Parental Leave: Generous to a Fault?

10-02-2019
By Ginger McRae, Esq., SPHR, SHRM-SCP

Take married former Supreme Court law clerks, mix in a baby on the way and a big law firm parental leave policy that provides more paid time off for the mother than the father, and you have a recipe for a lawsuit. 

Mark Savignac and Julia Sheketoff, according to their complaint filed in August 2019 in federal court in the District of Columbia, met as law clerks for Associate Supreme Court Justice Stephen Breyer, married in 2017, and worked in the appellate practice group at Jones Day, a “big law” firm. In January 2019, they had a baby. Sheketoff had left Jones Day by this time, with Savignac remaining there on a partnership track. 

Jones Day’s parental leave policy gives employees who are primary caregivers 10 weeks of paid leave and six weeks of unpaid leave after the birth of a child. Biological mothers receive an additional eight weeks of paid leave regardless of the length of their disability. Adoptive parents receive 18 weeks of paid leave, regardless of gender.

Not only does the Savignac/Sheketoff lawsuit challenge Jones Day’s parental leave policy, it also alleges that Savignac was fired in retaliation for complaining about the policy while he was on leave. Savignac claimed that he emailed Jones Day to complain that the parental policy discriminated against men and demanded equal treatment, and that in doing so, believed he had a right not to be retaliated against for asserting his view. Jones Day countered that Savignac was fired because he “showed poor judgment, a lack of courtesy to his colleagues, personal immaturity, and a disinterest in pursuing his career at Jones Day—all of which are apparent in an intemperate email he sent to a member of our [the firm’s] professional staff and in the complaint itself.” Jones Day said Savignac “exhibited open hostility to the Firm, demanding that he be given what he wants ‘or else’ and claiming hardship under circumstances that no reasonable person would view as anything but exceptionally generous.”¹

Besides the interesting questions raised about parental leave, discussed below, it is hard to ignore the questions raised about retaliation and the notion inherent in Jones Day’s response that opposition to an allegedly discriminatory act must take a form deemed appropriate by the employer. Equal Employment Opportunity Commission (EEOC) Guidance, however, defines reasonable opposition broadly,² leaving one to wonder if other factors outweighed the risk of a retaliation claim in the decision to terminate Savignac.

The issue of broader concern for employers, however, is Savignac and Sheketoff’s challenge to Jones Day’s “generous” policy providing biological mothers eight weeks additional time off for recovery when there is no requirement by the employee to show an actual disability for this length of time. Savignac and Sheketoff allege that Jones Day’s calling the eight additional weeks “disability leave” is “just a label,” and that female employees can arrange for the full 18 weeks of paid leave before they give birth and know how long it will take them to recover from childbirth. They allege that Jones Day’s policy gives biological mothers “more time to take care of and bond with their babies than fathers receive.”[3]

In its response to the lawsuit on its website, Jones Day vigorously defended its parental leave policy, asserting that it:

is fully consistent with guidance of the Equal Employment Opportunity Commission. . . . Neither the law nor common sense requires [the Firm to require birth mothers to submit medical evidence proving that childbirth has had a physical impact on them sufficient to justify disability leave]. Jones Day’s adoptive leave policy, which is gender neutral, reflects the fact that adoptive parents face unique demands on their time and finances that differ from those faced by biological parents—such as extended foreign travel and adoption-related legal and administrative hurdles.⁴

EEOC Guidance provides that “employers should carefully distinguish between leave related to any physical limitations imposed by pregnancy or childbirth . . . and leave for purposes of bonding with a child and/or providing care for a child.” In an example, the EEOC Guidance describes as acceptable a policy that provides pregnant employees up to 10 weeks of paid pregnancy-related medical leave for pregnancy and childbirth as part of its short-term disability insurance and that also offers new parents, whether male or female, six weeks of parental leave. 

EEOC has rigorously supported equal parental leave for men. It sued Estée Lauder in 2017 over a policy that, separate from medical leave for biological mothers, provided new fathers less paid leave to bond with or care for a newborn than it provided new mothers. In a 2018 settlement, Estée Lauder agreed to provide 20 weeks of paid leave for child bonding. EEOC’s July 7, 2018, press release describing the settlement stated that for “biological mothers, these parental paid leave benefits begin after any period of medical leave occasioned by childbirth.”⁵

What is not clear is whether EEOC would view as acceptable a flat period of medical leave without any documented basis for the length of the leave, as set forth in the Jones Day policy. Is the impact of having such a “no questions asked” approach to discriminate against men? If the biological mother needs only four weeks to recover, does providing her four more weeks to bond and care for the child than a father discriminate on the basis of sex? The court may be called on to answer this question in Savignac and Sheketoff v. Jones Day.

In the meantime, parental leave is gaining in popularity as a recruiting tool and employers implementing such policies or administering existing policies are increasing in number. According to a recent Pew Research Center Survey, Americans generally support paid family leave.⁶ Access to this benefit, however, remains generally limited; unpaid family leave is much more widespread, mostly due to the Family and Medical Leave Act. California in 2004 was the first state to legislate paid family leave, joined later by New Jersey, Rhode Island, and New York. The Pew Study found that state government employees have greater access to paid family leave than private employer workers, and in private industry, the finance and insurance, information, and professional, scientific, and technical service sectors offer paid family leave more than employers in other sectors. 

In the professional services area, big law firms such as Jones Day have been leaders in offering paid family leave as they compete for a more diverse workforce and seek to attract millennials. Do challenges such as that by Savignac and Sheketoff threaten to undermine gains made in this area? The answer depends on your point of view, which is more complex than it seems. Consider the couple who desires that the biological mother give birth and return to work as soon as possible, deciding that the father take the full paid parental leave to care for the child. The father has 10 paid weeks under the Jones Day policy, while the mother, needing only four weeks to recover in her case, would be entitled to an additional four weeks for medical-related leave plus 10 weeks under the Jones Day policy. Would this mother not prefer for the father to have the full 14 weeks that she would have had if she was the primary caregiver? 

The benefits provided by Jones Day and other employers, while generous, pose questions that may indeed reflect stereotypical thinking – that the mother will be the primary caregiver and will welcome additional paid time for medical recovery that may not be actually needed. HR professionals should carefully examine the intent and impact of parental leave policies and ensure that treatment of mothers and fathers is as equal as possible.