By this stage in the game, it’s no mystery that having a solid parental leave policy is a key component to efforts at attracting, retaining, and advancing women in the legal profession. But having a legally compliant parental leave policy isn’t just about supporting women in the profession—it is about sharing the load of child-rearing and closing the gender pay gap. Access to paid parental leave for men advances the goal of sharing the physical, mental, and emotional load of raising a family. And until we reach the goal of equal workload distribution outside the office, we will continue to struggle with equal representation of women inside the office.
There has been no shortage of litigation—both in the legal profession and outside of it—over sex bias in the structure of parental leave policies. As a threshold matter, we must recognize that there are sex-based differences when it comes to childbearing. Individuals who give birth require time to recover from the act of delivering a child, as well as time to bond. Non-childbearing parents do not need recovery time, but they are equally entitled to bonding time.
The federal Family and Medical Leave Act (FMLA), as well as many state laws, recognize this fact by allowing all parents—who meet legal eligibility requirements—to take job-protected leave during the 12 months following the birth or adoption of a child to bond. The fact that FMLA leave is equally accessible to all parents, regardless of whether they give birth or not, indicates that even for childbearing individuals, the weeks following birth are a time to bond with a new child while recovering from childbirth. Recovery is not distinguishable from bonding time.
To support new parents, many businesses provide parental leave, including paid leave to recover from childbirth and bond with a new baby. The issue that employers run into is when they treat childbearing and non-childbearing employees differently, without regard to the similarities of all new parents. Many businesses provide paid leave to mothers, and unpaid leave to fathers, on the theory that women are bearing most of the burden in having a child. While this may be true in terms of physical recovery, the law recognizes that men and women both have an equal need to bond with a new baby. Corporate culture can also punish men who choose to take leave—even where it is provided—under the misplaced notion that it is free “vacation” for new fathers.
State and federal agencies have taken a dim view of bias in parental leave policies and have brought litigation to address it. As a result, businesses should tread lightly when they elect to make sex-based distinctions in their parental leave policies.
While legal compliance is obviously important, there are also compelling societal and business reasons for equalizing parental leave policies. Although sex discrimination undoubtedly contributes to some portion of the gender pay gap, the gap persists for other reasons as well. Research and anecdotal evidence indicate that, on average, women bear a larger share of the administrative burden of running a family—whether physically or through carrying the mental load of keeping life organized for a family. And the gender pay gap will not fully close until we address that fact.
One step, among many, that we can take as a society and as a profession to rectify that problem is to provide equal access and support to men who choose to take parental leave. When women are paid for parental leave and men are not, it encourages women to take that leave—and temporarily exit the workforce, with all the disadvantages attendant to that decision—and it discourages men from sharing in the physical, mental, and emotional load of childbearing and raising a family.
There are biological differences between the sexes that we should not ignore, but recognizing those differences does not mean we should allow them to justify ongoing burdens on women that impede their advancement in the legal profession when they elect to have families. One way to lighten the load, and equalize outcomes, is to encourage non-childbearing partners to share in the joys and responsibilities of child-rearing. And that starts with time off to bond with a new baby.
Equality of access to parental leave is no panacea. The barriers to advancement for women in the legal profession and the ongoing gender pay gap are broad societal issues that cannot be addressed with any single action. But thoughtful, concerted efforts to addressing the unique burdens borne by women is a first step.
