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.
(In Washington state, a law that takes effect next year provides for 12 weeks of paid leave for each parent after a child is born, adopted or placed with a family.)
In 2015, CNN reached a settlement with a correspondent who had complained to the Equal Employment Opportunity Commission that the company’s policy of granting biological fathers two weeks of paid leave — compared with 10 weeks for mothers — was discriminatory. CNN changed its policy to make it more equitable.
In the case against Estée Lauder, the commission said the company had similarly discriminated against fathers of newborns. The agency put the number of affected men at around 200; the company agreed to change its policies.
Unlike the policy at CNN, the JPMorgan Chase policy appeared to be gender-neutral on its face, offering 16 weeks of paid leave to primary caregivers and two weeks to other caregivers.
But the lead plaintiff in the case, an Ohio-based investigator at the company named Derek Rotondo, contended that the company made it difficult for biological fathers to qualify as primary caregivers.
When Rotondo consulted with the company’s human resources department in May 2017, a few weeks before the birth of his second child, he was told in writing that “per our policy, birth mothers are what we consider as the primary caregivers,” according to his legal filings.
There were two exceptions, the response said: if his spouse returned to work before the end of 16 weeks, in which case he could use the balance of the time, or if the mother was medically unable to provide child care.
In an interview, Rotondo said he had assumed he would be eligible to serve as his child’s primary caregiver. He contacted a hotline at the Center for WorkLife Law at the University of California Hastings College of the Law, which put him in touch with lawyers at the American Civil Liberties Union.
According to Cynthia Thomas Calvert, a senior adviser at the Center for WorkLife Law, Rotondo’s experience was not unheard-of. Policies assigning different lengths of leave to primary and secondary caregivers began as “an attempt by some employers to do the right thing and to not view caregiving in the roles of motherhood and fatherhood,” she said. The policies were typically part of an effort to accommodate employees in same-sex relationships.
“But it quickly took on a different meaning,” Calvert added. “It became code for ‘mother’ and ‘father.’”
Shortly after Rotondo filed a charge with the Equal Employment Opportunity Commission, the company granted him the full 16-week leave. By the end of 2017, it changed its policy so that other men could easily claim the full 16 weeks as well. JPMorgan Chase said it hadn’t altered its policy but had merely clarified it.
But Rotondo’s lawyers kept the case alive in order to reach a settlement that would both provide financial compensation for fathers at the company who would otherwise have taken the longer leave and ensure that the company applied the policy equitably going forward.
“We had input into the training module” the company is adopting for those who administer its parental leave policies, said Galen Sherwin of the ACLU, another one of Rotondo’s lawyers. “We wanted to make sure that they’re not sending a message inadvertently that dads are discouraged from taking caregiver leave.”
Reid Broda, the company’s associate general counsel, said in a statement, “We are pleased to have reached an agreement in this matter and look forward to more effectively communicating the policy so that all men and women employees are aware of their benefits.”
Some companies offer long leaves to all new parents — Hewlett Packard Enterprise recently announced that new mothers and fathers would both receive at least six months of paid leave. Others continue to offer substantially longer leaves to primary caregivers.
Since 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.
Sherwin said that the ACLU’s interest in cases like Rotondo’s dated back to the early work of Justice Ruth Bader Ginsburg on the issue. 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.
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% of respondents offered paid maternity leave, up from 26% two years earlier. Just under 30% offered paid paternity leave, up from 21% two years earlier.
Among employers offering paternity leave, however, there appear to be vast differences in the numbers of fathers taking advantage of the policies.
Calvert, who also advises companies on their leave policies, attributed that difference largely to the extent to which employers make fathers of newborns feel comfortable taking time off. She said that best practices include encouraging men to take their leave by, for example, circulating accounts of very senior men who did so, or men who received significant promotions after a leave.
Rotondo, who took two weeks off after his wife’s first pregnancy, said the impact of his 16-week paternity leave after the birth of his second child was “huge.” He was able to take charge of settling the baby down late at night, sparing his wife from sleep deprivation. He was able to bond with his older son, who was adjusting to becoming a brother.
He even managed to pioneer a much-needed hygienic practice. “I figured out a system to change diapers when he’s standing up,” Rotondo said. “If he’s busy and running around, I can get it done.”