Sex Equity in Parental Leave

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. Although unpaid FMLA leave can be used for either purpose, for employees who are lucky enough to have paid leave, pregnancy disability leaves are often much longer than caretaking leaves. Moreover, the presumptive length of disability leave related to pregnancy is often independent of either the individual woman’s condition or the physical demands of her job. For example, in the Krill case, Kara Krill was allowed 13 weeks of paid maternity leave when she gave birth to her first child. When her second and third children (twins) were born by a surrogate, she was allowed only five days of caretaking leave, under the company’s policy for adoptive parents.By drawing a sharp distinction between pregnancy leave and caretaking leave, the law is trying to treat men and women similarly when they are similar (becoming parents) and differently, in an appropriate way, when they are different (giving birth, or not). The problem is that the physical facts of pregnancy, birth, and recovery cannot be so sharply separated from caretaking. Women who are on leave to recover from childbirth are also taking care of, bonding with, and generally getting to spend time with their children. This means that, as long as caretaking leave is measured in days rather than weeks, even a leave policy that strictly limits pregnancy leave to the period of physical necessity will perpetuate gender differences in infant care. Looked at from the perspective of the family, it means that families who have children by adoption are deprived of the chance to have either parent spend substantial amounts of time with the new child. Extra baby time for birthing mothers is an inevitable side effect of extra time for physical recovery.

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1 Response

  1. Joey Fishkin says:

    It seems to me that it is problematic to assume that all women who give birth are disabled from doing their jobs for 13 weeks. In reality there is a lot of variation. For some women it is considerably longer than 13 weeks; for some it is shorter. I’m not saying that personalized is always better than standardized; there’s a lot to be said for certainty for planning purposes and so on. But there is a real problem here: policies like this company’s policy clearly are smuggling in a large and illegal disparity in post-disability “bonding” leave — five days versus, sometimes, most of the 13 weeks — under the guise of a pregnancy disability regime.

    Suppose the pregnancy disability regime were to be revised, and made more realistic, so that it was tied more closely to the actual period of disability. What would happen then? Would we just see a massive reduction in benefits for birth mothers? Or would this change cause the relevant decision-makers to see that parents (perhaps especially birth mothers, but also adoptive parents, fathers, etc) need and deserve more than five days of parental leave? I would like to think that reducing this smuggling of bonding leave through what is ostensibly pregnancy disability leave would reconfigure the coalitions around these questions in a way that would make an expansion of paid parental leave more likely. But that may be an overly optimistic assessment.