Encouraging work-family balance to correct gender imbalance: a comparison of the Family and Medical Leave Act and the Iceland Act on Maternity/Paternity and Parental Leave.

• Author: Pesonen, Amanda

1. INTRODUCTION II. THE RELATIONSHIP BETWEEN GENDER INEQUALITY AND FAMILY LEAVE LAWS IN THE UNITED STATES AND EUROPE III. THE FAMILY AND MEDICAL LEAVE ACT OF 1993 A. Notable Problems with FMLA in Practice IV. THE ICELAND ACT ON MATERNITY/PATERNITY AND PARENTAL LEAVE V. KEY DIFFERENCES BETWEEN THE ICELAND ACT AND FMLA A. Broad Applicability B. Paid Leave C. Recognition of Gender D. Cautionary Notes VI. RECOMMENDED CHANGES TO FMLA BASED ON THE ICELAND ACT ON MATERNITY/PATERNITY AND PARENTAL LEAVE A. Equality Does Not Mean Neutrality B. Paid Family Leave C. Wider Applicability VII. TAKING ADVANTAGE OF A CLIMATE FOR CHANGE: THE INFLUENCE OF THE AFFORDABLE CARE ACT VIII. ASSESSMENT OF FEASIBILITY OF CHANGE IX. CONCLUSION She deserves to have a baby without sacrificing her job. A mother deserves a day off to care for a sick child or sick parent without running into hardship--and you know what, a father does, too. It's time to do away with workplace policies that belong in a "Mad Men" episode. This year, let's all come together--Congress, the White House, and businesses from Wall Street to Main Street--to give every woman the opportunity she deserves. Because I firmly believe when women succeed, America succeeds.

   --President Barack Obama (1)

1. Introduction

   Despite President Obama's recent call for enhanced work-family balance policies in the United States, since its passage over 20 years ago, persistent concerns remain regarding gaps in the Family Medical Leave Act of 1993 (FMLA), with some of the strongest criticisms leveled at its failure to mandate paid maternity and paternity leave. (2) In fact, this failure continues to make the United States an extreme outlier among industrialized nations in terms of provision of policies designed to facilitate work-family balance. (3) The United States is one of four nations in the world that does not have a law mandating some form of paid maternity leave, a reality made more surprising by the fact that the United States is the only high-income nation maintaining this policy. (4) This problem is compounded by the reality that pregnancy-related healthcare is more costly in the United States than in any other industrialized country. (5) As one possible consequence of the failures of FMLA, the 2013 Global Gender Gap Report ranks the United States twenty-third internationally in gender equality, (6) and number seventeenth among countries classified as "high income." (7) Alarmingly, the gender gap in the United States is greater than the gender gap in the lower-middle income nations of the Philippines, Nicaragua, and Lesotho and even greater than the low-income nation of Burundi. (8)

   By comparison, Iceland has distinguished itself as a leader in gender equality for several years. Iceland consistently has been ranked first in gender equality in the Global Gender Gap Report since 2009. (9) It has been suggested in popular and academic literature that Iceland also has one of the most progressive work-family policies in the world. (10) As such, a comparison of Iceland's work-family law to FMLA may inform strategies for addressing FMLA's weaknesses in an effort to remedy the persistent gender inequality in the United States.

   This Comment will explore the linkages between the deficiencies of the FMLA and the persistent presence of gender inequality in the United States, utilizing Iceland as a comparator for methods to facilitate greater gender balance through the structure of family leave laws. After discussing existing research on the relationships between family leave laws and societal gender inequality, I will discuss the provisions of the FMLA most relevant to family leave. I will then provide an overview of Iceland's Act on Maternity/Paternity and Parental Leave. Then I will discuss key differences between the two laws and offer suggestions for how Iceland's law may be incorporated into US law and policy. Finally, I will close with a discussion of the possibility of incorporating these changes, in particular considering such possibility in light of the climate for change fueled by the Patient Protection and Affordable Care Act, which includes new protections for pregnant women and is currently in the early stages of implementation. As a note on terminology, the use of the term "family leave" throughout this Comment refers to maternity and paternity leave in an undifferentiated form.

