Why Trump’s Newest Parental Leave Proposal Still Doesn’t Cut It

Last week, the Trump administration released its budget request to Congress and included a proposal for six weeks of paid family leave to new mothers and fathers, including adoptive parents. This paid leave plan is not as retrograde as the original plan, which, as we previously wrote, would have promoted sex stereotypes by limiting its benefits to married birth mothers. But the correction of that unacceptable error does not mean the replacement plan is satisfactory.

The devil remains in the details.

The most glaring of the many unknowns and flaws in the revised plan is the provision of paid leave to new parents only, with no provision for paid leave to take care of one’s own serious health condition or to care for a sick family member. This may seem like a case of half a loaf being better than none at all — working families are, after all, desperate for additional support. But the revised Trump plan ignores the lessons of history and would, in actuality, risk ushering in a whole new era of discrimination against working women.

The simple reality is that if employers are required to provide paid time off only to new parents, employers will consider female employees a more expensive liability than male and be less likely to hire or promote women. This is true even if that parental leave, on its face, is available to fathers as well as mothers, because employers will assume — based on stereotypes and experience — that women will be more likely to take the leave. Indeed, it was precisely to avoid employers’ reliance on these gender stereotypes that the Family and Medical Leave Act, a major milestone for workers and women's workplace equality enacted in 1993, includes coverage on a gender-neutral basis for self-care as well as care of a newborn or other family members.

Who better to explain this than Justice Ruth Bader Ginsburg. In Coleman v. Court of Appeals of Maryland — a Supreme Court case analyzing the self-care provision of the FMLA, which provides 12 weeks of unpaid leave to eligible employees — Ginsburg explained why it was so important that Congress drafted the law in gender-neutral terms and why the self-care provision was essential to avoid sex discrimination in the workplace:

A law providing special protection to women . . . in addition to being inequitable, runs the risk of causing discriminatory treatment. For example, legislation addressing the needs of pregnant women only might encourage discriminatory hiring practices against women of child bearing age. Legislation addressing the needs of all workers equally does not have this effect. By addressing the serious leave needs of all employees, the FMLA avoids providing employers the temptation to discriminate [against women].

Having recognized that new mothers need leave for their own serious medical condition as well as to care for their newborn baby, Congress thus took steps to ensure that men with equally serious medical conditions would also be entitled to leave. According to Justice Ginsberg, this move was intended “to blunt the force of stereotypes of women as primary caregivers by increasing the odds that men and women will invoke the . . . leave provisions in near-equal numbers.”

Provision of leave for self-care and care of other family members was thus necessary not only to meet the real-life demands that face American workers. It was also necessary to “ward off the unconstitutional discrimination [Congress] believed would attend a pregnancy-only leave requirement,” and prevent the likely harmful consequences to sex equality in the workplace of providing parental leave only.

Current statistics have borne this out: Roughly half the people taking leave under the FMLA for self-care are men and half are women. For this reason, “[P]arental and medical leave . . . are inseparable,” Ginsburg wrote in Coleman. By failing to provide paid leave for self-care and care of other family members, Trump’s proposed parental leave plan runs precisely the risk of encouraging sex discrimination that the FMLA avoided by its broader coverage.

The devil remains in the details.

Trump’s proposal also ignores an existing alternative that would actually meet the needs of working families. The FAMILY Act, a bill pending in Congress, would provide women, men, and families 12 weeks of partially paid leave for (1) the birth or adoption of a child; (2) the serious health condition of a child, parent, spouse, or domestic partner; (3) one’s own serious health condition, including pregnancy and childbirth recovery; and (4) caregiving for members of the military. The broad coverage of the FAMILY Act recognizes that people get sick and may need time off to undergo surgery or chemotherapy or to care for a family member receiving such treatment, in addition to needing time off for pregnancy, childbirth, and to bond with a new baby.

Ultimately, like so many of his proposals, Trump’s parental leave plan is a double-edged sword — and women in the workplace would be the ones most at risk of getting cut. This is not a risk we should be willing to accept when it comes to America’s working families.

The ACLU is hard at work on the fight for comprehensive paid family leave. If you would like to join us in our federal, state and local advocacy, call your members of Congress and ask them to co-sponsor the FAMILY Act, fill out our survey, and also let us know if your employer provides unequal leave for different types of parents or family members. Working families deserve better, and together we can make comprehensive paid family leave a reality.

