Raising kids is part joy and part guerilla warfare.  – Ed Asner

There is one issue in which women often receive more favorable treatment than men: parental leave. Women (whether because of their employers’ leave policies or individual choices) receive an average of 41 days of parental leave while men receive an average of 22 days, according to a 2016 report.

Companies may attempt to make this sex neutral by designating greater leave for ”primary caregivers” and less leave for ”secondary caregivers.” Yet, such designations are fraught with administrative quandaries: e.g., fathers who assert “primary caregiver” status or couples who claim to be “co-primary” parents.

To such practical problems, now add the emerging legal problems evident in a pair of claims.

In the first case, the ACLU filed a discrimination charge with the EEOC on behalf of a male whose employer provided fathers only 2 weeks of paid leave while mothers received 16 weeks of paid leave. There, the charge asserts that the “primary caregiver” rule is a cover-up for sex discrimination enforcing “a sex-based stereotype that women are and should be caretakers of children.”

In the second case, the EEOC sued alleging another employer discriminated more overtly. There, only women were allowed to claim “primary caregiver” status (which granted 6 weeks of paid leave) and were also granted “transition-back-to-work” benefits that were unavailable to secondary caregivers (who only received 2 weeks of paid leave).

Such claims draw their legal theories from the EEOC’s Enforcement Guidance on Pregnancy Discrimination and Related Issues (June 2015). That guideline stakes out the EEOC’s thesis that parental leave, beyond that tied to any physical limitations imposed by pregnancy or childbirth, must be offered in equal amounts to both parents:

Leave related to … medical conditions can be limited to women affected by those conditions. However, parental leave must be provided to similarly situated men and women on the same terms.  If, for example, an employer extends leave to new mothers beyond the period of recuperation from childbirth (e.g. to provide the mothers time to bond with and/or care for the baby), it cannot lawfully fail to provide an equivalent amount of leave to new fathers for the same purpose.

Does this mean that companies are required to offer an equal amount of baby-bonding leave to both parents? Perhaps a gender-neutral policy (e.g., where a company offers “primary” and “secondary” leave, and men and women are both able to claim “primary” caregiver status and thus receive the longer leave) could withstand disparate treatment legal challenge.

But, shouldn’t policies be designed to avoid litigation rather than to create interesting test questions? If so, parental leave (which is to say “bonding” leave as opposed to “medical” or “disability” leave) should – in a perfect world – be both sex neutral and role neutral.

It is, of course, the issue of cost that makes this an imperfect world.

Imagine Blackacre Ltd whose current policy utilizes the primary/secondary dichotomy and allocates six weeks paid leave for the former and two weeks for the latter. Equalizing upward adds cost (the potential of four weeks paid leave for every secondary caregiver whose family adds a child) while equalizing down adds a morale risk.

Solutions will be customized. In some cases, it may be possible to amend parental leave policies to address state statutes that are mandating partial-paid leave for baby-bonding, such as the California Paid Family Leave and New York State Paid Family Leave.  In others, it may be necessary to be creative (e.g., combinations of fully paid and partially paid leave).

It is also possible to gamble on such leave going unused. It is a documented phenomenon with vacation time, which is consistently being left on the table by employees for a variety of reasons.  See The Hidden Costs of Unused Leave (https://www.projecttimeoff.com/research/hidden-costs-unused-leave). To the extent that the 41 days for women vs 22 days for men in current practice reflects social choices, the cost of equalization may not be astronomical.