Almost two decades ago, employers began adopting policies that provided paid parental leave to “primary caregivers” and “secondary caregivers.” The policies were an attempt to be more inclusive by providing leave benefits to non-birth parents while at the same time keeping to a minimum the overall amount of leave time employers had to provide. A typical primary/secondary parental leave policy gives an employee who provides most of an infant’s care a larger amount of paid leave, such as 12 weeks, and gives an employee who provides a lesser amount of an infant’s care a smaller amount of paid leave, such as two weeks.
Unfortunately, these policies are not good for employers or employees and are likely to violate sex discrimination laws. Better options exist.
What’s so wrong with primary/secondary caregiver parental leave policies?
1. Primary/secondary policies aren’t what employees want. Paid parental leave policies are important tools for employers to attract and retain top talent, regardless of gender. But the policies will not serve this purpose for the many employees today who share parenting equally and reject the idea that a child has only one primary caregiver.
Moreover, many of these parents value the ability to “tag team,” which lets one parent act as the primary caregiver for the duration of their leave and then lets the other parent assume that role immediately thereafter for the duration of their leave. This was particularly important to parents during the pandemic. A primary/secondary policy doesn’t permit this.
2. Primary/secondary policies can violate sex discrimination laws. Parental leave for birth parents often consists of both time to heal from childbirth and time to bond with the new child. The EEOC has said that although it is fine to provide healing time only to birth parents, providing a disparate amount of bonding leave to mothers and fathers is sex discrimination that violates Title VII. At least one court has ruled that refusing to let fathers to take longer paid parental leaves that are available to mothers discriminates against men on the basis of sex.
Paid parental leave policies that provide different amounts of bonding leave for “primary caregivers” and “secondary caregivers” do not circumvent the requirement of equal bonding leave where the policy or the employer creates conditions that favor women being deemed primary caregivers. Consider these real-world examples of sex discrimination:
- An employer required men, but not women, to submit certifications to prove primary caregiver status
- HR questioned a male employee’s request for primary caregiver leave, noting that everyone knows that fathers are secondary caregivers
- A policy defined “primary caregiver” as the parent who provides care for a baby immediately after birth, which frequently is a birth mother who is establishing lactation
Sex discrimination can also arise from how the policies operate in practice. If a policy leads to mostly women being deemed primary caregivers, it may be found to have an illegal disparate impact on men.
3. Primary/secondary policies undermine diversity efforts and reinforce sexist stereotypes. Parental leave policies that provide different lengths of leave for primary and secondary caregivers can reinforce sexism in companies’ cultures, making the advancement of women even more difficult. The distinctions assume that families should have one parent who is principally responsible for childcare, and because women have traditionally cared for children and men traditionally have not, this notion can reinforce traditional sex stereotypes. Any assumption that women will be primary caregivers can perpetuate the idea that women will have children and not be committed to their jobs, which often leads to women not getting the opportunities that men get. Relatedly, the distinctions perpetuate the idea that men are free of family responsibilities, which can affect the types of opportunities that they get. The idea that men are not primary caregivers has also led to some men being discouraged, subtly or overtly, from taking parental leave and to men experiencing backlash and retaliation when they do take leave.
What type of parental leave policy would be better?
A good paid parental leave policy will help employers manage their workforce, particularly when employers are having difficulty hiring and keeping employees. The pandemic put family needs in the spotlight like never before, and policies and benefits designed to support caregivers will not only give employers an edge but will help make employees more loyal, engaged, and productive. The cost of paid leave will be offset by the productivity benefits of being fully staffed and the savings of reduced attrition.
At a minimum, a good paid parental leave policy will provide a period of paid leave for a birth parent to recover (typically six to eight weeks) and an additional period of paid leave that is available to birth and non-birth parents alike, regardless of gender, to use to bond with their new child. (Be sure to check your state and local laws regarding pregnancy accommodation; some laws affect the amount of childbirth leave that must be provided.) Six to sixteen weeks of paid bonding time will allow employees to start their families off on a strong and healthy path. Employees may be entitled to additional unpaid bonding time under state or federal family leave laws.
An even better paid leave policy will apply to all caregivers, not just new parents. An increasing number of employees are caring for seniors and adult family members with disabilities. They also may need to take extended leave.
Many employers support caregiving employees with additional policies, such as parental leave support, gradual return to work, flexible work, remote work, backup care services, and resource information.
