Maternity Leave Means Fathers Too

A Commissioner at the Massachusetts Commission Against Discrimination (the Commission) has announced that effective immediately the Massachusetts Maternity Leave Act (MMLA) will apply to new parents of either sex. This means that both mothers and fathers (or both parents in gay marriages) in Massachusetts will be entitled under state law to eight weeks of unpaid leave upon the birth or adoption of their child. (The MMLA applies to employers with six or more employees.)

This announcement by the MCAD is startling for many reasons. First, it appears that the Commission, has rewritten a statute that is clearly gender-based (“maternity” rather than “parental”) to be gender-neutral. The Commissioner admitted as much when he said the reason for the Commission’s interpretation is to avoid the following problem:

“If two women are married [as is legal in Massachusetts] and adopt a child, then they are both entitled to leave under the [MMLA], and yet if two men are married and adopt a child, they would be entitled to no leave under a strict reading of the statute. That result was troubling to us, and we didn’t think it was in keeping with our mandate by statute, which is to eliminate, eradicate and prevent discrimination in Massachusetts.”

The Commission says it “enjoys broad discretion” and so it is applying the statute to avoid what it considers to be a state constitutional problem. Of course, the Commission must apply the law in a constitutional manner, but it does seem to have taken a radical step in this instance without a notice and comment period that most major legislation (or legislative changes) undergo before passage. As some lawyers have said, it creates significant obligations for employers overnight, which obligations may not be what the legislature has intended.

Second, the Commission’s interpretation of the statute appears to understand the “discrimination” the MMLA seeks to eradicate as discrimination against parents rather than against women. I don’t know the history behind the MMLA, but its title (and language) suggests that the gist of the law was not to eradicate discrimination against parents but against mothers. (The word “female employee” is all over the statute.)

The big question for me, however, as I read this news is whether I care how startling it is and whether instead I should jump for joy that finally FINALLY some official legal body has recognized in a brave (however radical and oblique) way that gender equality requires that fathers/spouses be equal parents of newborns with mothers. I don’t think it a radical idea (although people I mention it to think it novel and curious) that the disparity in child care in our society — where most women are in charge of child care in their household despite more than sixty percent of mothers working outside of the home — is rooted in maternity leave, a gendered leave policy that creates inequality in the competence and expectations for child care. (To be sure, the FMLA is gender neutral and passed under congress’s section five powers as a remedial and prophylatic measure to combat sexism. But the MMLA targets infant child care specifically where as the FMLA covers diverse family relationships. For a quick comparison of the MMLA and FMLA see here.) By interpreting the MMLA in this way, the Commission has given most fathers/spouses in the Commonwealth the right to stay home with their newborn.

I have long lamented the accommodation of maternity leave – not because I think it unnecessary for mothers but because it creates an expectation that mothers (and not fathers/spouses) will stay home with the baby when born or adopted. In addition to providing time to physical recuperate from labor (which for most women takes between two and four weeks), maternity leave (especially for new moms) is a form of boot-camp, teaching women how to care for an infant by forcing the togetherness. Most women don’t know any better than most men how to calm a fussy baby, how to feed a baby, how to swaddle a baby or put her to sleep. These skills are gender-neutral. When do women become more competent than men at these tasks? When they care for their own newborn during maternity leave (or, admittedly, when they have taken a job caring for children or cared for a sibling or friend’s child prior to having their own child). Maternity leave is a three month (sometimes more) “head start” in the child-care department. And this head-start often sets the parameters for child-care duties in the future. At four months when a mother is back at work, that mother is typically better at soothing and dressing and feeding the baby because she has done it so often the past twelve weeks while her husband/spouse was at work. It makes sense, therefore, at the end of the work day, that when the baby is fussy or hungry that she calms and feeds the baby because she is better at it. This is an efficient division of labor. But it also relegates her to the “second shift,” one that mothers have historically complained about, whereby she works in the office all day and in the house all night. And this gendered child care dynamic is entirely avoidable if fathers/spouses became as competent as mothers in the earliest days of their baby’s life. Three months of total immersion in child care is a long time. Ask any parent: the learning curve is a steep one. And when the baby is crying, you want the most skilled person to calm that baby (i.e., the person who can succeed the fastest at the task). This is often the person who stayed home with the baby, and it is usually the woman.

