Do employers have to provide paternity leave?

It depends. Because male employees who become expectant or new fathers do not normally suffer any physical disability as a result of the experience, it is not unlawful sex discrimination for an employer to deny a male employee paternity leave if the employer grants female employees maternity leave only during the period that they are suffering from a pregnancy-related disability.

However, parental leave benefits that do not relate to a pregnancy-related disability must be applied equally to men and women under Title VII of the Civil Rights Act and the Family and Medical Leave Act. If the employer does not limit the availability of maternity leave to the period of disability, male employees must be granted paternity leave under the same terms and conditions. For example, an employer might choose to accommodate the personal needs of female employees by allowing them to take a certain amount of leave before and/or after the period of actual pregnancy-related disability. This kind of leave is frequently referred to as extended maternity leave. Employers who grant such extended maternity leaves may not lawfully deny paternity leave to male employees for similar purposes (e.g., preparing for or participating in the birth of the child or caring for the newborn child).

The Equal Employment Opportunity Commission suggests that employers separate the issues of pregnancy disability and parental leave. A safe harbor policy would establish a single standard for parental leave applicable to men and women and incorporate the pregnancy disability policy into the medical disability plan.