JPMorgan recently reached a settlement agreement to pay $5 million to a class of male employees who alleged they were discriminated against based on their gender under a leave policy that granted longer parental leave to mothers than fathers.  The policy in question permitted primary caregivers 16 weeks of leave to care for a new child but only two weeks of paid leave to nonprimary caregivers.

The plaintiff who filed the Equal Employment Opportunity Commission (“EEOC”) charge and subsequent lawsuit did not take issue with the primary/nonprimary caregiver distinction, but instead with the way the policy was administered.  He alleged the company applied the policy based on the presumption that women were primary caregivers and men were nonprimary caregivers by making it much more difficult for men to establish “primary caregiver status.”  When the male lead plaintiff reached out to human resources regarding the leave policy, he was told in writing “per our policy, birth mothers are what we consider as the primary caregivers.”

JPMorgan continues to maintain this distinction in its policy, but has clarified its policy and agreed to focus on training that eliminates gender-based stereotypes that females are primary caregivers and males are nonprimary caregivers.  This proposed settlement serves as a cautionary tale to employers who are increasingly offering enhanced paid leave policies in connection with the birth of a child.

Guidance from the EEOC issued in 2015 advises employers to ensure policies carefully distinguish between leave for pregnancy, childbirth, or related medical conditions and leave to bond with or care for a child.  Medical leave associated with childbirth and pregnancy can be limited to women, but if an employer provides additional leave for mothers to bond with or care for their children, that leave must equally be available to male employees.  For example, if an employer offers pregnant employees up to 10 weeks of paid pregnancy-related medical leave and six weeks of leave to bond with a new child, male employees must also be offered up to six weeks of leave to bond with a child.

Employers should pay close attention to the language used in their parental leave policy to ensure it identifies the purposes of leave following the birth of a child.  Beyond the policy language, employers should also train human resources to administer the policy in a gender neutral way.