commensurate leave to fathers. EEOC Compliance Manual., § 626.6. Thus, the court concluded, that if an employer provides caregiving leave to mothers, it must offer equal caregiving leave to fathers.
Caregiving Leave is “Unavoidably Intermingled” With Pregnancy Disability Leave
The Johnson court noted that these requirements are difficult for employers to implement and enforce, because mothers are disabled by pregnancy to different extents, and caregiving leave is necessarily involved with pregnancy disability leave. The Johnson court cautioned in a footnote:
Caregiving leave is unavoidably intermingled with pregnancy disability leave. If a mother gives birth and has a pregnancy-related disability, barring unusual circumstances, there will be a newborn baby at home. Newborn babies require much care, and while mothers are home due to pregnancy disability, they are able to provide such care. If the Court were to decide, for example, that any amount of undocumented pregnancy disability leave given to new mothers and not new fathers violates Title VII because there is some caregiving intermingled, it would create an undue burden on employers wishing to provide pregnancy disability leave. If mothers were required to prove the length of disability, employers would have a new, court-imposed duty to ensure they are not providing any caregiving leave. The imposition of such a burden is properly left to Congress or another legislative entity.
Johnson claimed that the text of the university’s policy, like Rotondo, showed direct evidence of discrimination against biological fathers, focusing on the “purpose” statement of the policy, which spoke of “parental” leave. The university relied on two distinguishable clauses within its policy that differentiated between biological mothers, which it deemed the “maternity disability leave policy,” and adoptive parents, which it deemed the “adoptive leave policy.” The court held on the face of the policy, that the “adoptive policy” was wholly caregiving leave, while pregnancy leave was disability leave. The court noted, however, that adoptive parents must drop out of the Title VII analysis, because, when compared to adoptive parents, biological parents are not discriminated against on the basis of sex — both male and female parents receive one week of accumulated sick leave. Adoption leave is granted on the basis of adoptive parent status, not sex. This analysis will likely be extended to Rotondo’s claim, and adoptive parents will likely drop out of the Title VII analysis.
With respect to the EEOC Compliance Manual Notice N-915-058 to § 629 (1990), the court indicated that the employer must justify any disparity in parental leave by providing that it is attributable to a woman’s disability. Because the university produced expert physician testimony that current medical practice is to give a woman six weeks off after delivering a baby, the court found it was sufficient to justify the university’s six-week presumption of disability. Because JPMorgan’s policy allegedly provided 16 weeks to biological mothers, Rotondo may succeed on his claim for parental leave beyond the period of actual physical disability resulting from pregnancy.
JPMorgan’s CEO Jamie Dimon praised the bank’s “primary caregiver parental leave” program of 16 weeks in his letter to shareholders in 2016. If JPMorgan’s program is at fault, as Rotondo represents, the lessons of Schafer and Johnson, as well as high-profile cases against CNN and Dechert, LLP that have settled, reflect that employers with maternity leave programs that extend beyond eight weeks should consider equalizing their programs after eight weeks to offer parental leave and avoid the “parental leave trap.”
A societal shift is occurring as younger generations are producing more hands-on dads. A recent study by the Society of Human Resource Management shows that despite these societal shifts, the workplace has failed to keep pace — only 21 percent of American companies offer paid maternity leave, and 17 percent offer paid parental leave.
Current EEOC guidance and jurisprudence support a policy that any leave offered beyond the time to recover from pregnancy/childbirth must be equally offered to men and women. Employers can implement a policy which allows for six to eight weeks, with language that can allow for additional time to birth mothers if they have a medical necessity. Such language should protect employers from falling into the parental trap. Should employers wish to offer leave beyond this, they should consider offering parental leave to both sexes.
Many states have pregnancy discrimination laws that have greater protections, and employers must consider state laws as well. Lastly, employers must remember that the Family and Medical Leave Act provides up to 12 weeks for bonding after birth or adoption for both parents, which can run concurrently or consecutively under parental leave policies.
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.
 Language in the CBA implied that the disability period was six weeks.
 See Back v. Hastings on Hudson Union Free School District, 365 F.3d 107, 118-19 & nn. 7-9 (2d 2004).
 Johnson, 408 F.Supp.2d at 724, n. 5.
 A former CNN correspondent filed an EEOC charge challenging CNN’s parental leave policy, which gave 10 weeks paid leave to biological mothers, and mothers and fathers who adopted or relied on surrogates, but only two weeks of paid leave to biological fathers. The correspondent, whose daughter was born five weeks premature, had two other young children, and felt he was needed at home to share in caregiving responsibilities. CNN refused his request for additional time off. CNN settled the claim and changed its policy, giving six weeks off to all parents, and more time to birth mothers if they had additional medical needs.
 A former Dechert LLP associate filed an FMLA retaliation suit and alleged disparate sex discrimination on the grounds he was terminated because he was a male caregiver. He took FMLA leave to help care for his children when his wife attempted suicide during her pregnancy, and when he returned to work, he was terminated because his billable hours were too low. He alleged that his partner withheld work in retaliation for taking FMLA leave and cited the firm’s “macho” culture. His sex discrimination claims were dismissed for lack of evidence that he was terminated because he was a male caregiver, but his FMLA retaliation claim survived summary judgment and was settled.