Law in Contemporary Society
This paper has been revised and is in final form.

How Swede It Is

-- By MichaelBerkovits - 19 May 2008

Congress does not ordinarily look to Scandinavia for guidance on economic and social policy. But when it comes to paternity leave, Sweden has it mostly right, and America has it mostly wrong.

In Sweden, all parents have access to up to sixteen months leave, thirteen of which are paid at 80% salary. The cost of the program is split between employers and the government. In a two-parent household, the sixteen months can be split as the parents see fit, provided that at least two months are taken by each parent.

The Swedish model serves several objectives. First, while no one is forced into the system, the generous subsidies provide strong encouragement to opt in, ensuring that more children grow up with early, full-time parental support than otherwise would. Second, the two-month minimum for each parent ensures that male parents in households opting into the system take time off to help raise their children; indeed, more than 80% of new Swedish fathers do. Third, Swedish women gain a somewhat more equal career playing field, relative to Swedish men. In a society where most people take at least two months of leave, per child, lengthy career interruptions are the norm for both genders and not merely for childbearing women. Therefore, Swedish women as a group do not suffer as severe a competitive disadvantage as do women in countries with fewer reasonable options for paternity leave.

The American System

Parental leave has gradually become more common and more generous in the United States. Late into the twentieth century, women were often fired for having become pregnant. But since The Family and Medical Leave Act of 1993 (FMLA), most large employers are required under federal law to offer new mothers at least twelve weeks of unpaid leave. Some employers offer more generous programs in an effort to attract and retain the best female talent. Overall, however, no more than 15% of American women have access to paid parental leave.

While paid maternity leave is rare, paid paternity leave is nearly unheard of. The FMLA treats male and female parents symmetrically, mandating that employers offer at least twelve weeks unpaid leave for fathers as well as mothers. But while many employers go beyond the minimum requirements for female employees, the same is not true for men. According to a 2005 study, 54% of all employers offered some paid maternity leave. Only 12% offered any paid leave to new fathers.

The Problem

The American system of parental leave fails to perform any of the three functions which the Swedish system serves. First, the FMLA’s guarantee of twelve weeks leave pales in comparison to the sixteen-month Swedish model, which allows a much lengthier period for full-time parent-child bonding. Indeed, the three-month FMLA period, at least for some women, is barely sufficient for full physical recovery from pregnancy. Second, the paucity of compensated paternity leave in America means that few fathers can afford to take any substantial time off, especially considering that male wage-earners often contribute a large share of the family income. Approximately 15% of the men eligible for paternity leave under the FMLA request it, suggesting that the FMLA does little to encourage more paternal involvement in child-rearing; it may well be that those men who take time off under the FMLA tend to be more motivated fathers who would have found ways to take time off work even before the FMLA was passed. Third, because so few men take parental leave, the American system has utterly failed in creating a workforce in which interrupting career for family is an ungendered phenomenon. In Sweden, most men and women take lengthy amounts of time off work to raise a family; in the U.S., this remains a female phenomenon.

Toward a Solution

The Swedish system benignly “forces” men as well as women to interrupt careers to raise children by providing strong incentives to opt into a program of generous compensation. In the process, it encourages greater early parental involvement with children, greater involvement by fathers, and the growth of a workforce that cannot be easily divided along gender lines in terms of who is liable to interrupt a career to raise children and who is not.

Each of these three benefits can be approached in degrees, without a wholesale shift to the Swedish model. The present American system guarantees many Americans three months of unpaid leave; expanding the federal requirements to, say, six months leave with at least six weeks paid at 80% salary, would go a long way toward achieving some of the benefits of the Swedish system. Significant resources would be necessary to make the program work (indeed, the full program eats up 1% of the Swedish GDP), but it is not hard to imagine that a combination of federal funding, employer tax breaks, and self-funding (perhaps through a modest increase in social security, as is done in admittedly more socialist Sweden) could work.

While Sweden requires that both parents take at least some leave, it is unlikely that this most effective method of ensuring male opt-in – mandating it – could be instituted in the United States (even at a modest 80/20 or 70/30 split). The Supreme Court has held that the federal government may not condition a benefit, e.g., leave pay, on the waiver of a constitutional right. While passage of the Equal Rights Amendment might have altered the Constitutional fabric sufficiently to allow for such legislation, our present Constitutional structure would seemingly preclude a wholesale move to a Swedish-style model.

Nevertheless, expanded parental leave, including robust requirements for employers to provide compensated paternity leave, needs to stay on the political radar. While the full extent of the Swedish model may not be implementable here as a matter of American constitutional law and practical politics, the social benefits of expanded parental leave, including strong, institutional encouragement of paternity leave, are too great to ignore.


Webs Webs

r14 - 22 Jan 2009 - 01:59:32 - IanSullivan
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