Maternity leave: why should employers pay?

Labour Market Injustice

Labour markets are rife with questions of justice. This series of blog posts; explore cases of injustice, highlight theoretical puzzles and point towards possible solutions. They emerged from debates at the ‘Labour Market Injustice’ Workshop co-hosted by Newcastle and Durham Universities and generously sponsored by the Society for Applied Philosophy.  In this fourth post Sarah Goff discusses bearing the costs of maternity leave.

In a 2004 interview, Donald Trump described pregnancy as an “inconvenience” for business. Whether or not this remark reveals anything about President Trump’s intentions for his promised reforms to maternity leave in the U.S., it seems plausible as a statement of fact. For a business, it often will be an inconvenience for employees to have a legal right to take a leave of absence and return to their positions without penalty. Of course, the cost of providing paid leave is additional to any costs incurred from the inconvenience of the leave-taking itself.

Observing that there are costs to maternity leave does not imply new mothers lack a moral right to take it. The observation simply raises the question of who is responsible for bearing these costs. The case for employers to provide paid maternity leave is less strong than the case for employers to accommodate new mothers in taking a period of leave with a right to return to their jobs. While only employers can bear the cost of the inconvenience to business, there are many feasible arrangements for other actors to bear the costs of providing financial support during maternity leave. In fact, there is substantial variation across societies in: public provision for paid maternity leave, legal mandates on employers to provide paid leave, employers’ provision of paid leave in excess of legal requirements (particularly in high paying industries where there is a business interest in retaining skilled employees), and social and cultural practices of support for new parents from extended families and kinship networks.

By contrast, it is not possible for the state (or extended families and kinship networks) to provide restorative compensation if the employer penalizes a new mother upon her return to work or prevents her from returning to her job. The woman will not enjoy all the goods of justice to which she is entitled, which I assume include equality of opportunity in jobs. My argument is that the employer commits an injustice when it fails to provide unpaid leave, because this policy is in itself sufficient to restrict workers’ access to equal opportunities. Employers also commit an injustice if they discriminate against women in hiring and promotion decisions in anticipation of possible maternity leave-taking. This is because there is no similar countervailing form of discrimination against men in the workforce, and no way for society as a whole to provide restorative compensation to women in the form of jobs.

I wish to say something less strongly condemnatory about employers’ arrangements for unpaid leave. In a society like the U.S. that generally fails to guarantee provision (or public financing) for paid maternity leave, employers’ arrangements for unpaid leave are not an injustice. Other feasible arrangements could be made for workers’ financial support during a period of leave, as is the case in other societies. The state could provide financial support or (at least for some new parents) extended family networks could provide financial and logistical support for caring for a new child. When new parents merely receive unpaid leave, here is what can be said from the standpoint of justice: these workers are treated unjustly; society as a whole is unjustly arranged; and employers’ arrangements for unpaid leave are one part of a social arrangement that is unjust in a holistic sense.

There may be good reasons to limit employers’ responsibilities merely to provision for unpaid materity leave. One reason is to reduce employers’ incentives to engage in statistical discrimination. Businesses ought not to discriminate against pregnant job seekers or pregnant employees (or against women on the grounds that they may be or become pregnant), but this requirement is not fully enforceable through law. Any business’s non-compliance with the requirement of non-discrimination may provide it with a competitive advantage, because it will not have to pay for its workers’ maternity leaves nor will it suffer the inconvenience of the leave-taking itself.

It is not a new observation that there is a perverse incentive for businesses to avoid hiring people who have higher labor costs for moral reasons. However, it casts doubt on the idea that the most ideal feasible arrangement for providing paid maternity leave involves responsibilities for employers, given their special role in allocating an important good of justice, namely, opportunities in the form of jobs. By contrast, there is a good reason employers should suffer the inconvenience of accommodating new mothers with unpaid leave, namely that it is necessary for justice and they are the only actors that can do this.

Sarah Goff is visiting assistant professor in the Department of Politics and Public Administration at the University of Hong Kong. Her research focuses on fairness in trade and discrimination in labor markets.