By:  Susan L. Pollet, Esq

Commentators have stated that France and Sweden, for example, provide a more generous maternity and parental leave than is available here in the United States.  Some protections in European maternity policies include a prohibition on attempting to obtain information about a woman’s possible pregnancy, and a prohibition on firing pregnant workers except in the most egregious circumstances.  The European legal orders do not require gender neutrality.  In France and Sweden pregnant women and mothers are entitled to more generous leave than is available with paternity leave.

​French law provides for a sixteen week maternity leave for mothers, whereas fathers are entitled to take eleven days of paternity leave only.  If the mother dies during the maternity leave, the father can then take ten weeks of leave for newborn care.  In Sweden the period of compulsory maternity leave is two weeks, and fathers can take a year of fully paid parental leave which French fathers cannot do.  In both France and Sweden women are required to take maternity leave, consistent with the EU directive.  In the United States, it is a potential violation of Title VII and the Due Process Clause of the Constitution to mandate maternity leave.  The Equal Employment Opportunity Commission warns against mandatory maternity leave policies on its website.

​American women have lower levels of labor market participation and a higher gender wage gap than do French and Swedish women.  In France and Sweden more woman take parental leave than do men, and more women are in part-time work.   In Sweden more men take parental leave than their French and American counterparts, which choice has been attributed to the fact that two months of the family leave cannot be transferred between the parents.  There are more women part-time workers in Europe than in the United States.  In most European countries, women take ninety percent of the parental leave.  The Committee on Women’s Rights and Equality of the European Parliament introduced a proposal for some period of compulsory paternity leave, but it was abandoned.

​Mandatory maternity is controversial and has been analyzed from two points of view.  While it limits the ability of the woman to go back to work immediately after the child is born, it can protect women’s ability to obtain their right to an adequate maternity leave.  Likewise it is asserted that mandatory paternity leave would allow fathers to more easily resist employer pressures to continue working.