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Is tenure-based maternity leave discriminatory?

Gayle26·Aug 25, 2021

Posted in:Compensation Diversity, Equity & Inclusion Parenting

I'm interviewing for new jobs and also family planning. I'm not pregnant, but I hope to be within the next year. One company I'm talking to has a tenure-based leave policy, which I believe is somewhat common. For example:

12 weeks paid leave if you have been at the company 1 year +
8 weeks paid leave if you have been there 6-12 months
4 weeks paid leave if you have been there 0-6 months

There is the option to take additional unpaid leave in each scenario.

My question is whether I have an argument to make that this policy is discriminatory against currently pregnant women, and if/how to negotiate for a different policy before accepting a potential offer.

Let's say I was 5 months pregnant the the primary earner in the household. Would I accept a job that offered me less than 30 days of time off with my newborn? Hell no.

RebeccaStevenson·Aug 25, 2021

New one to me! Every place I've worked at handled maternity leave through their short-term disability policy -- 6 or 8 weeks at reduced pay. (US; one hears that civilized nations have much better policies.) I don't know if you could make a case that it's discriminatory per se, but it sounds ridiculous to me.

sarahborders·Aug 26, 2021

This is a great question! If we’re talking company policies in the US, I don’t know that it’s discriminatory, but if you can’t get a full 12 weeks until after you’ve been with the company for a year, it sounds like it may be limiting for your needs and plans, and it may be something you can negotiate.In an ideal world, I think every woman should be able to start a new position eight months pregnant and have the time she needs available immediately. But most places do have some sort of short-term disability benefit available for this reason. Now, if you start a position and they won’t let you take advantage of short-term disability for your maternity leave because it hasn’t been a year, I feel THAT would be discriminatory.

Hettie·Aug 26, 2021

There are such companies in the US as well! My daughter accepted a position at Zendesk being 8 months pregnant and took five months leave (4-month maternity plus 4 weeks disability). Paid.

LeslieRosen·Aug 26, 2021

You are not being denied leave - they are just stating what they will pay for while you are out on maternity leave, based on your tenure with the company. This is similar to what some companies do with vacation time - the longer you are at a company, the more paid vacation time you get. FMLA provides leave up to 12 weeks but it does NOT have to be paid leave. This may change under President Biden. Various cities across the country also mandate paid leave, eg., New York provides paid family leave. The amount you get varies based on your average weekly wage. Check your state and if you are in a major city check that as well. You should also check to see what your company's disability policy states regarding pregnancy - some will pay 50-100% of your pay for the first 6 to 8 weeks of your leave. FMLA typically runs concurrently with disability.

Ruthie89·Aug 26, 2021

Here’s a link to the EEOC guidelines on pregnancy and discrimination. What they are doing is legal - I’ve never seen it stated in tenure terms, as if it was vacation time, but nothing companies do surprises me any more. Also, unpaid leave is not an option, they have to provide it under U.S. law. https://www.eeoc.gov/laws/guidance/enforcement-guidance-pregnancy-discrimination-and-related-issues

jenniferhenderson·Aug 26, 2021

Whether by definition discriminatory or not, you will absolutely miss out on talent and lose employees by creating a policy like this.

Valentina70·Aug 30, 2021

I don't think it's discriminatory but I would check your state's law in regard to family leave. I believe California requires at least 6 weeks paid leave and if your state has the same law, they would be in violation if they're only offering 4 weeks for people who have been there less than 6 months.

Misty206·Sep 08, 2021

Personally, I think it's discriminatory and it's not appropriate to compare maternity leave with vacation leave. Pregnancy can be unplanned, or not go as planned, and usually lasts 40 weeks, which is most of a year! A lot can change in a role in 40 weeks, wherein pregnant women may find themselves switching roles for a number of reasons. To not have access to a robust maternity leave simply because of tenure length is indefensible to me at best, and harmful to mom and baby at worst. Vacation is entirely different in its purpose and context, and accrual that is based on tenure may make sense there.That said, this is frustratingly not illegal. While there are lots to be said about the pitifulness of the US's lack of paid maternity, the one thing we do have is FMLA. FMLA can be utilized by an employee who needs to take up to six weeks off for certain reasons, including birth, without losing a job. The leave will be unpaid, and the job you come back to may not be the same one as when you left. The company also has to meet certain requirements though for FMLA to apply, as does the employee. One of those requirements is that you have had to been employed at that company for a year, and have worked a certain amount of hours within that year. I would say this provides a basis that other organizations who have their own paid leave policies to base a tenure-oriented leave policy upon with some legal confidence.

janettef·Oct 29, 2021

Sorry for the late comment, but if you're in California, you would qualify for 6 weeks partially paid leave from day 1, as long as your employer employs at least 4 other people.You can read more about it here:https://legalaidatwork.org/wp-content/uploads/2021/01/Pregnancy-My-Job-in-California-English-1-1.pdfNote that ^^ that link is only good for Californians