When Derek Rotondo's wife was about to have her second baby, he knew he wanted to be more involved than he was when their older child, now two years old, was an infant. So he called up his employer, JP Morgan Chase, and asked to receive "primary caregiver" status, which would allow him to take 16 weeks of paid leave, rather than the two weeks given to spouses or partners who are not deemed the child's main caregiver.
But in both a phone conversation and via an online message, Rotondo claims in a complaint filed Thursday with the Equal Employment Opportunity Commission, he was told that birth mothers are considered primary caregivers presumptively. He would only earn that status as a dad and receive the benefit if he could prove his wife had gone back to work or was medically unable to care for the baby. Because his wife works as a teacher, and the baby, currently less than two weeks old, was born in the summer, his wife could not prove she was back on the job.
"I thought that was really outdated," said Rotondo, a Columbus, Ohio-based fraud investigator at JP Morgan. "I was surprised. I thought it would be just kind of 'ok, here you go.' "
Rotondo's charge -- he is being represented by the American Civil Liberties Union and the employment law firm Outten & Golden -- is thought to be the first private sector case challenging a parental leave policy that distinguishes between primary and secondary caregivers, said Galen Sherwin, a senior staff attorney for the ACLU's Women's Rights Project. If the EEOC decides the charge has merit and the case, which is being styled as a class action, is not settled first, it could go onto federal court.
"It should put Corporate America on notice that they should take a hard look at their parental leave policies," said Sherwin in an interview.
A spokeswoman for JP Morgan declined to comment other than to say it was reviewing the complaint.
The complaint comes at a time when paid parental leave policies -- if companies offer them at all -- are increasingly intended to be gender neutral, evolving from traditionally separate benefits for new mothers and new fathers. Some progressive companies, ranging from tech companies like Etsy and Netflix to the law firm Winston & Strawn, have set gender-neutral policies that give any parent, regardless of sex, the same amount of paid caregiving time. Others have adopted policies that give more time to the parent designated as the primary caregiver rather than splitting the benefit along explicit gender lines.
While the move was initially made in part to accommodate same-sex couples, said Cynthia Calvert, a senior adviser for the Center for WorkLife Law at the University of California's Hastings College of the Law, the problem is that "it still polices couples into sex-stereotyped roles," one where the presumption remains that "mothers are going to be doing the lion’s share of the work." Sometimes, Calvert says, "the policies even expressly say that women are presumed to be the caregivers and that men are therefore forced to go through bureaucratic hoops in order to show they’re the primary [caregiver]."
That is precisely what Rotondo alleges happened to him. According to his complaint, JP Morgan's "Disability Management Services" line told him that the company considers mothers to be primary caregivers and that to qualify, he would need to show that his wife had returned to work or was medically unable to take care of the child. In a follow-up contact with the company's online portal, the complaint alleges, he was again told birth mothers are considered the primary caregiver unless one of the other conditions was met.
"He had to jump through these additional hoops of showing his wife had gone back to work," said Sherwin, while their understanding is that "a woman in Derek's circumstances would not have to go through that."
That's where the legal questions come in. Sherwin and Rotondo's lawyers at Outten & Golden say the company is discriminating against fathers based on sex, which is in violation of the Civil Rights Act. "What the Supreme Court and what the EEOC have said about caregiving leave is [men and women] have to get leave on the exact same terms," said Outten & Golden attorney Peter Romer-Friedman, though it is "totally appropriate" for employers to to give birth mothers more time off for medical or disability leave to recover from the birth of a child.
Lisa Banks, a Washington, D.C.-based attorney who represents workers in employment discrimination cases, says more employers have been moving to gender-neutral policies to get away from such issues. Title VII of the Civil Rights Act, she says, "requires employers to treat men and women similarly in terms and conditions of employment. And a leave policy is certainly a term or condition of employment."
Ellen Galinsky, a senior research adviser to the Society for Human Resource Management, says she's long viewed parental leave policies like JP Morgan's with suspicion because "you're creating a hierarchy in the family," she said. "There is an increasing recognition that you want both parents to be with the child. The notion of primary and secondary caregiving is complicated in the ways this case shows."
Moreover, it's something a growing number of young men want. Calvert says she's getting more calls from fathers questioning the difference in the amount of paid parental leave they receive compared to their female colleagues. And research has shown that younger men have more egalitarian views about caregiving roles, but struggle to make it work with the policies many companies continue to have.
"There’s a definite generational trend for fathers to be more involved in the care of their children," Galinsky says, noting there's "a gap between the reality of the way [people] are trying to parent more equitably and what the policies are."