Are Parental Leave Policies That Designate "Primary Caregivers" Discriminatory?

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It's no secret that access to proper maternity leave in the United States is still seriously lacking, and it's a major issue that honestly shouldn't be up for debate. But even with paid leave for moms, the country would still be majorly behind the curve. Despite research stressing the importance of parental leave for dads and partners, the American Civil Liberties Union has found that many new parents are unable to access parental leave, even if their employers technically offer it. In a complaint filed Thursday, the ACLU said parental leave policies that designate primary caregivers are discriminatory, and that they unfairly exclude dads who would otherwise choose to take them.

According to NBC News, the ACLU along with employment law firm Outten & Golden filed a complaint with the Equal Employment Opportunity Commission on behalf of Derek Rotondo, an Ohio-based fraud investigator at a JPMorgan Chase & Company. The married dad-of-two said that after the birth of his second child earlier this month, he intended to take the 16 weeks of parental leave that Rotondo assumed he would be eligible for as a JPMorgan Chase employee so that he could be home with his newborn. But after applying, Rotondo said he was told that he was considered a "non-primary" parent, and would only be eligible for two weeks of parental leave. (JPMorgan Chase did not immediately return Romper's request for comment.)

When Rotondo first requested leave from his employer in May, he was told, according to Bloomberg, that the company's parental leave policy presumes that the "primary parent" is the child's birth mother. In order for Rotondo to be eligible for 16 weeks of parental leave, he'd have to prove that his wife was either returning to work within that time, or that she was "medically incapable" of caring for their baby. But neither was true — Rotondo's wife is a teacher who would be off for the summer anyway even if she wanted to return to work, and she's also, thankfully, in good health.

As a result, Rotondo said his request for the 16 weeks of leave was denied, despite the fact that, according to Bloomberg, the company actually highlighted it's 16-week parental leave policy in its 2015 annual report to shareholders as an example of its commitment to "developing and supporting" JPMorgan Chase employees. In the report, Chief Executive Officer Jamie Dimon outlined the company's decision to "[extend] primary caregiver parental leave to 16 weeks, up from 12," and said,

But Rotondo and the ACLU have said that, actually, that seemingly-supportive policy actually only really applies to women — and that it's ultimately unfair to everyone by assuming that women are, by default, more involved in caregiving. According to NBC News, ACLU senior staff attorney Galen Sherwin said that the company's decision to distinguish a "primary" parent was the wrong one:

In a post on the ACLU's website, Rotondo wrote about his experience attempting to access parental leave, and explained what he would ultimately be missing out of by only being able to take two weeks leave after his son's birth. But beyond his own desire to spend time with his family, the benefits of men taking parental leave are actually far-reaching. According to a report published this month by PL+US, fathers who take paternity leave are more likely to report higher levels of parental satisfaction, and are also more likely to be involved in childcare and household duties — even after they've returned to work.

There are also significant benefits for their female partners, too: a 2014 report by the Boston College Center for Work and Family found that when men take paternity leave following the birth of a child, women are more likely to have higher self-reported happiness levels three months postpartum. And a study in Sweden (where almost 90 percent of fathers take paternity leave, according to The Economist), found that mothers' earnings actually increase by more than 6 percent for each month of parental leave her partner takes.

Parental leave also has huge implications for the caregiving relationship between fathers and their children: according to the Boston College report, when fathers do not have the opportunity to be engaged in caregiving in the early months of their children's lives, they miss out on developing the same level of confidence caring for them as mothers often develop. What's more is that when that gap forms in the early days, it is unlikely to change later on. Yet the vast majority of fathers miss out: studies from the Boston College Center for Work and Family found that 76 percent of fathers went back to work within one week or less of their children's births, while 96 percent were back after two weeks or less.  

Part of the reason, to be sure, is that the stigma surrounding men taking parental leave is still strong. In fact, even in Sweden, the idea wasn't popular at first — according to The Economist, in the first year that universal gender-neutral paid parental-leave was introduced, men took only 0.5 percent of the leave that was available to them.

But even among dads who want to take time off to be with their kids, it's not often an option. According to PL+US, in a survey of 44 of the largest employers in the United States offering paid parental leave, only 10 of them provided an equal amount of leave to all new parents. Seven companies offered parental leave to dads, but more than eight weeks less than what they offered moms, while another eight companies didn't offer any family leave to dads at all.

Given that far too many parents in the United States don't get much, or any parental leave at all, it might seem like fighting for 16 weeks for dads is excessive. But beyond simply being unfair, a policy that designates a "primary caregiver" also ignores the very real and important benefits that gender-neutral parental leave offers families — not to mention the negative implications when they don't.

It's important, of course, that maternity leave in the United States improves, and soon. But parental leave is an issue that affects all parents — moms, dads, adoptive parents, and same-sex parents as well, all of whom have the same need to be home to care for their children after they are born.