Friday, May 29, 2015

A Benefit Too Far?

Across the country, significant attention is being paid to the gender wage gap.  The EEOC has made enforcement of equal pay laws a top priority.  Some states and municipalities have adopted legislation aimed at increasing pay equity.  The wage gap, which exists regardless of industry, location, or job type, is one part of the tech industry’s poor record of hiring, promoting and compensating women.  In an effort to address diversity in general and women’s issues in particular, tech companies (among others) now offer enhanced employee benefits designed to attract and keep female employees, or to emphasize work-life balance, or both. 
According to recent reports, Facebook offers all new parents four months of paid leave and $4000 in “baby cash.”  Google gives biological mothers 18 weeks of paid maternity leave, and all new parents, male or female, can receive 12 weeks of paid baby bonding leave.  Twitter provides 20 weeks of paid maternity leave for birth mothers and 10 weeks of paid paternity leave for new fathers, and adoptive parents of either gender who work for Twitter are given 10 weeks of paid leave.  Although the majority of tech companies – of all companies, actually – don’t offer such generous benefits, it may be that the tech industry’s adoption of family-friendly policies is an indicator of things to come.
We hate to say anything negative about benefits meant to encourage diversity, support families, or close the wage gap, because those are all worthy goals.  The problem is that some of these benefits and policies violate the laws that require equal treatment.  In a well-intentioned effort to make the workplace a more level playing field for women and men, some employers have implemented policies and benefits that disfavor men simply because they are men.  Take, for example, a leave policy that provides 20 weeks of paid leave to new mothers and 10 weeks of paid leave to new fathers.  What justifies the difference?  Is it the physical disability women experience?  That could justify some of the difference, perhaps, but every woman’s period of disability will be different and most of the time, the period of disability is significantly shorter than 20 weeks.  So if it’s not about childbirth-related disability, why should new mothers get twice as much paid leave as new fathers?  They shouldn’t, if the employer wants to comply with Title VII and comparable state laws that prohibit differential treatment based on gender in the terms, conditions, or privileges of employment. 
There’s no doubt that childbirth and parenting generally impose a greater burden on women than on men, and no doubt that burden plays a major role in the gender wage gap.  That reality, however, has not resulted in federal law that legalizes better parenting-related benefits for women, and only a few states, like California, have laws that permit favorable treatment in certain circumstances.  Calling such policies “affirmative action” usually doesn’t work either, for reasons we have commented on in an earlier post.  As long as anti-discrimination laws say what they now say, different benefits for men and women, however well-meant, are legally risky for employers.
Another problem with such policies and benefits was pointed out by Claire Cain Miller in a recent The New York Times Upshot Blog post.   Miller notes that in some countries with generous paid maternity leaves, women are hired less often and kept in lower paying jobs to offset the cost of employer-paid benefits.  The column’s final paragraphs speculate about how to remedy those effects, and also offer an approach that addresses the legal concerns outlined above:
“Perhaps the most successful way to devise policies that help working families but avoid unintended consequences…is to make them gender neutral.  In places like Sweden and Quebec, for instance, parental leave policies encourage both men and women to take time off for a new baby.” 
The column then quotes Sarah Jane Glynn, director of women’s economic policy at the Center for American Progress, who suggests “[Parenting] has to become something that humans do, as opposed to something that women do.”

Posted by: Judy Langevin and Kate Bischoff
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