The Case for Mandatory Paternity Leave

-- By MichaelBerkovits - 05 Apr 2008

There are many reasons why women continue to be underrepresented in powerful positions in the economy. This essay concerns itself with one that is particularly difficult because it arguably derives from legitimate business interests and not from sexist motivations.

Introduction to the Problem

Despite the fact that having children is a reliable route to decreased life satisfaction, people continue to reproduce in large numbers. Women are immensely more likely than men to interrupt or forgo their careers in order to raise children; even many high-achieving women contemplate doing so. Until the 1978 Pregnancy Discrimination Act (PDA), having a child, for women, often meant being fired or resigning in order to avoid firing. Today, employers would shy from firing women because they have become pregnant. Yet even today, one can imagine that some employers find women to be less desirable candidates for employment or promotion because of a perceived likelihood that they are likely to take significant time off, or even interrupt or end their career, because of a pregnancy. Furthermore, some women likely refrain from beginning certain types of careers because of a concern that prospective employers will not accommodate mid-career leaves of absence in order to have and raise children. Finally, some women, probably correctly, conclude that whether or not employers accommodate parental leave, it is far more difficult to earn promotion and advance in an industry when one takes a substantial amount of time off in order to focus on one's family. All of these factors likely operate to reduce the number of women in powerful positions in the economy. (rephrase so as not to have quite so bold a leap of logic)

Maternity Leave: A Partial Solution

Maternity leave refers to an employer policy that allows a mother to return to her job after she has taken time off for pregnancy or infant childcare; the leave may be paid or unpaid. (Since The Family and Medical Leave Act of 1993 (FMLA), most large employers are required under federal law to offer at least 12 weeks of unpaid leave.) Employers often compete for the most generous maternity leave programs, sometimes offering paid leave for lengthy periods, in an effort to attract and retain the best female talent, though only 8% of American employees (male and female) have the option of taking paid parental leave. Maternity leave helps address the concern that some prospective female candidates for employment have when choosing whether to enter certain careers or certain places of employment.

Maternity leave, however, does not address the possibility that, at least among firms who have leave policies only because they are required to do so under the FMLA, some will discriminate against female hires because of the likelihood that they will take advantage of the firm's leave policies. Nor does maternity leave address the possibility that women risk the possibility of advancement, or at least retard the rate of advancement, by actually taking a lengthy break mid-career.

Paternity Leave: One Step Better

The extent to which parental leave has a sex-disparate impact depends on the number of men who take such a leave as compared to the number of women. Employers will not discriminate against female candidates based on the perceived likelihood of taking maternity leave, if the number of men who take paternity leave (and the length of that leave) is comparable.

Paternity leave, once nonexistent, has gradually become more common. For example, the FMLA treats male and female parents symmetrically: employers covered under the FMLA must offer at least twelve weeks of unpaid leave to new fathers as well as new mothers. However, while many employers go above and beyond the FMLA-required minimum limits for female employees, the same is not true for male employees. For example, among the Institute for Women's Policy Research "Working Mother 100 Best Companies" - a set of employers that one would expect to be particularly friendly toward family leave issues - 93% offered paid maternity leave, while only 35% offered paid paternity leave. None of these employers offered more than six weeks paid leave for new fathers, while nearly 50% did so for new mothers. Another study, conducted in 2005, found that 54% of employers offered paid leave to new mothers, while only 12% offered (any) paid leave to new fathers. employers who offer maternity leave, 46% offered some paid leave to new mothers. Among employers who offered paternity leave, only 13% offered paid leave to new fathers. While the rising numbers of employers offering paternity leave surely encourage many men to take time off for a new child when they would not otherwise do so, the incentives are not as strong as they are for women so long as paternity leave programs remain less generous than similar maternity programs.

Furthermore, it is likely that even if paternity leave programs were both universal and as generous as maternity leave programs, men would still be less likely than women to take time off. For example, in Sweden, where employers are required to offer

First of all, to be effective, paternity leave must at least be equal to maternity leave (Unpaid paternity leave is no good; only 35% of the "Institute for Women's Policy Research "working Mother 100 Best Companies," which would be expected to be a particularly family-friendly set, offer paid paternity leave: - compare to 93% of companies in that group offering paid maternity leave: http://www.iwpr.org/pdf/parentalleaveA131.pdf)

But even if paternity leave policies are structured the same, there are still problems: Women more likely to actually take leave because of cultural pressure / habit, the fact that men earn more (few men actually take paternity leave; see Swedish situation:http://www.thelocal.se/10420/20080312/)

Mandatory Paternity Leave:

It is too difficult to police whether firms are loathe to hire women because of the potential for maternity leave, and because of that, many women will be chilled from ever applying to certain jobs or firms in the first place. The solution, then, is to require symmetry in practice as well as in form. If both employers and women know that

In general, you can only accomplish this through affirmative action, i.e., privileging the disadvantaged class, or through creating a restriction on both sexes that operates to "disadvantage" them equally

But see Harrison Bergeron objection Also see objection based on discouraging childbirth

Address objection: why not just make make it harder for employers to discriminate?

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PreWriting? Notes (For Author's Use Only):

• Some invidious sexism still exists
• Besides addressing that, though, we need to address selection criteria that are perfectly rational and legitimate and not intended to be proxies for sex, yet nevertheless have sex-disparate effects ** We still live in a society where a much greater proportion of women than men interrupt their careers for children; this is true even among high-achieving women
• We have been making strides: * Maternity leave (prevents employers from firing female employees simply for taking time off to have children) - but this still perpetuates the notion that it is women who take time off * Mandatory maternity leave - this turns a benefit offered by some firms into one required by society ** Paternity leave (recognizes that males may want to take time off for their children to, or alternately, recognizes that males may be better situated to do so (maybe the female is the higher earner or the one with the job requiring more continuity), or alternately, recognizes that involves fathers create better-raised children and hence is a good thing for society

Should employers be required to offer paternity leave?

• Right now, women might not enter certain powerful careers because of the prospect of interrupting their careers to have children, and certain employers are less likely to hire women because of the career-interrupting potential of children ** Encouraging more men to take paternity leave would mitigate that risk
• There are certainly downsides: * Government would have to help fund * It would encourage more people to take off work and hence decrease productivity
• There are also some upsides: * It might create happier, less resentful employees, more well-slept employees (this would increase productivity) * Good for society in that more kids are raised by both their parents rather than just one

Should paternity leave be mandatory?

• There are two senses of the word mandatory in this context: * Should a couple opting into the parental leave system be required to split time equally between the mother and the father? ** Current Swedish system, and Swedish proposals... * Should parents be required to take a leave of absence from work? ** This is a massive intrusion into people's private lives and freedom of contract * Harrison Bergeron objection * Optional paid paternity leave is enough incentive; who would want to work while still getting paid? ** But potential to lose out on promotions ** Even if it is illegal to discriminate based on who opted into the parental leave system, there would be no way to police that