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No to Family Act

This article proves the point that employers will "discriminate" if the act is passed. Employers are businesses that look to make a profit. Anything they can do to prevent loss of income they will do. Why is this bill needed anyway? We have FMLA which already says you can't be fired for taking government approved convalescence leave! Yes it is unpaid, but businesses should NOT be required to pay an employee not working. This bill standardize leave pay and kill programs that most employers already have to pay employees on leave.

This anti free speech! As a business I have free speech rights and can choose to pay my employees within the law. This law prevents me from paying my employees more if I want to. The ACLU is wrong on this one and encourage exactly the type of speech suppression it fights!

Civil

The ACLU is the American CIVIL Liberties Union. Not the A Corprate LU. Socialism and communism is their order of the day. All humans treated exactly the same and given exactly the same resources and opportunities. This is social communism. Corporate communism puts corporations in charge of all aspects of life. Fortunately America is a governmental communism with only 2 parties.

Anonymous

Unfortunately, about 40% of the workforce is not eligible for FMLA. FMLA stipulates you need to be at a business that employs more than 50 people, need to have been there for over 1 year, and need to have been working more than 25 hours per week during that 1 year period.

Anonymous

@No to Family Act What an idiot, glad I don't for you.

@@no family act

Sorry you feel that way. If you did you would make six figures and get 9 months paid baby leave! That's my standard for employees for child birth. So don't judge what you don't know.

Anonymous

anti free speech? oy, that's pushing it. what you pay your employees is not "free speech", it's a contractually agreed-upon amount based on numbers.

this does nothing to change leave programs that already exist for some employers, and i'll stress that "SOME". prior to sick leave laws being passed, my employer didn't provide any kind of sick leave pay for me. if i was sick, i lost money. it doesn't kill anything.

nothing prevents you from paying your employees whatever you want above the existing minimum wages set by federal or state laws. it doesn't stop you from paying them more, because nowhere does it indicate a maximum salary cap on any employee. all it does is ensure that getting sick won't mean that they have to worry that their rent won't get paid because they lost time.

Scott Simpson

You can only push so much on businesses. Before someone has a child, it should be thought through and planned out. Can I afford have a child? What changes to our work schedule need to be made? Do I need to save my sick/vacation time so that I can have a child with paid leave. Its called being a responsible person. I can already hear people say what about unplanned pregnancy. That could occur if someone takes all the necessary precautions but a pregnancy still occurs, but that is a rarity. Laws should be drafted to address the more common situations.

Also, if you are a good employee, the employer will want to keep you and work with you.

Lastly, businesses offer benefits to entice prospective employees to come work for them instead of a competitor. Therefore the market and competition may solve the concern.

I would prefer mandatory vacation/sick time; a certain amount of that can be accumulated at employee's option for major health issues, such as pregnancy or major surgeries.

Anonymous

And I would prefer to not have cancer, a child l/partner/parent with cancer, or any devastating illness/injury of ANY kind, that would drain me of any accumulated sick/vacation in a matter of days weeks. Companies normally don't let you accumulate more than 2 years of vacation time, so a reasonable scenario here is about 20-25 days leave. If you're young enough, you might not use much of your sick leave - but if you get pregnant, have children/aging parents that time may be partially/completely used used up yearly with little hope of accumulating time. A WOMAN working for 5 years, if lucky, has never been ill, never taken a day off, will only have approximately 40-60 days available for leave. Not much if you need to care for a family member. A YOUNG woman I worked with recently, had been with her employer about a year and a half was in the hospital for 3 1/2 weeks, and not back to work for 2 months. No her vacation and sick leave didn't come close to covering this. Look at what other countries provide, and then tell me we shouldn't do better.
As an afterthought, Scott, please realize 2 things: 1) being a woman, you are automatically in a pool of those with pre-existing conditions 2) I HOPE YOU/YOUR PARENTS/CHILD/SIGNIFICANT OTHER are NEVER ill/injured and you NEVER take a vacation so that if YOU/YOUR PARENTS/CHILD/SIGNIFICANT OTHER happen to have a serious accident/illness you'll have enough days to not have to worry about days/weeks/months that you have to take off.

Anonymous

It's called short term/long term disability insurance. If your employer offers "regular" insurance, the. They offer this. Ask your HR department. This is the type of insurance that lets you take long periods of time off work with pay. While this is not available to all, it is available to most employed Americans. Many don't opt in to this insurance because they don't want to spend the extra 20-30 dollars a month. But this option is much cheaper than 2 years off with no pay!

Sue

So on one hand, women should plan out having children. But on the other hand, if anything happens outside that plan, she must still have that child. And now she will be punished for not planning well enough or having something beyond her control take place. Is that because all men make such perfect plans that they feel free to judge? LOL

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