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EEOC Files Parental Leave Lawsuit Against Estee Lauder

Published by and on November 14, 2017

A new suit filed by the EEOC addressing equal parental leave policies for new mothers and new fathers caught our attention, but we are not recommending action just yet.

On August 30, the Equal Employment Opportunity Commission filed suit against Estee Lauder alleging it is violating the Equal Pay Act and Title VII through the operation of its parental leave policies. The case is Equal Employment Opportunity Commission v. Estee Lauder Companies, Inc. (see complaint here). What is interesting about this case is that it was brought on behalf of a male employee and alleges that men at Estee Lauder are subject to unlawful sex discrimination and unequal wages pursuant to the Company’s parental leave programs because the male employee was not entitled to take the same amount of paid leave following the birth of his child or take advantage of flexible back to work arrangements as a female employee would.

If this made you sit up a bit straighter in your chair, you are not alone. There are different kinds of leave available after the birth of a child. There is, of course, FMLA leave that provides up to 12 weeks of unpaid leave for eligible employees (male or female) to recover from birth or care for a newborn. An employer may also have a short-term disability plan, which only new mothers would be entitled to. In addition, the employer may have a parental leave policy that provides additional either paid or unpaid leave to eligible employees —- the terms of this policy would be entirely up to the employer.

The EEOC has long said that any parental leave policy that goes beyond “the physical limitations imposed by pregnancy or child-birth related” should be provided in an equivalent amount to new fathers. (If you’re interested, here is the EEOC’s guidance on the topic, issued in 2015). To comply with this, employers often offer a parental leave policy that relies on a “primary/secondary caregiver” distinction, providing the secondary caregiver with a smaller amount of leave.

Estee Lauder had its own version of this kind of primary/secondary parental leave policy, but according to the EEOC, did not permit male employees to apply for “primary caregiver” leave, which is the crux of the EEOC’s allegations. Additionally, Estee Lauder offered a flexible schedule for mothers returning to work that was not extended to new fathers. Accordingly, the maximum amount of paid time a male employee could take off under the policy was two weeks, while female employees were entitled to up to six weeks as well as a flexible schedule.

If this raises concerns about your primary/secondary caregiver policy, keep in mind that the issue for Estee Lauder is that it did not give male employees the option of applying for primary caregiver leave. If your parental leave policy permits both male and female employees to designate themselves as a primary caregiver, you are probably not in the same situation as Estee Lauder. That being said, we will be watching this case closely. We are also going to use this as a reminder that if you are in a jurisdiction that has recently enacted state or local paid family leave laws, you should ensure your policy is complaint.

Welter Insight

The EEOC’s case against Estee Lauder highlights an element of their Pregnancy Discrimination Enforcement Guidance —- parental leave offered for bonding (i.e. non-medical) purposes must be offered equally to male and female employees. If you offer leave on a primary/secondary caregiver distinction, know that while such a policy is the subject of this suit, it was the fact that Estee Lauder did not allow male employees to apply for primary caregiver leave that has them in hot water.

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