Thinking About Parental Leave on Father’s Day

Emily Miller

Emily Miller is a student at Harvard Law School.

This Father’s Day, is it time to challenge our assumptions when it comes to parental leave?  Derek Rotondo thinks it is.  Rotondo, a JP Morgan employee, was denied parental leave because the company presumed his wife would be the primary caregiver for their children.  Last Thursday, Rotondo filed a complaint with the EEOC arguing that JP Morgan’s parental leave policy violates state and federal anti-discrimination laws.  The complaint alleges that Rotondo attempted to take advantage of JP Morgan’s leave policy, which provides 16 weeks of paid leave after the birth of a child to the “primary caregiver,” but was told both orally and in writing that the policy presumes that the primary caregiver is the biological mother.  The complaint was filed “on behalf of all fathers who have previously been eligible to receive paid parental leave from JPMC” and challenges JPMC’s “pattern or practice of discriminating against fathers in the provision of paid parental leave by denying them caretaking leave on the same terms as mothers based on their sex and sex-based stereotypes.”  Galen Sherwin, a senior staff attorney at the ACLU Women’s Rights Project, told the Washington Post that this case is thought to be the first private sector challenge to a parental leave policy which distinguishes between primary and secondary caregivers.  A case filed against CNN, which challenged parental leave policies that explicitly gave preference in giving caretaking leave to biological mothers, was settled in 2015.

Although the EEOC has not yet stated whether it will launch an investigation into Rotondo’s claims, the challenge has firm footing in the EEOC’s 2015 Guidance on Parental Leave, which unequivocally requires gender-neutral parental leave policies, stating that “[while] leave related to pregnancy, childbirth, or related medical conditions can be limited to women affected by those conditions…. parental leave must be provided to similarly situated men and women on the same terms.”  Additionally,  as Professor Vicki Schultz of Yale Law School argued to Bustle, the 2003 Supreme Court Case Nevada v. Hibbs already found that anti-discrimination laws could apply to unequal parental leave policies

Not only is gender-neutral parental leave supported by the law, it’s also good policy. Paternal leave policies which exhibit an explicit or implicit preference for biological mothers not only disadvantage men who choose to take parental leave, they also reinforce sex stereotypes, exacerbate the gender-pay gap, and have a disparate impact on LGBTQ+ workers and families.

Despite the notable disadvantages of policies like JP Morgan’s, it is worth mentioning that paid parental leave policies are still a rare benefit for the U.S. workforce.  According to Slate, 114 million people receive no paid parental leave, and nine of the top 44 US employers, including Amazon, Walmart, McDonald’s, Marriott, and Nike, provide paid leave only to its highly-paid workers.  The good news is that we may soon see significant change in parental leave policies across the country: the New York Times reports that bipartisan talks are in the works for a federal program which would provide paid parental leave to all new parents—including fathers.

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