When it comes to maternity and paternity leave, mothers and fathers are not always treated equally. And according to labor attorneys consulted by the Society for Human Resource Management (SHRM), that is perfectly legal.
Yahoo! Inc. recently made headlines when it was revealed that the search engine and Internet services company now provides twice as much paid maternity leave (16 weeks) as it does paid paternity leave (8 weeks). While this policy may come as a surprise to some and be controversial to others, it is lawful because the additional 8 weeks of maternity leave can be granted due to physical incapacitation and recovery from pregnancy, childbirth or any other related conditions.
Despite popular misconceptions, the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA) do not require an employer provide paid maternity or paternity leave. However, a new mother will typically receive 8 weeks of paid leave due to her being “disabled” under a short-term disability policy. Therefore, if an employer chooses to voluntarily provide 8 weeks of paid maternity and paternity leave, and the mother receives an additional 8 weeks of paid short-term disability leave, it is legal and not discriminatory.
It is crucial that employers who provide paid leave with this discrepancy “need to distinguish between caregiver/bonding leave, which should apply equally to eligible men and women, and pregnancy-related leave, which can provide a nondiscriminatory basis to pay eligible women more,” according to Anne Larson, an attorney at Ogletree Deakins in Chicago. It is also crucial that smaller businesses and organizations prepare for the financial and workforce burdens that result from employees taking extended paid leave. Many employers do not offer paid or unpaid leave beyond 12 weeks and do not offer paternity leave of any kind, although some states like California require paid family leave.