The Federal and Massachusetts Anti-Discrimination Agencies Both Say That Parental Leave Must Be Provided Equally to Men and Women

Just over 36 years ago, on October 31, 1978, the Pregnancy Discrimination Act (“PDA”) was signed into law, extending the protections of Title VII to pregnant women. This summer, the Equal Employment Opportunity Commission (“EEOC”) issued new enforcement guidance on pregnancy discrimination, explaining how both the PDA/Title VII and the Americans with Disabilities Act provide protections for pregnant women in the workplace.

While much of the response to the EEOC’s new enforcement guidance has focused on the provisions that require employers to provide reasonable accommodations to pregnant women, another important aspect of the guidance – one that affects both men and women – has received substantially less attention. In the new guidance, the EEOC clarifies that under Title VII men and women are entitled to parental leave on an equal basis. To be precise, “similarly situated men and women” must receive parental leave “on the same terms.” What does this mean? It means that any leave provided to a new mother that extends beyond the “period of recuperation from childbirth” must also be provided to a new father.   In other words, any leave provided for the purpose of bonding with a child or providing care for a young child – as opposed to leave that is provided for the purpose of recuperating from childbirth – must be provided equally to men and women. Moms and dads get the opportunity to bond with and care for their babies.

Employers in Massachusetts should already be prepared to treat men and women equally. Although the Massachusetts Maternity Leave Act (“MMLA”) provides eight weeks of unpaid leave for any qualifying “female employee,” the Massachusetts Commission Against Discrimination (“MCAD”) has long taken the position that providing leave only to female employees may constitute sex discrimination. However, despite the MCAD’s long-standing guidelines, some employers have issued written employment policies that state that leave under the MMLA is reserved to women, while other employers have verbally informed male employees that they do not follow the MCAD’s guidelines and therefore do not provide parental leave to men. Nationwide, employers do not treat men and women equally: according to the White House Counsel of Economic Advisers (“CEA”), fifty-eight percent of employers report that they offer paid maternity leave, while only fourteen percent of employers offer paid leave to spouses or partners. (As the CEA also notes, “The United States is currently the only developed country that does not offer government-sponsored paid maternity leave.” Employees covered by the Family and Medical Leave Act (“FMLA”) are eligible for 12 weeks unpaid leave to care for a baby in the first year after its birth or placement for adoption.)

Men who do take parental leave frequently report that it is hard to do so. They may be stigmatized in the workplace; men also report pressure from supervisors and even colleagues not to take leave or to take as little leave as possible. At least one Massachusetts employer rewrote its employee handbook to delete its paternity leave policy after two men actually attempted to take paternity leave consistent with the company’s written policy.

The EEOC has now reaffirmed the basic principle that similarly-situated men and women must receive equal treatment in the workplace. Men and women must have equal opportunities to care for and bond with their children. Likewise, families with two fathers must have equal opportunities to care for and bond with their children. While workplace cultures may need to evolve to catch up with this reality, the EEOC’s view of the law is clear: men and women must receive parental leave on equal terms.