Legal Question in Employment Law in Maryland

Re: Adoption Leave vs. Maternitiy Leave

I do not believe there is a black and white answer here, but the answer is probably yes, it is discriminatory. The question is whether such action would constitute either sex discrimination under Title VII or pregnancy discrimination under the Pregnancy Discrimination Act (PDA). Because the adoption leave is (presumably) available to both men and women, the employer could argue that it is not discriminating against women by not giving maternity leave because neither men nor women get maternity leave but both get adoption leave. The problem is that the PDA says that pregnant women must be treated like everyone else. So, if an employer has a policy that allows short or long term sick leave for both men and women, it must allow women to use it for pregnancy leave. That would be the same with adoption. Men and women can use it, but women can not use the leave for pregnancy. Even if men could not either, it would be discriminatory just as in the short and long term leave example.

My guess is that the EEOC would rule against such "discrimination", but courts in different states might handle it differently. The safest approach is either to allow both adotpion and maternity leave, or don't allow either (unless, as I mentioned above, you have short or long term leave policies for other illnesses. Then you probably have to allow maternity leave anyway, unless the policies are somehow different from the norm).

If you need more specific help based on the actual facts of your situation, please call for a free consultation. Some research is probably needed into the case law, once the actual facts are known, to render a more definitive opinion.

Good luck.

Jeff Sheldon

Jeffrey L. Sheldon, Esquire

The Sheldon Law Firm

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Disclaimer: This posting does not and is not intended to constitute legal advice. It is not confidential, nor is it privileged, and it does not create an attorney-client relationship. Please consult with an attorney for advice specific to the facts of your case.