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.