A Winning Parental Leave Policy Can Be Surprisingly Simple

By Hilary Rau and Joan C. Williams

An employee handbook update doesn’t usually merit a press release and glossy promotional video — except when there’s a benefits arms race on. The paid-parental-leave arms race is red-hot because employers see a unique opportunity to nab talent and headlines by one-upping their competitors. Although 86% of American employees have no access to paid parental leave, at elite firms access is growing. Six weeks20 weeksA full year! From 2015 to 2017, more than 75 large companies issued press releases touting new or expanded parental leave policies. Forward-thinking companies recognize that generous paid parental leave and other family-friendly policies provide reputational benefits, confer a competitive edge in recruitment, and increase employee productivity and retention.

Sad fact: Employers often shoot themselves in the foot by designing old-fashioned leave policies that undercut their recruitment and retention goals and may expose them to public relations backlash and legal liability. The most common misstep is making paid leave contingent on employees identifying as “primary caregivers.”

Primary-caregiver policies are holdovers from the days when maternity leave was available to birth mothers only, with partners and adoptive parents left out in the cold. Such policies reflect the assumption that families will have one primary caregiver, supported by a partner with few, or no, caregiving responsibilities. It’s the old-fashioned homemaker/breadwinner model clothed in a tissue-thin veneer of gender neutrality.

Out of 75 new and expanded leave policies profiled in a recent report by CLASP and the National Partnership for Women and Families, more than 34% required employees to attest that they were the primary caregiver for their child in order to obtain the maximum leave benefit. Several of the policies profiled throw even the pretense of gender neutrality out the window. One policy states expressly that pregnant women are assumed to be the primary caregiver. Another states that the maximum leave benefit is available only to birth mothers and primary caregivers in cases of adoption and surrogacy only (sorry, biological fathers!). A third puts its thumb on the scale more subtly by defining primary caregiver as the parent with primary-caregiver responsibility immediately after birth.

Even a policy that looks neutral on paper can be applied in a manner that is anything but. Imagine this scenario: A new father tells his boss that he wants to designate himself as the baby’s primary caregiver and take 12 weeks off. The boss is affronted: “I only took a few days off after my kids were born, and they turned out great. Twelve weeks is a long time — what will you do that whole time? Your wife will be home, won’t she? We really need you at work right now!” Policies and practices like these are sex discrimination lawsuits waiting to happen.

The legal risks of primary-caregiver policies are not purely imaginative. JP Morgan Chase is currently under fire for its primary-caregiver policy, which the ACLU contends discriminates against fathers. JP Morgan Chase’s paid leave policy, which provides 16 paid weeks to primary caregivers and two weeks to secondary caregivers, is not unusual. Unequal leave policies for primary and secondary caregivers are widespread, a fact that has not escaped the ACLU’s notice. To reduce legal risk, companies should eliminate primary-and secondary-caregiver categories from their leave policies.

When it comes to leave for new parents, you need just two simple categories: disability leave for women who are physically unable to work due to pregnancy, childbirth, or related conditions, and parental leave that’s equally available to all employees, regardless of gender or caregiver status.

Legal risk aside, primary-caregiver policies risk alienating the very workers they are designed to attract and retain: Millennials and women. Millennials, who will make up 75% of the American workforce within 10 years, place a high value on paid parental leave and workplace flexibility. Paid leave is not merely a women’s issue for this generation: 78% of Millennials are part of a two-career couple, and it is the growing expectation of Millennial workers that both partners will work and parent. They find the homemaker/breadwinner model of family life unappealing, and so are likely to be put off by primary-caregiver policies. We know one Millennial, a systems engineer at a Fortune 500 company, who recently told her fiancé, a fellow engineer, that they would not be having children until he committed to taking equal parental leave. Her fiancé admittedly had not thought that far ahead prior to their conversation, but is now fully on board with the plan. A leave policy that allows for just one primary caregiver could be a deal breaker for partnered Millennial employees who are committed to joint career advancement and equality at home.

Primary-caregiver policies are also counterproductive to employer efforts to recruit and retain women, who leave industries like tech at twice the rate of their male counterparts. Research shows that the more parental leave fathers take, the more likely mothers are to return to work full-time. Gender-neutral leave policies allow families to take parental leave equitably and are the better bet for employee retention.

recent report on paid family leave by the New America Foundation reports that women who take paid leave are far more likely to return to the workforce and work longer hours, on average, one to three years later. Companies that have expanded their paid leave offerings have seen the attrition of new mothers drop by as much as 50%. Forcing working women to accept the old-fashioned primary-caregiver role as a condition to taking leave, however, fuels family dynamics that ultimately hurt women — and their employers. Primary-caregiver policies pressure couples into breadwinner/homemaker roles instead of diving childcare responsibilities equally — the exact opposite of what employers should be doing to decrease attrition.

Paid leave is a powerful tool for recruiting and retaining top talent — if it sends a strong signal that a company values its employees and is committed to equity and diversity in the workplace. Employers can avoid undercutting this powerful message by making sure that their paid leave policy applies equally to all new parents — mothers and fathers, biological and adoptive, LGBT, salaried and hourly — without requiring that employees first prove themselves to be primary caregivers. Many companies are ditching primary-caregiver policies in favor of gender-neutral policies and are expanding paid leave benefits to hourly workers, and for good reason: When you enter the paid-leave arms race, you want to win it.

Hilary Rau is a Staff Attorney at the Center for WorkLife Law at the University of California, Hastings College of the Law.

Joan C. Williams is Distinguished Professor of Law and Founding Director of the Center of WorkLife Law at the University of California, Hastings College of the Law. Her newest book is White Working Class: Overcoming Class Cluelessness in America.


Source URL: https://hbr.org/2017/07/a-winning-parental-leave-policy-can-be-surprisingly-simple