Pension & Benefits News Law firm must answer claim its family leave policy discriminates against men
Tuesday, October 13, 2020

Law firm must answer claim its family leave policy discriminates against men

By Pension and Benefits Editorial Staff

Although two former Jones Day attorneys brought several claims under state and federal law against their former employer, the "heart of the dispute," observed a federal court in the District of Columbia, was the legality of the employer’s leave policies for new parents. The attorneys contended that the policy, which provided fewer weeks of leave for a father than for a mother following the birth of a biological child, violated Title VII, the Equal Pay Act, and the DCHRA, and the court, denying in part the firm’s motion to dismiss, found they stated a claim.

Demand for equal leave. In 2018, the attorneys, who were married associates working at Jones Day in its Issues & Appeals group in the Washington, D.C. office, learned they would be having a child. In that same year one of the spouses, the wife, took a job elsewhere. Because both she and her husband, who intended to remain at Jones Day, planned to care for their child equally, she emailed the head of their group to ask that the firm treat her spouse equally under the firm’s policy and grant him 18 weeks paid leave, in addition to the six weeks unpaid leave allowed.

She asserted that the eight-week disability leave that was given to new biological mothers was not dependent upon whether they were actually disabled. She further noted that the firm’s policies also gave adoptive parents 18 paid weeks (24 in total with unpaid leave), which contrasted with the 10 paid weeks received by biological fathers (16 with unpaid leave). HR denied her request.

Termination and lawsuit. The husband then sent emails to HR and the group head, stating that he was aware of their exchange with his spouse and that he opposed their practice, which he contended was illegal under Title VII. HR responded, providing legal citations upon which it relied in rejecting the request. After their son was born, the attorneys again emailed HR and their group head, disputing those sources and demanding that the husband receive equal treatment. They also noted other concerns regarding sex discrimination, including issues relating to the wife’s pay before she left. No one responded and three days later, the husband was fired.

They brought administrative charges with the EEOC and later filed suit, alleging violations of Title VII, the Equal Pay Act, the D.C. Human Rights Act, the FLSA, the FMLA, and the DCFMLA. The law firm filed a motion to dismiss.

Leave policy claims proceed. In this lawsuit, the court explained, "the heart of the dispute" in many respects was the legality of the firm’s leave policies for new parents and those claims would advance. According to the attorneys, the policies provided eight more weeks of paid leave for biological mothers than for biological fathers and, therefore, violated Title VII, the EPA, and the DCHRA. In the firm’s view, biological mothers and fathers were equally entitled to 10 weeks of parental leave, to the extent they were primary caregivers, and the additional eight-week period for women who gave birth was disability leave, even though paperwork was not required.

Contending that the policy did not violate the law, the firm pointed to an Eighth Circuit decision, Johnson v. University of Iowa, to support its argument that granting biological mothers disability leave after the birth of a child did not relate to gender. For their part, the attorneys pointed to a Third Circuit decision, Schafer v. Board of Public Education, in which that court rejected the notion that such preferential treatment is allowable without a showing of continuing disability relating to either the pregnancy or birth.

Disability policy. Noting that the language of the disability policy upon which the firm was attempting to "hang their hat" was capable of different interpretations, the court found it could not resolve the issue on the pleadings. The policy states that, "[u]nless the [f]irm is notified otherwise, it will assume that a lawyer’s medical provider has certified an eight-week, post-partum disability period for routine childbirth (including Caesarean-section births)."

On the one hand, it was possible to conclude from the language that the firm would shorten or lengthen the presumptive disability period depending on the information provided. On the other, it was possible to conclude that all birth mothers receive a minimum of eight weeks and possibly more if the employer is notified that a longer period is needed. Without factual development, the court explained, it could not determine which side had the better view.

Need discovery. Moreover, even beyond those difficulties, the court was unable to resolve on the pleadings the "central question raised," i.e. whether some portion of the eight-week leave was "untethered to actual disabilities?" Indeed, the attorneys had noted that the firm had attempted "a last-minute shift in" its defense by arguing for the first time in its reply brief that its "substantive rule . . . is that a mother is entitled to leave only while she is actually disabled from performing her job." This tethering of the period to actual disability was a key issue, the court explained, noting that the decisions relied upon by the parties in their arguments were summary judgment decisions "for good reason." Without allowing the parties an opportunity for discovery and submission of evidence, the court could not determine "whether the policy was adopted and operates, in whole or in part, as a substitute for an extended period of parental leave for birth mothers."

Most other claims proceed. Other claims by the attorneys also advanced, including claims of retaliation under the DCFMLA, and a sex discrimination claim by the wife. Her EPA claim, based on a review/raise period preceding her departure, however, would have to be repleaded to adequately allege that she was "doing substantially equal work" to her comparators. The husband’s FMLA interference claim was dismissed.

SOURCE: Savignac v. Jones Day, (D.D.C.), No. 19-2443, September 4, 2020.

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