Maybe you saw this article “Standing Up for the Rights of New Fathers,” in the New York Times a few weeks ago about the new dad, a reporter for CNN, who filed a discrimination claim with the EEOC against Time Warner (CNN’s parent) challenging its paid parental leave policy.  The policy gives 10 weeks of paid leave to birth mothers, and to employees who adopt or have children through a surrogate, regardless of the employee’s sex.   But biological fathers only get two weeks of paid leave.

For years we have advised business clients that parental leave policies (note:  I didn’t say disability leave policies for pregnancy and/or childbirth) should treat men and women similarly.  The NYT article made me wonder whether we’ve been correct.  My conclusion is “yes,” even though there actually is a case that upholds a policy very similar to the CNN/Time Warner policy described in the NYT article.

In Johnson v. University of Iowa, 431 F.3d 325 (8^th Cir. 2005),  the Eighth Circuit Court of Appeals affirmed that a policy that allowed biological mothers and adoptive parents to use paid sick leave to take time off upon the birth or adoption of a child, but did not permit biological fathers to use paid time off for that purpose, was permissible.  The reasoning is that as between biological mothers and biological fathers, the policy was actually giving the women disability leave, which the fathers couldn’t claim to need.  And as between biological fathers and adoptive parents, it was rational for the state to conclude that adoptive parents are likely to face time demands that are greater than those faced by biological parents, and financial demands that are not covered by insurance.  (Note to Lawyers:  although the plaintiff’s claim was premised on both the 14^th Amendment’s Equal Protection Clause and Title VII, the court reasoned that biological fathers aren’t a suspect class and the right to paid leave is not fundamental, so “rational basis” scrutiny was appropriate for both aspects of the claim.)  Thus it was permissible for the state to provide the paid leave benefit to adoptive parents, but not to biological fathers.

But it is not clear that a court would reach the same result in the CNN case.  All of the leave provided to biological mothers there is not disability leave, and, at least in my opinion, the complainant has a pretty good argument that he is similarly situated to an adoptive mother, but receives less generous paid leave upon the arrival of a child.

As for parental leave, our “don’t discriminate” advice is the safer course.  And here are some legal rules for employers to follow to limit exposure:

• If your business is covered by the state or federal FMLA (i.e., you have 50 or more employees for the federal law and 75 or more employees for the Connecticut statute), moms and dads have equal rights to unpaid FMLA leave upon the birth of a child or to care for a child with a serious health condition;
• Pregnancy can’t be treated less favorably than any other disability with respect to either paid or unpaid disability leave.  In Connecticut, women have a right to a “reasonable period” of unpaid leave for disability relating to pregnancy – and federal law also protects pregnant women form discrimination.  Most doctors, disability insurance carriers, and employers use six weeks as the “default” period of paid or unpaid leave for disability arising from a normal pregnancy and childbirth – but it can be longer if medical necessity requires.
• If your business provides paid or unpaid parental leave (or, as some call it, “caregiver” leave) in addition to paid or unpaid disability leave, you’ll be vulnerable to a discrimination claim if you provide different benefits to men and women.

Your business may be able to treat adoptive parents more favorably than biological parents when it comes to parental leave, but I doubt that there’s a benefit to such a policy that’s worth the risk of a discrimination claim.