Ruth Bader Ginsburg, Max Scherzer, a $5 million settlement, and how they all relate to workplace parental leave policies

Washington Nationals’ pitching ace Max Scherzer recently took parental leave and helped shine a light on a hot employment topic: ensuring that employers’ parental leave policies are fair and gender-neutral.

This issue also gained attention in May 2019 when JPMorgan Chase, one of the world’s largest banks, reached a $5 million settlement about the bank’s parental leave program. As part of the settlement, the bank will make payments to a group of male employees who were discouraged from taking 16 weeks paid parental leave to care for a new child. The settlement also directs JPMorgan Chase to implement a parental leave program that is fair and gender-neutral. JPMorgan Chase denied the allegations.

At first glance, JPMorgan Chase’s parental leave program seemed gender-neutral. It offered 16 weeks of paid leave for “primary caregivers” and 2 weeks for “secondary caregivers.” The bank, however, allegedly applied the policy differently when a male employee versus a female employee requested leave. That is, female employees requesting parental leave were presumed to be the primary caregivers, while male employees were presumed to be the secondary caregivers. The plaintiffs claimed that, for a male employee to receive parental leave as a primary caregiver, he had to show that his spouse or domestic partner had returned to work, or that he was the spouse or partner of a mother who was medically incapable of caring for the child. Female employees who had given birth themselves were not subject to this requirement.

The named plaintiff in the settlement, Derek Rotondo, requested 16 weeks of parental leave as a “primary caregiver” after the birth of his second child. Human resources, according to Rotondo, informed him that a father requesting parental leave would only be considered a “primary caregiver” if he could show that the mother had to return to work before the 16 weeks elapsed, or that she was “medically incapable” of caregiving. Rotondo could not demonstrate either option, and he received only two weeks of parental leave.

Rotondo then filed a charge of discrimination with the Equal Employment Opportunity Commission challenging JPMorgan Chase’s practice of denying primary caregiver leave to fathers. He also filed a class action complaint on behalf of himself and similarly situated individuals. Rotondo received 16 weeks parental leave, and the five thousand other male employees who were denied parental leave as a “primary caregiver” will be compensated from a fund created by the $5 million settlement.

This is not the first time that a step towards gender equality was taken in a case involving male plaintiffs who sought caregiver benefits, only to find out that the benefits are not available to them because they are men. Rotondo was represented by lawyers from the A.C.L.U.’s Women’s Rights Project, which was founded by now-Justice Ruth Bader Ginsburg in the early 1970’s. Ginsburg was an A.C.L.U. lawyer when she argued Moritz v. Comm’r of the Internal Revenue System before the U.S. Court of Appeals for the Tenth Circuit.

Moritz was the first federal court case to hold that discrimination on the basis of sex is unconstitutional. In that case, Moritz claimed a tax deduction for the cost of a caregiver for his mother, but the IRS denied it because the agency only allowed the deduction to be claimed by women and formerly married men. Ginsburg argued that no rational basis in the law exists for treating men and women differently. Moreover, she argued that the proper remedy was to allow men to claim the deduction as well, instead of eliminating the deduction for everyone.

Of course, in some families one parent is the primary caregiver to the children and one parent, for whatever reason, needs to return to work more quickly than their partner. The larger problem (for companies and their employees) is where the employer presumes a connection between an individual’s gender and that individual’s role at home. Doing so presumptively differentiates among employees and their parental leave needs based on sex. The settlement between JPMorgan Chase and their employees demonstrates that companies do so at their own risk.

As Supreme Court Justice Ruth Bader Ginsburg noted, “[w]omen will have achieved true equality when men share with them the responsibility of bringing up the next generation.”

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