With multiple avenues for expanding a family and a plethora of different family models, employers would be wise to re-consider their parental leave policies to suit the needs of the modern family.

In May, a large multi-national corporation settled a class action lawsuit regarding its parental leave policy for $5 million. As written, the employer’s policy gave its employees who were primary care-givers 16 weeks of paid leave, and gave its employees who were non-primary care-givers only 2 weeks of paid leave. According to the lawsuit, the employer had an unwritten policy that made it almost impossible for men to qualify as a primary caregiver unless the birth mother was unable to care for the baby because she was medically incapable or because she was back at work. Such a policy, even if unwritten, could violate federal and state laws that prohibit employers from making employment decisions on the basis of sex.

Interestingly, the complaint alleged that the employer’s policy discriminated against both men and women, claiming that the policy “relies upon and enforces a sex-based stereotype that women are and should be  caretakers of children, and that women do and should remain at home to care for a child following the child’s birth, while men are not and should not be caretakers and instead do and should return to work shortly after the birth of their child.”

A modern parental leave policy also will take into consideration the broad array of family permutations. While there certainly are families with a mother and a father where the mother gave birth to the baby, there also are families with same-sex parents, neither of whom may have given birth to a child. There are families who expand via surrogate or adoption. When drafting and implementing a policy, employers would be wise to treat all of these people as equals as well as to recognize that the male in a traditional family environment may be the primary caregiver.

None of this is meant to suggest that an employer must draft a policy so detailed that it lays out the entirety of possibilities for how its employees may grow their families and how it intends to treat each situation uniquely. Rather, if an employer has, or implements, a leave policy that differentiates between the amount of leave for a primary and non-primary caregiver, it must ensure that every employee is eligible to be considered as the primary caregiver. Alternatively, an employer can implement a leave policy that makes no distinctions between primary and secondary caregivers, and gives all employees the same amount of parental leave no matter who they are.

Each company is different with a unique workforce composition, and there truly is no one-size-fits-all leave policy. That being said, employers would be well-advised to ensure that neither the wording nor the implementation of their leave policies discriminate against non-birth parents.