A recent settlement between the American Civil Liberties Union (“ACLU”) and a national employer highlights the importance of ensuring that paid parental leave benefits provided by employers are not just written in a gender neutral policy, but also administered on gender neutral terms. The employer will pay $5 million to fathers who claim they were denied the opportunity to take additional paid parental leave as primary caregivers because of their gender, despite the employer’s paid parental leave policy that, on its face, did not distinguish between mothers and fathers. Like many paid parental leave policies, the employer’s policy stated that primary caregivers would receive more paid parental leave than secondary caregivers. Certainly, the plain language of the policy is gender neutral, so what was the issue? According to the ACLU’s complaint, the employer administered the policy in a way that deemed mothers the presumptive primary caregiver while fathers were deemed the presumptive secondary caregiver, unless they could show that their spouses or partners were incapacitated or had returned to work.
Employers may want to use this opportunity to make sure that any parental leave policies do not distinguish between mothers and fathers, both in the written policy and in the administration. Employers offering a 2-tiered parental leave benefit differentiating between primary and secondary caregivers may want to be certain that there are no implicit presumptions in those designations, but may also want to consider revising such policies to provide the same benefits, regardless of primary or secondary caregiver status.