CMCP Diversity Matters - May/June 2018

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California’s PDL statute, however, is designed to offer job protection for a woman suffering from a physical disability related to her pregnancy or childbirth that prevents her from working. See Cal. Gov’t Code § 12945 (providing protections for an employee “disabled by pregnancy, childbirth, or a related medical condition”). PDL, therefore, is available only to women who are or who have been pregnant. Although the leave can last up to four months if serious complications cause prolonged disability, an uncomplicated pregnancy and childbirth will typically entitle the employee to six weeks for a vaginal childbirth and eight weeks for a Caesarian section. Because PDL is designed to cover disability and not childcare, however, it must be made available to all women who have experienced disability related to pregnancy and childbirth, even if the woman is serving as a surrogate for other intended parents or plans to immediately place her child for adoption. (Disability related to a miscarriage or stillbirth would also be covered.) A birth mother or surrogate who immediately relinquishes her rights to the child, however, would not be entitled to bonding or childcare leave under the CFRA or PFL. FMLA, by contrast, is designed to cover both bonding leave and serious health conditions related to pregnancy and childbirth. See 29 U.S.C. § 2612(a)(1) (providing job protection for workers who take leave “in order to care for such son or daughter” or because of a “serious health condition that makes the employee unable to perform the functions of [his or her] position”). All new parents are therefore entitled to the FMLA bonding leave. The implementing regulations for FMLA provide that the “right to take leave under FMLA applies equally to male and female employees.” 29 CFR § 825.112(b). And all women who encounter serious health conditions related to their pregnancy—even if they are not intending to parent the child—are entitled to FMLA leave for the duration of their serious health condition. RECOMMENDATIONS Many employers offer parental leave beyond the legally-required minimum. Must this additional leave be made available to all new parents equally? The answer again depends on the purpose served by the leave. Guidelines from the Equal Employment Opportunity Commission (EEOC) provide that parental leave “for purposes of bonding with a child and/or providing care for a child” must be provided “to similarly situated men and women on the same terms.” Leave “related to pregnancy, childbirth, or related medical conditions,” however, “can be limited to women affected by those conditions.” Thus, the only permissible distinction an employer can draw in administering its leave policy is between people who have been pregnant and people who have not. Employers may not offer leave disparately on the basis of other factors, such as offering more generous leave to mothers (including adoptive mothers) than they offer to fathers. Indeed, in August of 2017, the EEOC sued Estée Lauder for sex discrimination based on the company’s policy of providing six weeks of paid 24 | California Minority Counsel Program
parental bonding leave to mothers (in addition to the company’s pregnancy disability leave), but only two weeks of paid parental bonding leave to fathers. See EEOC v. Estee Lauder Companies, Inc., Case No. 2:17-cv-03897-JP (E.D. Pa.). In February 2018, the parties to that suit announced that they had reached a settlement in principle. Thus, if an employer wishes to craft a leave policy that distinguishes between women who have given birth and all others, the employer should be careful to delineate in its written policies what portion of its leave is designed to cover a pregnancy-related disability, what portion is designed for childcare and bonding, and whether these two types of leave run concurrently or simultaneously. Employers should be wary, however, about trying to offer generous leave and categorizing all of it (or an outsized portion of it) as pregnancy-related disability leave. Given that California’s PDL laws generally provide for six weeks of disability leave for an uncomplicated vaginal birth and eight weeks of disability leave for a Caesarian section, an employer’s attempt to offer, for example, 16 weeks of “disability” leave for an uncomplicated vaginal birth might be susceptible to the argument that the employer is really providing bonding leave, but is offering such bonding leave only to mothers giving birth. Employers are, of course, free to offer leave on equal terms to everyone affected by pregnancy and childbirth, including all new parents. Leave that is designed to cover both pregnancy-related disability and bonding time and that is offered on equal terms to all new parents—including fathers and mothers, birthing and nonbirthing parents, and adoptive parents and biological parents alike—may serve the dual purpose of helping the employer attract top talent, while avoiding potential legal pitfalls at the same time. Arwen is a highly successful federal and state court litigator, recently winning a First Amendment victory that garnered national attention in the Los Angeles County Seal case. Arwen focuses on complex commercial matters, probate litigation, employment and professional liability disputes and intellectual property law. Noah has an impressive breadth of litigation experience in both federal and state court. His practice includes representing both plaintiffs and defendants in intellectual property, employment, and entertainment litigation, as well as business and partnership disputes. He has handled complex regulatory and privilege issues and helped obtain terminating sanctions against an adversary for litigation misconduct. 1 San Francisco offers additional benefits to employees in its jurisdiction, which are not discussed here. 2 The FMLA also permits employees to take leave because of a serious health condition that makes the employee unable to perform the functions of his or her job, or to care for a spouse, child, or parent who has a serious health condition. Serious health conditions can be, but need not be, pregnancy-related. 3 See Title 2, Cal. Code of Reg. § 11096. 4 PFL can also be taken to care for a seriously ill family member or for the employee’s own serious health condition. May/June 2018 | 25
Page 2 and 3: New Minority Partners at CMCP Membe
Page 4 and 5: Letter from the Executive Director
Page 6 and 7: practical tools and concrete takeaw
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Page 10 and 11: direct patient contact. For example
Page 12 and 13: - which affect 17 different types o
Page 14 and 15: DEVELOPMENT OF WORKPLACE VIOLENCE P
Page 16 and 17: GDPR: THE TOOTHPASTE IS OUT OF THE
Page 18 and 19: degree of risk posed to the rights
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Page 24 and 25: FMLA; in fact, the CFRA regulations
Page 28 and 29: CMCP Event Highlights Kaiser CLE Ma
Page 30 and 31: Leaders Create More Leaders - Leadi
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Page 34 and 35: Diversity Calendar The CMCP Diversi
Page 36 and 37: NEWSLETTER COMMITTEE Thank you to o
Page 38 and 39: SWETA H. PATEL Partner Klein, Hocke
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CMCP Diversity Matters - May/June 2018

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