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Maternity and parental leave policies: To top up, or to tap out? That is the question…

parental leave

New York-based bank JP Morgan Chase has recently been getting a lot of attention in the media after paying a hefty 5 million dollars to settle charges that their parental leave policy was discriminatory towards their male employees. It is believed that the settlement will impact up to 5,000 fathers who were denied parental leave benefits.

Independent Minds reported in an article that this payout ends a class action lawsuit that began in 2017 when employee Derek Rotondo filed a claim after being denied the company’s 16 weeks of paid parental leave offered to “primary caretakers”. The bank turned down Rotondo’s request on the basis that he failed to prove to their satisfaction that his wife, a schoolteacher who had the summer off, was unable to stay home and care for their child in his stead. Instead, the bank deemed Rotondo to be the “secondary caregiver” and entitled to 2 weeks of leave only. However, once Rotondo filed his claim, the bank quickly had a change of heart and reversed its position.

Despite the settlement, the company has affirmed they will continue to offer different amounts of leave to primary and non-primary caregivers, though the policy will be applied in a gender-neutral way.

In a different part of the world, the UK Court of Appeal ruled together on two cases in which male employees alleged that their employer’s parental leave policy (which provided employees with their statutory leave only) treated its workers differently on the basis of their sex by offering women, and only women, enhanced maternity benefits in excess of their statutory minimum entitlements. The ruling of the Court of Appeal is clear in its message that employers who provide enhanced maternity pay to their female employees exclusively will not be liable for a discrimination claim. The Court’s basis for this reasoning is that there is a distinction between maternity leave and shared parental leave. Unlike paternity or parental leave, maternity leave is recognized as serving a number of purposes other than childcare – such as recovery from childbirth, breastfeeding, etc. The court held that the situation of fathers and birth mothers are materially and physiologically different, therefore warranting different treatment.

Let’s be clear on what discrimination means

The above-mentioned examples beg the question: what does discrimination really mean? It’s a word that often gets thrown around, but does every case of differential treatment really amount to discrimination?

Blacks law dictionary defines discrimination as: “a term used to deny someone the equal protection of the laws and to treat all people the same”.

Discrimination in the workplace occurs when, despite all things being equal between employees, they are treated differently.

The key to the concept is the “all things being equal” part of the above. In the case of both UK employers mentioned above, the policies regarding parental leave and maternity leave made a distinction between male and female employees. However, the non-uniform application of these policies after the birth of a child was justified by the material differences in birthmothers’ situation in comparison to their male parent colleagues. Although men and women are certainly equal in their rights, the realities of pregnancy and childbirth exclusively affect women. In contrast, in JP Morgan Chase’s case, the differences in the policy’s application were based on stereotypical gender roles in applying the same benefit – the “primary caregiver benefit”.

What about in Ontario?

In Ontario, the Human Rights Code (the “Code”) aims to protect employees from discrimination in the workplace, while workers subject to federal jurisdiction are protected by human rights legislation in accordance with the Canadian Human Rights Act (“CHRA”), as well as the Employment Equity Act (“EAA”). The Code and the CHRA collectively outline a number of prohibited grounds for discrimination in employment, including age, colour, disability, marital status, religion, sex, etc.

The Ontario Human Rights Commission has stated that providing special maternity benefits to birth mothers is not considered discriminatory; employers are allowed to give top-ups to birth mothers, so long as the allocation of these benefits is not based on stereotypical gender roles.

The Ontario Human Rights Commission has stated that:

“ [t]he courts have recognized that pregnancy and childbirth place unique demands on women. Providing special maternity benefits to  pregnant women that are not available to other parents has been upheld by the courts as non-discriminatory, insofar as these benefits exist to recognize the unique physical and psychological needs and demands on pregnant women, including the physical changes and risks associated with pregnancy; the profound physical demands of childbirth; the recovery requirements of the post-partum period; and the demands associated with breastfeeding. However, leave programs or benefit policies that are based on stereotypical gender roles or assumptions based on family status will be subject to human rights challenges.”

The above statement reflects the Ontario Court of Appeal’s decision in Schafer v Canada, which states that “…compensating biological mothers only cannot constitute discrimination because only biological mothers undergo the physiological demands of pregnancy and childbirth”.

PH takeaways

  • Employer obligations – In Canada, maternity and parental leave offered through Employment Insurance and job-protected leave under provincial employment law statutes are required standard practice. That said, employers are under no obligation to offer top-ups or any other supplemental leave benefits to their employees. However, if they choose to do so, they must proceed with caution and ensure that those benefits are offered equally to all employees who are in the same legally-protected situation. Failure to do so may result in potential discrimination claims.
  • Policy review – Employers should evaluate their policies and ensure they are not providing a different benefit to someone on the basis of one of the protected grounds under the Code or the CHRA. It is also recommended that employers clearly define their maternity leave policy, and the purpose of that leave (in part, to allow for the mother’s recovery from childbirth) as compared to parental leave.
  • Employee morale – Practically speaking, employees who do not give birth, may feel they are being discriminated against (even if the reality is they are not), so employers who implement only maternity leave top-ups should consider the impact this may have on employee morale.

By Patrizia Piccolo (with the assistance of Sabrina Morcos and Cindy Ingram)

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Piccolo Heath LLP

Prominent Canadian lawyers Patrizia Piccolo and Jennifer Heath have come together as Piccolo Heath LLP, Canada’s newest employment law firm. With more than 30 years combined expertise, the firm was founded with the purpose of delivering outstanding legal counsel and dynamic, client-focused service. Piccolo Heath LLP is focused on guiding clients through the legal landscape to determine the best solutions to their unique issues. The firm is well-versed in current employment-related case law and statutes, but is also highly sensitive to the practical impact of the law on both employers and employees. Read more.
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