In order to attract the best and the brightest, many companies are offering exceptionally generous perks and benefits, often targeted toward working parents. With the option to spend time at home with your newborn an attractive lure, companies are pitching a range of paid leave options to new parents, including pay for bonding time, medical appointments, adoption services, pay during absence pursuant to Family and Medical Leave Act (FMLA) leave, and for up to 40 weeks beyond FMLA leave, and much more.
In today’s charged climate, these benefits are a welcome respite. However, companies need to be thoughtful about how they are implementing these benefits if they want them to work for everyone in the workspace. Failure to do so could be costly.
Take a recent case for example. In July 2018, the Equal Employment Opportunity Commission (EEOC) settled a sizeable class action lawsuit over unequal parental leave practices. The EEOC claimed that the company’s paid parental leave 
program provided male employees with less generous parental leave benefits than its female employees. Specifically, the company’s policy provided new biological mothers with paid leave time to recover from childbirth plus an additional six weeks of paid leave for child bonding time and a flexible return to work benefit after paid bonding leave expired. New fathers were only eligible for two weeks of paid bonding leave and were expected to return to full time work thereafter.
The EEOC maintained that providing longer leave time for “primary caregivers” than “secondary caregivers,” and allowing different return-to-work policies, amounted to sex discrimination in violation of Title VII of the Civil Rights Act of 1964.
It is important to note that there is a notable difference – which the courts recognize — between paid leave for recovering from childbirth and paid leave for bonding or other non-medical reasons. As recovering from giving birth is uniquely applicable to biological mothers, paid leave benefits for childbirth recovery and medical-related issues can be provided to birth mothers alone. Bonding time, however, should be applied on a gender-neutral basis.
California companies with parental leave policies should consult with experienced legal counsel to ensure they are not unknowingly violating a state or federal law.
