Proud father holding his baby. Photo: Flamingo Images/Shutterstock.com

The reverse discrimination suit targeting Jones Day’s parental leave policy filed earlier this week should be an eye-opener to the rest of the legal industry, even as law firms continue to tout expanded benefits for both mothers and fathers.

The married pair of former associates who sued Jones Day on Tuesday asserted that the firm’s policy of offering mothers 18 weeks of paid leave but providing only 10 weeks to fathers who serve as primary caregivers imposes and reinforces harmful stereotypes and archaic gender roles.

This policy of providing 10 paid weeks for fathers might appear generous in the wider context of only 17% of American workers, male or female, having access to paid family leave. (A 2016 study found the average paid leave available to fathers who received the benefit was slightly over 11 weeks.)

But if it used disability leave to automatically boost mothers’ entitlement to 18 weeks, Jones Day may have opened a can of worms.

“It’s crucially important to distinguish parental leave granted to allow parents to bond with and care for their new child from disability leave,” University of Virginia School of Law professor J.H. “Rip” Verkerke said in an email. “In my judgment, firm policies that grant women longer periods of parental leave than men are clearly illegal.”

Plaintiffs Mark Savignac and Julia Sheketoff, who met when clerking for U.S. Supreme Court Justice Stephen Breyer, alleged that Jones Day advertised its policy as granting women 18 weeks of paid leave and obscuring the fine print: an implicit expectation that birthing mothers will be disabled for eight weeks.

Verkerke acknowledged that structuring disability leave in connection with childbirth can be a challenge, noting that the Pregnancy Discrimination Act requires firms to treat disability from childbirth causes as equivalent to other comparable periods of disability that have nothing to do with childbearing. But he questioned whether Jones Day’s seeming presumption of disability can be defended.

“Although it’s surely laudable for the firm to wish to free women of the burden of documenting a work disability connected with the birth of a child, such a presumption arguably rests on stereotypes about how men and women respond to the birth of a new child,” he said.

Vanderbilt Law School professor Jennifer Shinall had a similar reaction to the lawsuit. She noted how Savignac and Sheketoff drew a contrast to the firm’s policy for adoptive parents, where primary caregivers are entitled to 18 weeks of paid leave even without having undergone childbirth.

“It seems to me that an adopted parent should get 10 weeks,” said Jennifer Shinall, who teaches at Vanderbilt Law School.

The fact that adoptive primary caregivers also get 18 weeks “is problematic,” Shinall said. And she suggested the logic of the couple’s argument, in which Sheketoff highlighted the legal work she’d accomplished within eight weeks of giving birth, served to diminish the real consequences of childbirth on many mothers, particularly for those who’ve had traumatic vaginal deliveries or C-sections.

“From my research perspective and a personal perspective, I think that childbirth recovery is real,” she said. “I don’t know that it’s good policy to not account for the fact that women have physical realities that are associated with childbirth and some childbirths are particularly traumatic.”

Imposing a requirement that mothers justify their added leave could add an unreasonable burden. Jones Day could argue that its policy was aimed at easing women’s responsibilities after childbirth.

“We already ask women and men who are having children to provide pretty extensive documentation from doctors to get FMLA leave in the first place,” Shinall added, referring to the federal statute mandating unpaid family leave. “To require any woman to give additional information right after they’ve had the birth of a child, I think is a tough policy.”

‘Always a Risk’

Jones Day’s policy isn’t singular. Several other elite firms, including Cravath, Swaine & Moore; Cleary Gottlieb Steen & Hamilton; and Gibson, Dunn & Crutcher, outline similar policies on their websites, granting birthing mothers 18 to 20 weeks of leave, but capping non-birthing parents at 10 or 12 weeks.

A flurry of other firms have recently announced that they are doing away with the distinction between primary and secondary caregivers, making all new parents eligible for an equivalent amount of leave. Putting aside elite litigation boutique Susman Godfrey, which promises unlimited parental leave, the upper end here seems to be the 18 weeks offered by Foley Hoag and Munger, Tolles & Olson. Out of 106 firms whose benefits are tracked by Chambers, 14 promise equal treatment for mothers and fathers, although the list is not completely up to date.

A number of the firms offering equal time to fathers and mothers, or primary and secondary caregivers, have policies with an added twist. They’re also allowing birthing mothers to take an additional eight or even 10 weeks of disability leave. Examples include Dechert; Fried, Frank, Harris, Shriver & Jacobson; Paul Hastings; Sidley Austin; and again Munger Tolles.

While parental leave litigation is on the rise throughout the U.S.—increasing 336% in the decade prior to 2016—these firms should be in the clear. It’s simply sounder policy to equalize the initial allotment, according to Verkerke, and then provide disability leave on an as-needed basis.

“There’s always a risk someone will allege that your facially nondiscriminatory policy is applied in a way that discriminates on the basis of a protected category,” he said. “It’s perfectly permissible (and legally required) to treat pregnancy-related disability equally with other types of disability. The problem with Jones Day’s approach is that it appears to presume work disability for birth mothers.”

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