The Dictionary definition of the word “discrimination” photo taken through magnifying glass from a page of a dictionary with selective focus.In a follow-up to our August 2018 blog post regarding a $1.1 million class settlement of the Equal Employment Opportunity Commission’s (EEOC) first parental leave lawsuit against a large cosmetics company, a large financial institution has just agreed to pay $5 million to settle a class action parental leave lawsuit brought by the American Civil Liberties Union (ACLU) and a plaintiff-side firm on behalf of an employee. The lawsuit alleges that the bank discriminated against fathers based on gender stereotypes by giving mothers more parental leave. The settlement, once approved by the court, will be payable to a class of hundreds, if not thousands, of male employees who can demonstrate that they would have taken the full 16 weeks of primary caregiver leave between 2011 and 2017 if they had not been deterred from doing so.

The plaintiff in the lawsuit, a male employee, requested 16 weeks of parental leave based on the bank’s parental leave policy, which provides 16 weeks of leave to “primary caregivers” and two weeks of leave to “non-primary caregivers.” He alleged that the bank informed him that “per our policy, birth mothers are what we consider as the primary caregivers” but that he could only take primary caregiver leave if he could prove that his spouse or partner was back at work or “medically incapable” of caring for the child. The employee understood the policy to mean that if he were a birth mother, he would presumptively be eligible to receive 16 weeks of paid parental leave as a primary caregiver, regardless of whether his spouse had returned to work or was medically capable of providing any care for their child. Because his wife, a teacher, was off for the summer and not medically incapable of caring for their child, his request was denied, and he was eligible to take only two weeks of non-primary caregiver leave.

The lawsuit challenged the financial institution’s application of its policy, which provides 16 weeks of leave to “primary caregivers” versus two weeks of leave to “non-primary caregivers.” The employee alleged that, in denying his request for primary caregiver leave, the bank improperly presumed that men cannot be primary caregivers based on gender stereotypes. The bank maintains that its policy was always gender-neutral.

Under Title VII of the Civil Rights Act of 1964, it is illegal to treat men and women differently based on gender stereotypes. The EEOC has issued guidance regarding parental leave policies, stating that while employers can treat men and women differently due to physical limitations on women imposed by pregnancy or childbirth parental leave, they cannot treat men and women differently with respect to child-bonding leave.

Although the bank continues to maintain a bifurcated parental leave policy, it has revised the policy to make clear that both mothers and fathers can be eligible for primary caregiver leave. The bank has also agreed to train its human resources representatives regarding applying the policy fairly to men and women.

The effect of this settlement is wide-reaching. Many employers use the terms “primary,” “secondary” or “non-primary” caregiver in their parental leave policies to promote gender neutrality. However, there are risks to using these terms in a parental leave policy if those terms are not properly defined, are not properly understood, or are applied differently to male and female employees with respect to child-bonding leave. Further, employers should not presume that male employees cannot be primary caregivers. Employers that offer different levels of parental leave for different groups of employees should carefully draft their policies based on applicable legal guidance and train their human resources professionals appropriately.

If you would like assistance reviewing your company’s parental leave policy, our New York Employment Group is available to help.