So back to the Commission’s announcement. What it might accomplish if applied to both parents is to encourage them to become equally competent at caring for their newborn at an early enough stage in the parenting relationship to prevent gender inequality in child care in the future. And it sends the message that both parents are crucial to nurturing the child – which is of course true. How will it apply in practice? Does it allow for the possibility that one parent might stay home for the first eight weeks and the other parent for the second eight weeks? Would it allow for both parents to stay home at the same time? Either way, I hope this significantly changes the parental leave landscape in Massachusetts – for the better. It is long overdue that fathers/spouses be expected to care for their newborns as mothers are expected to. I would bet that many fathers/spouses would relish the idea of a three month leave to care for their new child. And I have no doubt that children will be better off for it. I applaud the Commission.

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15 Responses

  1. suprised says:

    Why is the commission allowed to rewrite a statute? Isn’t that the job of the legislature? And why is the commission allowed to strike down a statute as unconstitutional? Isn’t that the job of a court? What happened to the separation of powers in Mass?

  2. Jessica Silbey says:

    The MCAD is not striking down a statute, it is interpreting the statute so as to avoid what it sees as a constitutional problem in light of recent SJC case law (case law decided after the MMLA was passed). This is within its discretionary authority delegated to it by the legislature. As with most administrative agencies, the MCAD’s guidelines (as to its interpretation and application of the statute) do not have the effect of law, but they indicate the MCAD’s position on enforcing the MMLA. Moreover, because the MCAD is the agency charged with enforcing the MMLA, courts may look to the MCAD guidelines for guidance in ruling on alleged violations of the MMLA. I am sure there will be an appeal of the MCAD’s application of the statute as gender neutral to the state court, and so a court will have the opportunity to decide the issue. There is no administrative coup in Massachusetts.

  3. Andrea says:

    This is a really great post – I think your analysis of the effect of maternity leave is spot-on – but I wonder how much we should realistically be lauding the positive future effects of longer unpaid leave. How many families can really afford to take it?

    My husband is a state employee of MA, and when our daughter was born in January he was entitled to 2 weeks paid leave and his full 12 weeks of FMLA leave. He took…2 weeks (plus a few extra days), because there was no way we could afford 2-3 months without his paycheck (I was a law student on financial aid). Believe me, we both would have loved him home, although he’s now a skilled and hands-on daddy.

    I appreciate MCAD “sending a message” about co-parenting but, you know, we can’t eat a message 🙂

  4. David S. Cohen says:

    As I wrote just now on the Feminist Law Professors blog, I think Jessica’s post excellently shows how same-sex marriage works to break down sex- and gender-based hierarchy within marriage. This is a key part of the sex discrimination argument against same-sex marriage. Not only do laws against same-sex marriage facially discriminate based on sex, but they also perpetuate sex-based hierarchy within marriage.

  5. Nadav Perez says:

    I’m a great fan of fathers taking a parental leave, but I think you’re a bit to optimistic. Our experience, here in Israel, shows that at 12 weeks, fathers just don’t take maternity leave; and the leave here is paid, so the economic punishment for a father taking it is higher in mass (since, unfortunatly, men’s wages are still higher).

    experience from canada shows that only when making the leave MUCH longer (around 50 weeks), fathers begin taking it up in sizeable amounts.

    doctors might say that recovery is 2-4 weeks; most women feel they need longer before they can return to work. And after all, they are the ones making decisions on this issue.

