A feminist critique of the Family and Medical Leave Act
“The good news is that most employers covered by the FMLA have complied with its terms and made caretaking leave available on gender-neutral terms. But the bad news is everything else.”
“Generally, men still don’t take caretaking leave. Generally, as they did prior to enactment of the FMLA, women take caretaking leave whether they are guaranteed reinstatement or not. And generally, employers continue to view women as more costly – and therefore less desirable – as employees, because employers expect that women will take more leave than men.”
“Women in 1992–as they do today–performed the majority of caretaking tasks for children, even in two-income households. And, unsurprisingly, this allocation of childrearing responsibility induces gendered leave-taking patterns.”
“Against a backdrop of a culture in which women are in fact primary caretakers–and pushed to continue in that role–[the FMLA's] protections do little to induce a reallocation of parenting responsibilities toward men.”
“To promote equality, an amended FMLA would need to do more than simply accommodate motherhood, as the current FMLA does. . . . [It] would also have to eliminate the incentives employers have to discriminate against female employees who are or are likely to become mothers.”
“This is where the current FMLA’s vision of equality falls short. Providing fathers with the formal opportunity to take parenting leave–in a society in which social, cultural, and economic forces make it unlikely they will do so–does little to force equal parenthood.”
“The FMLA should be re-evaluated – and potentially amended – on the occasion of this anniversary. The goal should be to see whether there is a way in which it could make paternity leave–and paternal caretaking–more enticing.”
Here’s the feminist agenda nakedly revealed. Equality under the law is not enough. Society must be changed–by the law. The law should “force equal parenthood.” She just can’t stand the thought that many new mothers freely choose to spend more time mothering than new fathers choose to spend fathering — and would so choose no matter what the law provided.
And missing from this retrospective analysis is the tremendous abuse of FMLA that takes place under the guise of “serious health condition” leave, especially intermittent leave, which has substantially mucked up employers’ legitimate efforts to enforce reasonable attendance requirements.
