Last month, the EEOC filed a lawsuit against Estee Lauder in a Pennsylvania federal court alleging that Estee Lauder’s parental leave policy discriminates against employees on the basis of gender by providing unequal benefits to biological mothers and fathers. What’s notable about this lawsuit is that it involves a policy which, on its face, uses a “primary” and “secondary” caregiver distinction that provides different amounts of leave to employees based on that distinction without regard to their gender – a practice used by many employers in their parental leave policies. This lawsuit has left many employers wondering whether such a policy is at risk of being unlawful. We do not think it is at this time.

What the EEOC Alleges:

As alleged by the EEOC, Estee Lauder’s policy went further than a simple distinction between a primary and secondary caregiver. It rendered that distinction meaningless, the EEOC said, by allowing a biological mother to obtain greater leave benefits (6 weeks of paid leave plus a post-leave flex schedule instead of just 2 weeks of paid leave and no flex schedule) even if they were secondary caregivers, because they could qualify under a separate maternity leave policy which offered enhanced benefits. In contrast, biological fathers could not qualify under the separate maternity leave policy, leaving them eligible only for the benefits provided under the secondary caregiver policy. In addition, the complaint alleged that Estee Lauder communicated to biological fathers that they could not even qualify for the enhanced leave benefits as primary caregivers because that policy only applied in “surrogate” situations.

What This Means:

We are aware that many employers have been reviewing and revising their parental leave policies, particularly in jurisdictions – such as New York – that have adopted paid family leave laws and to otherwise keep up with an ever-changing market. Employers should be mindful of this latest lawsuit when engaging in that exercise. However, parental leave policies relying on a primary/secondary caregiver distinction alone, which are consistently enforced, do not appear to pose a problem for employers at this time.