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The EEOC showed it sides with working moms…and dads in a recent lawsuit over parental leave time. In July 2014, the EEOC issued Enforcement Guidance on Pregnancy Discrimination and Related Issues making it clear that while leave related to medical conditions associated with pregnancy and childbirth can be limited to women affected by those conditions, employers must provide parental leave for child bonding on an equal basis to men and women.   
The EEOC showed its guidance has more than just baby teeth when it filed a lawsuit in August 2017 against cosmetic giant Estee Lauder, alleging the company’s parental leave policy provided new fathers with less paid time off to bond with newborns than mothers received. The lawsuit also alleged the policy denied new fathers the same return-to-work benefits new mothers received, including modified work schedules. 
Under a consent decree filed on July 12, 2018, the EEOC and Estee Lauder agreed to resolve the lawsuit by providing a $1.1 million settlement for the over 200 new fathers allegedly denied the same leave rights as new mothers. In the settlement, Estee Lauder denies any violation of the law. 
In addition to the financial settlement, Estee Lauder also amended its paid parental leave policy to provide that all new parents can take up to 20 weeks of paid leave to bond with a newborn and six weeks of flexible work arrangements after they return to work following the birth of a child.  Under the revised policy, leave for child bonding time is separate from any short-term disability leave available to mothers for pregnancy-related medical conditions, childbirth, or child-birth related medical conditions.  
In light of the EEOC’s lawsuit against Estee Lauder, employers may want a refresher on some other aspects of the agency’s 2014 enforcement guidance.  According to that guidance:   
  • Discrimination claims under the Pregnancy Discrimination Act can be based not only on current pregnancies, but also on past pregnancies, an employee's potential or intention to become pregnant in the future, infertility treatments, the use of contraception, abortion, and lactation.
  • Employees cannot be required to take leave simply because they are pregnant without proof of a bona fide occupational qualification.
  • A broad range of pregnancy-related conditions, such as limitations related to walking, carpel tunnel syndrome, sciatica, mandatory bed rest, depression, and nausea, may be considered disabilities under the Americans with Disabilities Act. 
Of course, a key takeaway for employers considering how to structure a parental leave policy is the distinction between leave for bonding time – which under the EEOC’s guidance must be made available on an equal basis for fathers and mothers – and leave related to medical conditions associated with pregnancy which is available to new mothers. Employers should consult their McDonald Hopkins employment counsel to assist in developing legally compliant parental leave policies.