Many thanks to Solangel, Dan, and the rest of Co-Op for inviting me to blog here this month. I’ll start out with a few posts about parental leave policies, inspired by this story about a woman named Kara Krill. (H/T Family Law Prof Blog) Krill had children through a surrogate mother. When her employer refused to give her the same maternity leave that is available to employees who give birth, she sued for disability discrimination. But first some background on the core dilemma of U.S. equality law when it comes to parental leave:
U.S. law aspires to formal equality for women and men in the workplace. When it comes to parental leave, that has meant maintaining a sharp theoretical separation between pregnancy leave and caretaking leave. Under the Pregnancy Discrimination Act, pregnancy leave is treated as disability leave and is supposed to cover the period of time in which pregnancy and birth disable a woman from doing her job. Caretaking leave—time to bond with and care for a new baby—is supposed to be available on a sex-neutral basis. In Nevada v. Hibbs, when the Supreme Court upheld the Family and Medical Leave Act as applied to the states, it said that Congress could legitimately force employers to give (unpaid) caretaking leave to everyone, in order to address the problem of many employers giving such leave to women only, by calling it “pregnancy leave” even when it was much longer than necessary for physical recovery from birth.
The distinction between pregnancy/disability leave and caretaking leave is neat in theory but breaks down immediately in practice. Read More