The United States is the only developed country that fails to guarantee paid time off work to new parents. Just 21% of American workers— and just 9% of the lowest quartile of earners—receive paid parental or family leave from their employers. As a result, many new parents, particularly low-wage workers, are forced to go back to work extremely soon after a birth or adoption. Fortunately, a growing number of states have stepped into the breach, enacting their own laws to provide this paid time off to new parents. Additionally, in December 2019, Congress passed a law providing paid parental leave to most federal workers, and the coronavirus pandemic has heightened calls for a more comprehensive federal solution. The new laws are a significant step forward from the prior baseline of no paid leave, but their structure systematically disadvantages nonmarital families and thus exacerbates inequality on the basis of class, race, and sex.
The unequal treatment of nonmarital families under parental leave laws has been overlooked—in both academic scholarship and policy debate—because in America, leave is typically assessed from the perspective of parents, not families or children. Under the state and federal laws, each parent of a new child receives income replacement during time taken off work to provide care. Mothers and fathers receive the same benefits; this structure is intended to encourage fathers to play a hands-on role in infant care. This is an important objective. Among married different-sex couples, women often curtail paid work when children are born, which has long-term ramifications on married women’s economic and social status. The pandemic has intensified this concern, with women being far more likely than men to disrupt their own work to meet children’s needs—or to have dropped out of the workforce entirely for at least a period of time.
Early evidence from states with paid parental leave programs suggests the gender-neutral structure, which provides equal benefits to each parent, is helping achieve better gender parity. Men are claiming benefits at relatively high rates. However, every step forward in achieving the gender equality envisioned by these laws—that is, the aspiration that both mothers and fathers will fully utilize their benefits—will widen the gap between families with one parent and families with two.
This is a significant issue. Nearly 40% of new mothers in the United States are unmarried; nonmarital birth rates are much higher for women who lack a college degree, as well as for certain racial minorities. This is the result of a large and growing “marriage gap” in our country. When unmarried parents are living together, or otherwise both involved in childcare, it makes sense that each should be able to take parental leave. But many nonmarital children are cared for by a single parent, usually their mother. This is particularly true for Black women; almost one-third of Black women with children under the age of one are the sole adult in their household—unmarried, un-partnered, and not living with extended family. Most single mothers will ultimately bear primary responsibility for both breadwinning and caregiving. But because the state and federal leave laws provide benefits to individual parents, single-parent families are eligible for only half as much support as two-parent families. In other words, the new laws disadvantage the families that are likely to need them the most.
This Article exposes the structural inequality built into paid leave laws and then proposes potential solutions. In the process, the Article makes several contributions. The first are descriptive and doctrinal. The emergence of the state paid family and medical leave laws, and the policy for federal workers, address a major gap in American labor and social welfare policy. A few articles in the legal literature have touched upon these new laws, but this Article provides a far more detailed description of their structure. It then breaks new ground by analyzing how the parental leave laws interact with the state laws that establish legal parentage and custodial responsibility, and shows that this has the—likely unintended—consequence of disadvantaging nonmarital families.
Second, the Article uses this analysis to suggest that our current theoretical approach to assessing “equality” in the context of parental leave laws is incomplete. Parental leave policies implicate foundational questions of sex discrimination doctrine and theory because they respond to key biological and social differences between (cisgender) men and women. American law adopts a formal equality approach, requiring equal benefits for each parent. Most other countries, by contrast, provide maternity leaves that are much longer than paternity leaves, specifically permitting such “special” treatment of mothers under their sex discrimination doctrine. There are merits to both approaches. But the myopic focus on what constitutes “equal” treatment of parents obscures other important vectors of analysis, such as equal treatment of children or families. Further, by shortchanging single parents, disproportionately women of color, the American structure perpetuates other forms of inequality. In this respect, the Article builds on other scholarship that has exposed how labor policies privileging ideals of formal equality may disadvantage women and exacerbate class and race-based disparities.
Finally, the Article applies this expanded theoretical frame to suggest policy reforms that would address the inequitable treatment of single-parent families without abandoning the aspects of the current structure that are helping shift gender norms around caretaking in two-parent families. Drawing on models used in other countries, the Article proposes that sole parents (which could be defined according to legal parentage, legal custody, or the use of other factors to gauge the level of involvement by a second-parent) would be able to access an extended period of benefits, or that a broader range of family members be able to claim benefits to care for a newly-born, newly-adopted, or newly-fostered child. It also suggests that leave policies be structured to provide medical benefits separate from newborn bonding benefits, which helps ensure that a mother with medical needs during pregnancy still has access to paid time off after the birth; this is important for all birth mothers, but it is particularly essential for single parents. These solutions could be readily achieved without unduly burdening any individual employer because the costs of benefits are spread through an insurance-based approach.