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Law in Contemporary Society
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THIS ESSAY IS STILL BEING EDITED, but comments are welcome.
The Case for Mandatory Paternity Leave-- By MichaelBerkovits - 05 Apr 2008 Paternity leave, unknown for much of the last century and still rare today, serves several functions. For employers, it is an attractive benefit to dangle in securing employee talent. For family advocates, it is a means of ensuring that more children grow up with involved fathers. For the women's movement, paternity leave functions as a way of counteracting the traditional female monopoly on child-rearing and that monopoly's contribution to the scarcity of women in power positions in the economy. Women remain underrepresented in positions of power, in significant part because of continued expectations - by men, women, and employers - that women are far more likely to interrupt their careers to raise children. So long as women, including well-educated women, continue to take career breaks to raise children in vastly larger numbers than men, positions of economic power will continue to diverge along gender lines. It is true that one reason for the female underrepresentation problem may be that, because women on average hold less powerful (and hence less lucrative) positions than men, many women elect to serve as the parent who takes time off to raise children because it is the rational economic decision in light of the parents' respective salaries. In this sense, the fact that women bear the brunt of the child-rearing burden is an effect of the problem of female underrepresentation, as well as a cause. Regardless of the precise mechanisms at work, however, it is clear that the cycle must be broken if we are to become a society with a sex discrimination-free workplace.Maternity Leave: A Partial SolutionThe rise of maternity leave, its ultimate enshrinement in law, and the increased availability of paid maternity leave has surely allowed some women to forge successful careers who would not done so under the older system, where women were frequently fired for being pregnant. Maternity leave refers to an employer policy guaranteeing a mother a return to her job after 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. Some employers offer more generous programs, 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. Even paid maternity leave programs, however, do not solve the female underrepresentation problem. First, 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 and hence be inefficient investments relative to employees who will not take lengthy breaks. Second, even at firms with generous maternity leave programs, women surely fear - accurately, no doubt - that taking a lengthy break mid-career will retard one's rate of career advancement, if not precluding promotion entirely.Paternity Leave: One Step BetterMaternity leave programs help mitigate the female underrepresentation problem by incentivizing some women to begin careers that would otherwise have been too harshly inconsistent with family life. Paternity leave programs mitigate the underrepresentation problem by ensuring that more men take career breaks in order to help raise children. The more men who take paternity leave, the less parental leave is a distinctly female issue, and the less it operates to exclude women from privileged positions in society. Paternity leave, once nonexistent, has gradually become more common. The FMLA treats males and females 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, none 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 all employers offered some paid leave to new mothers, while only 12% offered (any) paid leave to new fathers. So long as paternity leave programs (PLPs) remain less generous than their maternity counterparts (MLPs), men will not find leave as attractive an option as do women. However, it is likely that even if PLPs were both universal and as generous as MLPs, men would still be less likely than women to take time off. For example, in Sweden, where employers are required to offer sixteen months paid leave at 80% salary (subsidized by the government), to be split as a couple sees fit, men only take about 20% of the available leave. The statistic might be even more skewed if not for the fact that each parent is required to take a minimum portion of the available leave time - approximately 20%!. The explanation cannot be that husbands earn more than their wives, because each parent earns (nearly) his or her entire salary while on leave. The reasons, then, must be cultural: women are expected to raise children, whether because of beliefs about their superior parenting skills or lingering prejudice about their overall unsuitability for the workforce. Also, whether explicitly or not, it is clear that employers are likely to reserve coveted promotions for the most demonstrably committed employees. So long as most managerial positions go to males, men cannot afford to take themselves out of the running for these positions by taking advantage of paternity leave, even when it is available. And if men remain less likely than women to take extensive leave, the problem of female underrepresentation will continue. Something more than merely continuing the current trajectory of expanding PLPs is necessary.Mandatory Paternity Leave with Equal Leave Time for Both Parents: A Bold Leap ForwardThe slow rise of PLPs incentivizes more men to take parental leave than otherwise would. However, in a system where parental leave is optional, females, because of powerful economic and social forces, will continue to take the vast majority of leave. In order for paternity leave to dent the problem of female underrepresentation, it must be universal and it must be mandatory. Immediate implementation is unrealistic, but the goal is a worthy one. The Swedish system of paid leave at 80% salary is a workable model and a goal that should be aimed for, with the modification that couples are required to split their leave 50/50 if they opt into the system at all (and perhaps fewer than sixteen months leave). The system would be expensive, to be sure, but at least part of the costs to productivity would be offset by a happier workforce that was no longer forced to fight the family - career battle. A few couples might be dissuaded from having children altogether because of the onerous burden of both parents having to take a leave from work so long as one does. Other couples might choose to have children later in their careers, after they had already moved through the ranks, so as not to torpedo their chances earlier in their careers. Decisions like these might lead to more parents having children for the first time when older. But these effects, if present, will be on the margins. [[http://news.bbc.co.uk/2/hi/europe/4629631.stm][Most parents will choose to have children], and most parents would opt in to the system of paid leave. The result could be a society of parents who take career breaks of equal lengths in order to raise children. Many more children could grow up with two parents who were involved in their lives from birth. Family, rather than being in constant conflict with career, could be in harmony with it. And the problem of female underrepresentation in our economy could be one step closer to being solved.
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