Many employers offer paid parental leave policies to employees, affording new parents paid time off to care for a new child. Though some employers offer paid parental leave to both new mothers and fathers of equal length, many others offer substantially longer leaves to primary caregivers. Bifurcated parental leave policies for primary and non-primary caregivers are not illegal per se. However, employers should be cautious to ensure that their policies do not rely upon sex-based stereotypes to make classifications and allocate benefits.

Title VII of the Civil Rights Act of 1964 (“Title VII”) makes it “an unlawful employment practice for an employer … to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s … sex.” In effect, Title VII prohibits employers from making classifications or implementing policies that intentionally discriminate based on sex, including any sex-based classifications or sex-based stereotypes exhibited through the administration of employee benefits, such as paid parental leave policies. Numerous states, including New York, California, and New Jersey, also have their own laws that prohibit discrimination against employees on the basis of sex with regard to compensation, terms, conditions, or privileges of employment.

There has been an uptick in lawsuits by male employees alleging that their employer’s paid parental leave policies unlawfully discriminate against fathers by presumptively offering longer periods of paid parental leave to mothers. An example of such a policy is where “biological mothers” are provided 10 weeks of paid parental leave and “biological fathers” only 2 weeks. Or, a policy that provides “primary caregivers” longer periods of paid leave than “non-primary caregivers” and assumes that the “primary caregiver” is a female. That is, a policy that puts a greater burden on a male to show that he is the “primary caregiver.” Why? Because such a policy presumptively qualifies women as a “primary caregiver,” and thereby allocates benefits differently based on the sex of the employee.

In light of the current climate, all employers should carefully examine their policies to ensure that they administer parental leave and related return-to-work benefits in a manner that ensures equal benefits for male and female employees and utilizes sex-neutral criteria and procedures. The Hogan Lovells employment team has extensive experience drafting and advising on employment policies, and is prepared to assist with any questions or concerns. For more information about the above, or any other legal issues in the workplace, contact the authors of this article or the Hogan Lovells lawyer with whom you work.