In 2013, Estee Lauder implemented a new parental leave policy, which allowed for six weeks of paid leave for moms and two weeks of paid leave for dads. The reasoning is that mom is the primary caregiver and dad is a backup. They did allow an exception in the case of a man who hired a surrogate--he would be allowed the six weeks of paid leave.

The EEOC filed suit against Estee Lauder in behalf of Christopher Sullivan, a male employee who requested six weeks of paid leave as the primary caregiver for his child. Estee Lauder said no, as he wasn't the primary parent.

It's pretty easy to see that there is a clear gender difference here. Granted, there is always a gender difference in childbirth because mom has to do the physical work of getting the baby here, but there is a difference between a disability leave (you're legally considered disabled for a minimum of six weeks after a vaginal birth and eight weeks after a c-section) and leave for a "primary" caregiver.

JPMorgan is also in the midst of a lawsuit on the very same topic--gender discrimination with parental leave.JPMorgan said dads could only be the primary caregiver if they could prove that mom was unable to care for the baby or had returned to work.

In both of these companies, the policy neglects to take into consideration that not every family operates in exactly the same way. Some parents split childcare and responsibilities 50/50. In some, Mom takes the bulk of the work, and in others, Dad does. In lots of families, the "primary parent" changes as the family's needs change.

If you want to avoid being next on the EEOCs list, consider the following when drafting your parental leave policy.

  • Men and women can both be the primary parent. While you can certainly say only one parent can fill that role if both parents work for your company, you should otherwise take the employee's word for it.
  • Legally, you have to allow up to 12 weeks of unpaid leave for any parent to take care of new baby, a new foster child, or newly adopted older child. Don't ever assume that the dad will not be the one to take this leave that is guaranteed under FMLA. Again, if both parents work for you, you can limit this to 12 weeks total.
  • Don't limit leave to married couples, or heterosexual couples. Babies need care.
  • Take a page out of Facebook's manual, and don't require employees to use parental leave in one lump.
  • Double check with your attorney before implementing the policy. Employment law is complex and varies from state to state. It's always cheaper to pay an attorney before than it is to pay an attorney to defend you.