The American Civil Liberties Union is accusing JPMorgan Chase & Co. of violating the Civil Rights Act by discriminating against fathers when they ask for parental leave.
The ACLU filed its complaint Thursday with the Equal Employment Opportunity Commission. If the EEOC finds merit in the case and the parties are unwilling to settle, it could give the green light to bring a federal lawsuit against the bank.
“For whatever reason, companies are not complying with the law, and we do hope that this case serves as a wake-up call,” said ACLU attorney Galen Sherwin.
JPMorgan said it received the complaint and is reviewing it.
The plaintiff in the ACLU’s case is Derek Rotondo, an Ohio-based employee who says that before the birth of his second child, he applied for the 16 weeks of parental leave JPMorgan Chase provides if an employee is the "primary caregiver" of a new child. If the employee is the "non-primary" caregiver, he gets two weeks.
The bank touted those 16 weeks in its annual report to be shareholders last year. "Becoming a parent is both joyful and stressful so we want to do everything we can to support our employees through this life-changing event," Chief Executive Officer Jamie Dimon said in the report.
|‘Medically incapable’
When Rotondo, 32, put in for leave in May, JPMorgan informed him by phone and in writing that it starts from the presumption that the primary caregiver is a child’s birth mother, according to the complaint.
For Rotondo to get that designation, he’d have to show that his wife was returning to work within 16 weeks of giving birth or that she was “medically incapable” of taking care of the baby.
Because his wife, who works as a teacher, was healthy and had the summer off, Rotondo couldn’t qualify as primary caregiver. “I consider myself really a dad first -- everything else comes second,” he said in an interview. “This time is very important for me to spend with him to get to know each other.”
By granting caregiver leave automatically to women but not to men, JP Morgan is violating the 1964 Civil Rights Act, which bans sex discrimination in employment, Rotondo’s lawyers say.
They cite recent guidance from the EEOC that distinguishes between post-partum medical leave and parental leave to bond with and care for a new child. Medical leave can be “limited to women affected” by childbirth or related conditions, the EEOC said in 2015.
“However, parental leave must be provided to similarly situated men and women on the same terms,” according to the agency.
|Developing law
“We recognize that both women and men would like to be involved in the care of their children early on, and we’re expecting employers to think carefully about whether they are in fact discriminating against men,” Chai Feldblum, an EEOC commissioner, said.
Sex discrimination in parental leave policies is an area where the case law is still developing, she said. “We’re just coming into an era where fathers are demanding significant parental leave.”
JPMorgan’s policy “relies upon and enforces a sex-based stereotype that women are and should be caretakers of children,” Rotondo’s complaint says, whereas “men are not and should not be caretakers and instead do and should return to work shortly after the birth of a child.”
“JPMorgan Chase is explicitly giving care-giving leave to women on different terms than men," said attorney Peter Romer-Friedman of Outten & Golden, who brought the case along with the national ACLU and its Ohio branch.
In 2013, a client of Romer-Friedman’s filed an EEOC complaint against CNN, which he said offered 10 weeks of paid leave to mothers who had given birth, but (other than in cases of adoption or surrogacy) only two weeks to new fathers.
The client and the network reached a settlement in 2015, and the company now offers six weeks of paid postpartum medical leave to mothers as well as six weeks care-giving leave to new parents regardless of gender.
|‘Critical mass’
It’s too soon to say whether courts will embrace the EEOC’s view of what constitutes a discriminatory parental leave policy, said Julie Yap, a Sacramento-based partner at law firm Seyfarth Shaw who defends employers in discrimination cases.
“Until there’s a critical mass of cases that result in judicial opinions, I think it’s anyone’s guess whether we’ll get a consensus from circuit courts or the Supreme Court,” said Yap. In the meantime, she said, “there’s risk in straying” from what the EEOC has set forth.
The EEOC, meanwhile, is about to undergo a makeover. President Donald Trump is slated to nominate a new general counsel for the agency, and by July enough of its Democratic commissioners’ terms will have expired for him to install a Republican majority. Industry groups hope a new GOP makeup will bring changes to the agency’s approach and to some of its past stances.
“It’s impossible to predict what the position of the EEOC will be once there is a majority of Republican commissioners,” said Feldblum, a Democratic appointee. “I don’t see any indication so far that on this issue there is a Republican-Democratic divide, but we’ll have to wait and see.”
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