Can an Employer Discriminate with Paid Leave?
February 22, 2022 5:25 AM Subscribe
My employer has an odd policy of giving adoptive fathers four weeks of paternity leave, but natural fathers only receive two weeks of paternity leave.
This seems outrageous to me, but paternity leave is so rare in the USA and this situation is so odd that I can't find anything online that would confirm this is legally discriminatory. In a perfectly just world, it seems like the amount of leave time would just be the same. Can somebody give me a reality check? Am I thinking about this all wrong? Are most paternity leaves for adoption longer than your typical paternity leaves?
This seems outrageous to me, but paternity leave is so rare in the USA and this situation is so odd that I can't find anything online that would confirm this is legally discriminatory. In a perfectly just world, it seems like the amount of leave time would just be the same. Can somebody give me a reality check? Am I thinking about this all wrong? Are most paternity leaves for adoption longer than your typical paternity leaves?
Yeah, is it something like "a parent who gives birth gets X weeks, a parent whose partner gives birth gets two weeks, a parent who adopts gets four weeks"? If the "four weeks if you adopt, two weeks if your partner gives birth" applies to both men and women I don't think it's legally discriminatory.
posted by mskyle at 5:59 AM on February 22, 2022 [5 favorites]
posted by mskyle at 5:59 AM on February 22, 2022 [5 favorites]
I am an adoptive parent and a lawyer who sometimes writes/reviews benefits plans for my companies, and...I don't know the definitive answer to this.
In general, there is no entitlement to paid parental leave at the federal level (FMLA allows you to take unpaid leave), and so your right to paid leave is either up to the state (New Jersey, California, and a handful of others offer paid leave) or fully at the discretion of your employer. "Natural birth parent" is not a protected class of people, and so I'd think that giving an adoptive parent a better deal would be legally okay, though it would be a little weird.
One guess is that your employer wrote a parental leave policy and a separate adoption policy, and that the different allowances are not intentional but instead reflect different cut-and-pastes from similar policies and benchmarks.
Or maybe they added paternity leave at a time when two weeks was generous and intertia has just kept it there. One of the companies I advise is small and traditionally had an older workforce. They had generous benefits across the board but it wasn't until one of their prized (and vocal) employees was getting ready to have a baby that they dusted off their parental leave policy and realized how outdated it was.
posted by AgentRocket at 6:10 AM on February 22, 2022 [10 favorites]
In general, there is no entitlement to paid parental leave at the federal level (FMLA allows you to take unpaid leave), and so your right to paid leave is either up to the state (New Jersey, California, and a handful of others offer paid leave) or fully at the discretion of your employer. "Natural birth parent" is not a protected class of people, and so I'd think that giving an adoptive parent a better deal would be legally okay, though it would be a little weird.
One guess is that your employer wrote a parental leave policy and a separate adoption policy, and that the different allowances are not intentional but instead reflect different cut-and-pastes from similar policies and benchmarks.
Or maybe they added paternity leave at a time when two weeks was generous and intertia has just kept it there. One of the companies I advise is small and traditionally had an older workforce. They had generous benefits across the board but it wasn't until one of their prized (and vocal) employees was getting ready to have a baby that they dusted off their parental leave policy and realized how outdated it was.
posted by AgentRocket at 6:10 AM on February 22, 2022 [10 favorites]
A coworker of mine adopted a baby from China a long time ago and I recall that the process was extremely long. As in, they went over there and sat around for weeks waiting for the bureaucracy to approve the paperwork and let the child travel to the USA.
Perhaps the policy is just allowing for more time for those employees that are doing something like that. Not really to discriminate but just take some stress off the parents as they try to finish the process.
posted by JoeZydeco at 7:23 AM on February 22, 2022 [12 favorites]
Perhaps the policy is just allowing for more time for those employees that are doing something like that. Not really to discriminate but just take some stress off the parents as they try to finish the process.
posted by JoeZydeco at 7:23 AM on February 22, 2022 [12 favorites]
From JD Supra:
In Johnson v. University of Iowa, 431 F.3d 325 (8th 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 14th 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.
posted by slkinsey at 10:29 AM on February 22, 2022 [4 favorites]
In Johnson v. University of Iowa, 431 F.3d 325 (8th 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 14th 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.
posted by slkinsey at 10:29 AM on February 22, 2022 [4 favorites]
Discrimination, in general, is not illegal, nor discouraged. An employer discriminates against employees without kids by offering parental leave. An employer discriminates against non-qualified employees by hiring qualified employees. An employer discriminates against those who want to spend money now by offering tax-advantaged retirement plans with employer contributions.
Only discrimination against certain "protected categories" is illegal in the United States. Having a kid naturally is not a protected category itself, nor is not correlated with any protected categories that I'm aware of. Hence, discrimination via how parents have kids is not illegal.
Your employer is encouraging parents to have kids via adoption as opposed to through childbirth. It's up to you whether you view that as a positive social good or not. I do view it as a social good, so I'm fine with this policy.
posted by saeculorum at 5:56 PM on February 22, 2022 [1 favorite]
Only discrimination against certain "protected categories" is illegal in the United States. Having a kid naturally is not a protected category itself, nor is not correlated with any protected categories that I'm aware of. Hence, discrimination via how parents have kids is not illegal.
Your employer is encouraging parents to have kids via adoption as opposed to through childbirth. It's up to you whether you view that as a positive social good or not. I do view it as a social good, so I'm fine with this policy.
posted by saeculorum at 5:56 PM on February 22, 2022 [1 favorite]
Parenting is a protected status in a few circumstances. It’s illegal to take adverse employment action against a woman because she is or might become a mother, or pregnant. Outside of designated senior housing, it’s illegal to refuse housing on the basis that one or more of the documents is a child.
posted by MattD at 5:13 AM on February 23, 2022
posted by MattD at 5:13 AM on February 23, 2022
This thread is closed to new comments.
It's the United States, they can do whatever tf they want.
Is this a blanket adoptive parent policy where the leave applies equally to mothers, fathers, hetero and gay families alike? (vs a bio parent policy separate for the birther and partner)
Are you very sure you're understanding it correctly? I'm in HR and I get questions from people who have worked for us for years asking how their vacation works, so I will generously say that employees are bad at reading policies, ask your HR to clarify.
posted by phunniemee at 5:43 AM on February 22, 2022 [2 favorites]