The Hidden Gender of Gender-Neutral Paid Parental Leave: Examining Recently-Enacted Laws in the United States and Australia
Comparative Labor Law & Policy Journal, Forthcoming
26 Pages Posted: 18 Dec 2019
Date Written: 2020
Virtually every country in the world provides maternity leaves that are far longer than paternity leaves, even if they also provide supplemental parental leave available to either parent. Recently-enacted laws in the United States and Australia, by contrast, eschew sex-specific classifications entirely, providing only gender-neutral parental leave. American laws provide each parent equal and non-transferable benefits; Australian law provides an extended period of benefits to a “primary” caregiver, and a much shorter period of benefits to a “secondary” caregiver. This Article shows how the modern paid leave laws relate to the countries’ pre-existing laws addressing unpaid leave rights and to doctrinal and theoretical debates regarding what equality means in the context of pregnancy and childbirth. American law generally requires formal equality between men and women, while Australian law permits special accommodations for mothers. This Article also reports early data suggesting men are more likely to claim benefits under the American approach. As in other countries, this is likely because fathers forfeit any unused leave; it may also reflect the short duration of leave available to mothers. The Article suggests additional potential explanatory factors for future empirical study, including the possible gendered effects of gender-neutral leave policies that require a single person be designated as the primary caregiver.
Keywords: Parental Leave, Maternity Leave, Family and Medical Leave Act, paid family leave, Australia, Comparative Labor Law, Primary caregiver leave, pregnancy discrimination, equality theory
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