  6. Jessica Silbey says:

    I agree with the comments above indicating the Commission’s interpretation of the MMLA doesn’t go far enough — “show me the money” is essentially what these commenters are saying. Given the gender disparity in incomes between men and women it is likely more of a hardship for fathers to take unpaid leave than mothers. It is also harder in terms of cultural pressure for fathers/spouses to take the time off than mothers — although the law as interpreted should prevent discrimination or retaliation against fathers/spouses who assert their rights under the MMLA, as with the FMLA, you don’t see that many dads/spouses taking the time to care for their newborns. To be sure, there are more dads/spouses doing it than in decades past, but perhaps not enough to trigger a cultural shift in expectations for child care. That said, with the MMLA sending this message to employers in Massachusetts, we are one step closer to experiencing that shift. I worked at a law firm before I began teaching where fathers were given paid paternity leave of four weeks. This is still a very generous policy, although, in my opinion, still not enough to change the gender dynamic in the household or society. It seems that along with paid parental leave, employers should realize that taking care of families will take care of business — happy worker bees and all that. There is a lot to be said for the goodwill that employers create by acting like they care about the people who work for them and their families. So there is a bottom line argument to be made and a justice argument to be made — both in furtherance of the Commission’s recently announced interpretation of the MMLA.

  7. Stuart Buck says:

    Most women don’t know any better than most men how to calm a fussy baby, how to feed a baby, how to swaddle a baby or put her to sleep. These skills are gender-neutral.

    I may have missed something in my wife’s breastfeeding class, but I’m pretty sure that “you can do this too” was not one of the lessons. 🙂

  8. Susan says:

    “It makes sense, therefore, at the end of the work day, that when the baby is fussy or hungry that she calms and feeds the baby because she is better at it.”

    In part. But it also makes sense because, in the case of a mother who is breastfeeding, what the baby wants is her breast. And so fathers can not “become as competent as mothers in the earliest days of their baby’s life” regardless of who takes leave after birth. Unless your argument is that women should not breastfeed, a gendered child care dynamic can not possibly be entirely avoided.

  9. Kim says:

    I thought the purpose of maternity leave wasn’t only child*care*, but healing from child*birth*. Childbirth — natural or C-section — requires some significant physical recuperation (right? I’m childless, but it’s the part that freaks me out the most).

  10. Jessica Silbey says:

    About breastfeeding — it is easy to fall prey to the “only women can nurse so only women can feed the baby” trap. Certainly, only women can nurse, but if women want some reprieve from around the clock nursing (and I have yet to meet a new mom who doesn’t), women have to make friends with the breast pump or supplement with formula. Either way, the dad/spouse then gets the pleasure of nourishing the baby and the mom gets a break. I know plenty of women who from the day they are home from the hospital have the dad/spouse feed the baby once or twice a day with a bottle of breastmilk or formula so that the dad/spouse can get the hang of it (and enjoy it) and the baby gets used to it.

    Kim – Maternity leave is often dubbed “disability leave” and some women do need more than 2-4 weeks to recuperate from labor. Some women don’t. To be sure, most women are NOT disabled for the 8-12 weeks that most maternity weeks cover. And, frankly, if a woman is really disabled when she has a baby, this is all the more reason for the dad/spouse to stay home and help care for the infant. Caring for a newborn takes 24hour care and if the person doing the caring is the mom, then someone needs to be taking care of her. The week of paternity leave that many employers give to dads is in no way enough to cover the “disability” that women suffer after labor and delivery.

  11. Susan says:

    Sure, one can pump and I certainly did (since I started teaching 6 weeks after my daughter was born). But, first, if you are a nursing mother, you will wake up in the middle of the night with breasts that need to be emptied, and given that, there is frankly not a whole lot of value in having the dad/spouse get up to feed a baby already expressed milk. Second, the reality is that if one is working in any sort of stress situation (say, for exmaple, one’s first semester of law school teaching), the amount of milk pumped during the work day is not always large. (And many choose not to introduce formula at an early age.) For those reasons I continue to maintain that the gendered child care dynamic can not be “entirely avoided,” which was the assertion that was made in your original post.

  12. Dineen says:

    I am a mother and lawyer and all for equality of leave. I agree with the overall point of this article and applaud Mass for requiring equal parental leave for both parents. However, I strongly disagree with two of your underlying premises. First of all, if a mother has delivered by cesarean section (which, unfortunately, is increasingly common due to the medico-legal climate, but that’s a whole other issue!) she probably needs at least 6 weeks to recover. Certainly, 6 weeks is the recommendation.

