America is rather notorious in the Western world for having a particularly thin policy for family leave. Sick persons and pregnant women find most of their rights in the Family and Medical Leave Act (FMLA), conceptualized as a broader American commitment to anti-discrimination principles. In Europe, by contrast, maternity is given special legal protection, a feature that U.S. law would reject as a gender stereotype. Presenting at today's WIP talk, Julie Suk, visting the law school from Yeshiva University's Cardozo school of law laid out the conflict in stark terms.
Each account has its problems. The American model offers a relatively thin basis for providing family leave, which partially accounts for why (legally required) maternity and paternity leave benefits tend to be limited -- being unpaid, for example. Part of this is because of the nature of the FMLA, which, as the name suggests, aggregates together both "Family" (mostly child-bearing) and "Medical" (disability and sickness) leave programs. This combination resulted from the particular process by which pregnancy began to first see protection under the law. Litigation and legislation in the 1970s sought to, and eventually succeeded, in comparing pregnancy to a disability and argued that refusing to protect persons on the basis of this particular "disability" (only experienced by women) was a form of sex discrimination. Hence, the issues surrounding accommodating pregnancy were folded into a broader program aimed at accommodating sickness and disability.
However, in practice sickness and pregnancy present very different issues for employer/employee relations. The former requires managing several thorny enforcement problems -- it isn't always facially apparent whether a person is actually sick, sickness is unpredictable and thus provides difficult management problems for HR personnel, and there is no set amount of time one can expect an employee to lose to sickness. Because sickness and childbearing are aggregated together, many employers faced with ever-more expensive sick leave demands are hostile to expansions of family leave. This is true even though child-bearing leave is typically far less intrusive, with companies (hopefully) getting plenty of advance warning, visual signals that guard against abuse (it is pretty difficult to fake pregnancy), and reasonably standardized requirements for time off (a few weeks before delivery, a few weeks afterward). These two forms of leave can be easily disaggregated -- in Sweden, for example, there is growing skepticism towards overly-generous medical leave policies, while enthusiasm for expansive family leave continues unabated.
However, part of the reason why many of the European programs are so effective is that they seem to buy in quite whole-heartedly to a host of gender stereotypes. In France, for example, it is generally prohibited for women to return to work too soon after giving birth. The stereotype that women need protection from the strains of childbirth and that they can't be trusted to work after delivery rests, at best, uneasily with more modern notions of both the female body (specifically, the women are not fragile crystals who will shatter at any strain) and female agency (that they are in the best position to decide if they are capable of working or not). Rather than seeking to overcome gendered disparities in maternal versus paternal care, housework, and discriminatory attitudes, many European models, at best, seem to assume their existence and attempt just to manage their effects. And sometimes they go further -- the extensive leave granted to new mothers in France is difficult to justify based only on physical recuperation. Rather, the purpose seems to be the French state's perspective that mother and child have a special connection, and that women need time to bond with their child. This does not mesh well with the dominant American view that the law should give no notice to stereotypical attitudes, and certainly should utilize them as the motivating basis for policy. Indeed, legal actors seem concerned that taking notice of these stereotypes will rebound against those women who do not wish to have children or are not primary caregivers (but are assumed to be).
And this is what creates the paradox. We don't want to perpetually recreate and reproduce the disparate treatment which place women with disproportionate obligations towards children, childcare, housework, and other such activities. On the other hand, we don't want to ignore the reality that -- in the present world -- it is the case that this does describe the position of many women today. Family leave policies need to simultaneously accommodate a non-ideal state of affairs at the same time as they attempt to challenge it. It's a difficult tight rope to walk.
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