2. THE RELATIONSHIP BETWEEN GENDER INEQUALITY AND FAMILY LEAVE LAWS IN THE UNITED STATES AND EUROPE

   Much research has focused on why the United States falls behind the rest of the industrialized world in family leave policy, frequently citing the idea that more progressive European models are based on the notion that maternity leave from employment is an assumed right in most of Europe. (11) One suggested reason for the differences between US and European maternity leave policies is the differing goals of the US and European feminist movements. (12) In the United States, the feminist movement has historically focused on equality between the sexes through treating men and women the same; in Europe, particularly in Scandinavian states, feminism has focused more on recognizing the differences between men and women and tailoring public policy to promote gender equality through accommodating those differences. (13) European, and particularly Scandinavian, family leave laws in particular tend to reflect this variation on the goals of feminism. (14)

   Gender inequality is arguably fueled by law and policy related to maternity and paternity as these roles conflict with employment. (15) Employers' failure to support parents--especially mothers--during and after a pregnancy places new parents at a distinct disadvantage in the labor market. (16) Many commentators argue that strong maternity leave policies function to combat gender inequality in a manner similar to affirmative action; by recognizing and supporting women's unique needs regarding the balance between employment and childbirth, progressive maternity leave policies serve to establish and maintain gender equality in the workplace. (17)

   However, a number of shortcomings of family leave law and policy in the United States prevent the attainment of such gender equality. For example, one study found that, while maternity leave legislation, including FMLA, increased new mothers' likelihood to return to their pre-pregnancy jobs after giving birth, the implementation of such legislation did not have a significant effect on mothers' likelihood to take maternity leave. (18) As will be more fully discussed, one explanation for this result may be that leave policies currently mandated by law in the United States are not practically feasible for permitting women to take family leave without experiencing negative employment-related consequences. (19) The more specific failures of US family leave law and policy will be discussed further below. (20)

3. THE FAMILY AND MEDICAL LEAVE ACT OF 1993

   The Family Medical Leave Act of 1993 covers most federal work-family policy in the United States. (21) FMLA was enacted upon Congress' recognition that many households require two incomes to maintain financial stability. (22) Work-family laws were first enacted at the state level, beginning with Massachusetts in 1972. (23) It was 21 years before President Clinton, as one of his first official acts as President, signed the federal FMLA into law. (24) Although 35 states had already enacted their own laws governing parental leave, (25) the signing of FMLA was considered an "historic occasion." (26)

   Comparatively, during the years leading up to the implementation of FMLA in the United States, the international community had likewise begun the recognize the importance of maternity leave, particularly during the 1960s and 70s as many industrialized countries experienced surges of female participation in the workforce. (27) Leave policies implemented internationally frequently were based on an understanding that leave is meant to benefit not only new mothers, but infant development as well. (28) In 1992, the year before the enactment of FMLA, the European Union mandated 14 weeks of paid maternity leave. (29)

   The bill to create FMLA had faced great opposition prior to its enactment, including two Presidential vetoes before it was signed into law. (30) During the formulation of FMLA, there was skepticism, largely from the industrial sector, that mandatory family leave would negatively impact businesses through decreased worker productivity. (31)

   Congress responded to these concerns by declaring that the purposes of FMLA were to be fulfilled "in a manner that accommodates the legitimate interests of employers." (32) Many of the negative opinions promulgated by businesses stemmed from reliance on sex stereotypes, which dictated that employees ought to depend on their spouses, rather than their employers, to provide necessary support during and after pregnancy. (33) The concerns raised by the business sector have generally proven false. (34) In fact, FMLA has had some positive effects on businesses, creating lower turnover rates and higher retention and productivity rates, as well as improving employee morale. (35)

   FMLA provides eligible employees up to twelve weeks of unpaid leave to care for a new child, as well as to attend to serious illness afflicting the employee or an immediate family member. (36) FMLA is gender-neutral, so men and women may both take a full twelve weeks of parental leave. (37) FMLA was written in gender-neutral terms in part in response to a California law that required employers to provide only maternity leave, which was struck down in 1984 because it discriminated against men by failing to grant paternity leave. (38)

   In addition, FMLA provides restoration of the employee's previous position, or an equivalent position, upon their return to work, as well as protection of benefits accrued by the employee before taking leave. (39) FMLA mandates minimal...