Equalizing Parental Leave - New Article by Deborah Widiss

Given everything that is happening right now with stay at home orders and the job market, here is a timely and significant article about the United States being an outlier in parental leave rights. As Larry Solum says, download while hot. Here's the abstract:

The United States is the only developed country that fails to guarantee paid time off work to new parents. As a result, many new parents, particularly low-wage workers, are forced to go back to work within days or weeks of a birth or adoption. In recent years, a growing number of states have passed laws to address this gap in American labor policy, and in December 2019, Congress enacted legislation providing paid parental leave for federal workers. This Article offers the first detailed analysis of these new laws, and it exposes how their structure — probably unintentionally — disadvantages single-parent families.

In America, unlike most other countries, leave is provided on a sex-neutral basis as an individual benefit to each parent of a newly-born or newly-adopted child. This structure is intended to shift gender norms around caretaking within (different-sex) marriages, but it means that single-parent families receive only half as much support. This is a significant problem, as forty percent of new mothers in the United States are unmarried. Under state family laws, most single mothers, disproportionately poor and working-class women of color, bear sole legal responsibility for the care of their children. The new laws are an important step forward from the prior baseline of no paid leave, but they shortchange the families that are likely to need them the most.

Prior theoretical and doctrinal assessments of equality in the context of parental leave discuss the relative merits of treating mothers and fathers identically, versus providing “special” supports to mothers. This focus obscures other important considerations, such as whether families or children are treated equally. Additionally, since women are far more likely than men to be single parents, privileging ideals of formal equality in this context has the practical effect of disadvantaging women. Drawing on models used in other countries, this Article proposes that parents with sole custody should be eligible to receive an extended period of benefits, which they could use themselves or transfer to a different familial caregiver. This approach would not unduly burden businesses, because the financing mechanism for these laws already spreads costs across the tax base.