Victory for Fathers in a Parental Leave Case That Could Be a Harbinger

New York Times - Noam Scheiber

For years, scholars, activists and mothers have criticized policies that place the burden of child-rearing overwhelmingly on women. Increasingly, fathers are joining the criticism of these policies — and asserting their legal rights to challenge them.

On Thursday, JPMorgan Chase announced that it had reached a tentative settlement in a class-action case initiated by a father who was denied the 16-week paid parental leave that the company began offering in 2016. He was offered only two weeks, on the grounds that he was not the primary caregiver.

As part of the proposed settlement, the company will take steps to ensure that its policy is administered in a gender-neutral way. And it will create a $5 million fund to compensate up to about 5,000 fathers who were shortchanged in the past.

Other companies have seen their parental leave policies for new fathers challenged in recent years. A suit by the Equal Employment Opportunity Commission produced a settlement last year with the cosmetics giant Estée Lauder.

But now class-action litigation is bringing even more pressure to bear. Experts said the settlement with JPMorgan Chase, if approved by a judge, would be the first to result from a class-action case brought by employees.

“This gives an incentive for other workers to come forward” at other companies, said Peter Romer-Friedman of the firm Outten & Golden, one of the lawyers representing the plaintiffs. “Without a settlement here, workers wouldn’t receive the benefit of learning about behavior that we believe is unlawful and needs to be reformed.”

Under the law, employers can justify longer parental leave for biological mothers only on the basis of medical necessity. Any paid leave beyond the time it would take a mother to recover from childbirth — which courts have typically recognized to be around six weeks, though the length can vary in individual cases — must be offered to fathers as well.

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Since Mr. Rotondo’s case began, JPMorgan Chase has increased the parental leave available to nonprimary caregivers to six weeks. The company allows any new parent to claim either primary or nonprimary leave after signing a notice that includes a date of birth or adoption. Workers can change their status from nonprimary to primary if new circumstances arise.

Ms. Sherwin said that the A.C.L.U.’s interest in cases like Mr. Rotondo’s dated back to the early work of Justice Ruth Bader Ginsburg on the issue. Justice Ginsburg, who founded the group’s Women’s Rights Project in the early 1970s, has long argued that women would not achieve equality in the workplace as long as men were discouraged from taking on caregiver roles.

Mr. Romer-Friedman said that a $5 million settlement was not likely to deter a company as large as JPMorgan Chase from a practice it was determined to pursue, but would help make men whole if they had been treated unfairly.

The fund is meant to benefit men who were parents of newborns while working at the company between 2011 and 2017 and attest in writing that they would have taken the full leave available to mothers if they hadn’t been deterred from doing so. The amount awarded to each man could come to several thousand dollars.

Only a minority of employers offer paid parental leave, but the percentage appears to be rising rapidly. In a 2018 survey of employers by the Society for Human Resource Management, about 35 percent of respondents offered paid maternity leave, up from 26 percent two years earlier. Just under 30 percent offered paid paternity leave, up from 21 percent two years earlier.

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