    Second, nursing is not a task that can be delegated, and there are good reasons not to introduce a bottle or formula too soon if one is intending to nurse long-term. I agree with you that having both parents home to do primary care for a newborn will give both parents boot camp in child care, to the benefit of all concerned. But I agree with Susan that you cannot entirely erase the gendered child care dynamic in the early days. Yes, plenty of people formula feed, by want or necessity, and it’s great that that option is available in modern society. But that option should be a tool for survival, not a sword to undermine the mother-child feeding dynamic.

    And for what it’s worth, in the case of all of the same-sex married couples I know, one parent took more primary care and the other was secondary, in a sense falling into gendered roles despite being the same gender.

  13. jst says:

    Paternal leave is a good idea, but I am wary of making it a constitutional requirement. It is more important for a woman to get leave than for a man, in order to encourage the woman to breastfeed and allow her to recover from delivery. It would be wonderful for both to get leave, but if we make it a consitutional requirement that they get equal amounts of leave, then we risk unduly limiting women’s leave due to a lack of resources. Would employers offer women 18 weeks if they had to give it to men too? If they have to treat men and women the same, maybe they will only offer 6 weeks?

  14. Jessica Silbey says:

    “she probably needs at least 6 weeks to recover. Certainly, 6 weeks is the recommendation”

    If that’s the case, then of course the mother needs disability leave. It is rare for any employer to deny leave when the leave is necessary to recover from a medical condition. I am not arguing for anything different.

    “But that option should be a tool for survival, not a sword to undermine the mother-child feeding dynamic”

    I have to disagree with this point — if only to underscore how the comments have reverted to a “mother-child” dynamic rather than a “parent-child” dynamic. Certainly, if the baby isn’t feeding well or the mother isn’t producing enough milk (and she wants to produce more), then the two (mother and baby) need to spend more time together nursing. But if neither of these problems present themselves, there is no reason the mother must be the sole provider. In fact, in families of friends where there was problem nursing or a medical condition that prevented it or simply a father who was eager to participate, I saw a “father-child feeding dynamic” that was rich and rewarding, as much as the mother-child dynamic that exists between many newborns and their moms. It seems to me that nursing is too often used as an excuse to relegate the dad (or the same-sex spouse) to roles that eventually lead away from child care.

    With regard to same-sex couples, I have no doubt that one person may fall into the primary child care role, but whether these are “gendered” roles depends entirely on whether the roles are valued differently — whether the roles are hierarchical in the relationship and as viewed by society. Just because two women raise a child, and one stays home and the other works outside the house, it doesn’t mean the roles are “gendered”. The gender dynamic (sex + ideology of difference implying hierarchy/dominance) would only come into play if the woman who stayed home was some how subordinated in her relationship to her spouse (undervalued, unequal or unfree) precisely because she stays home.

    Finally, as to jst’s comment regarding a constitutional requirement, Massachusetts isn’t advocating this. The MMLA is just being interpreted as requiring equality of leave. There is no constitutional requirement for any parental leave at all, it’s a statutory right. That being said, I think the gist of your concern is that if dads/spouses were going to get leave too, legislators might be wary to give anyone leave. This, unfortunately, is what Thurgood Marshall famously called the “too much justice” argument. If we give justice to women (here in the form of an accommodation to help them be parents and employees), we have to give it to men too. It seems in a society as advanced as ours on so many levels, we should figure out a way to make this work — for both parents. And, really, I don’t think it works for mothers unless it is also working for their spouses. That is, I don’t see moms gettng a fair shake at the family-work balance unless their spouses are also participating in the family care in a substantial, if not equal, way.

  15. Thomas Lynn says:

    I don’t think there’s any reason to believe that skill in caring for a newborn, or lack of the same, means much when it comes to caring for a toddler or any other older child. Children aren’t babies forever after all. So the fact that care for newborns might result in a heavily gendered dynamic doesn’t tell us anything about what care for children more generally would look like.

    I thought the complaint about cases in which a woman stays home for child care is that staying home itself causes that woman to be undervalued, unequal, unfree. That is, we understand the roles to be gendered because staying home stands in a certain relationship to work outside the home. I don’t see how that is avoided just because a same-sex couple is involved.