Can my employer give more leave to new mothers than to new fathers?

By , J.D., UC Berkeley School of Law

Question: Paternity Leave vs Maternity Leave: Is One Longer Than the other?

My partner and I are expecting a baby, and I want to take paternity leave when the baby arrives. At other places I've worked, there's one policy on parental leave. At my current company, there are separate policies on maternity and paternity leave -- and the maternity leave is longer! I understand that only women actually give birth and will need some time off to recover. But once that time is over, don't employers have to offer the same amount of time to male and female employees?

Answer:

Yes, employers must offer the same amount of parental leave to male and female employees. To do otherwise is sex discrimination, pure and simple.

As you point out, the physical act of labor and birth belongs to women alone. In recognition of this, a number of states have passed laws allowing employees to take time off for "pregnancy disability": the period of time when a woman is unable to work because of pregnancy, childbirth, and related medical conditions. These laws vary from state to state. Some require employers to give a set amount of time for all pregnant women; some use different benchmarks for "normal" pregnancies and more complicated deliveries; and some require only that employers give a reasonable amount of time off for these purposes.

However, once this period of disability is over, the laws requiring pregnancy disability leave no longer apply. The federal Family and Medical Leave Act (FMLA) and the laws of some states require covered employers to provide parental leave: leave for the purpose of bonding with and caring for a new child. However, these laws are gender neutral. They require the same leave for new mothers and new fathers.

An employer that chooses to provide more maternity leave than paternity leave is likely in violation of Title VII, the primary federal law prohibiting discrimination, as well as the discrimination laws of every state. Your employer simply might have outdated policies on the books, or it may not be aware that differentiating in this way is discriminatory. Sometimes, an employer trying to be generous to one group may not realize the effect this has on others.

Regardless of the reasons for the policy, you should raise your concerns right away with the HR department or your manager. It's much better to sort things out ahead of time than to end up in a fight to extend your leave -- or to miss out on spending time with your new child.

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