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PATERNITY LEAVE AND WORKPLACE DISCRIMINATION: BREAKING THE BARRIERS TO EQUAL PARENTAL RIGHTS

Introduction

We live in a society where people of different genders have pre-given roles and they are stereotypes attached to people of every gender. One such common stereotype is ‘women should be taking care of the household and should look after their children’ and ‘man should work and provide for them’. Even the laws of many countries reflect this gender-based stereotype. In India, there have been laws related to maternity leave that provides paid leave for 26 weeks for new mothers, however the same has not been provided to new fathers, which is discriminatory and violates Article 14 of the Constitution and arbitrary and reinforces gendered role in society. Maternity leave in India is often considered progressive, which to a certain extent is true, but it increases the burden on women and creates an unhealthy scenario where many companies are unwilling to hire women, which hurts the career of women.[1] The lack of paternity leave institutes workplace discrimination and brings ambiguity to parental rights. The father also has equal rights to spend time with his child and bond with them. There has been a proposition by the government which was introduced in 2018 as the ‘Indian Paternity Benefit Bill, 2017’ but has not been implemented yet.[2] There’s a dire need to implement paternity leave and brings uniformity and equality in the workplace.

Laws in India

India’s law regarding maternity leave has been considered progressive which provides 6 months of paid leave to new mothers, however, the same cannot be said about paternity leave. Paternity leave in India is provided only to central government civil service employees under Rule 551(A) of the Central Civil Services (Leave) Rules, 1972.[3] The rule provides paternity leave to a male employee who has less than two children for a total of 15 days, with the final 15 days to be used six months from the child’s birth date. There is no provision for private and state government employees. However, certain companies, under their discretion give paternity leave to their male employees. The employees of IKEA, Amazon, Infosys, Microsoft, etc. are such private companies where male employees are granted paternity leave.[4]

There are certain cases in recent times, which talk about the need for paternity leave and bring workplace equality, however, there is no uniformity. Employees of unaided accredited private schools are entitled to paternity leave, according to the Delhi High Court’s ruling.[5] However, there is no uniformity in rulings which makes it difficult to entirely rely on the courts.

In 2018, Shri Rajeev Satav, introduced Paternity Benefit Bill, 2017. Although the measure has not yet been passed, it represents one of the most important steps toward establishing paternity leave. This bill aims to provide paternity leave to men of all sectors which can be of period from 15 days to 3 months. The bill also has its ambiguities such as the period for paternity leave, if the child is adopted, is only 15 days.[6]

Global Trend

Many countries have laws in favor of maternity leave; however, fewer countries provide the benefit of paternity leave. However, to legislate effective laws, one can look at the progressive paternity leaves of many countries. In Finland, “Paid paternity leave” refers to the three weeks of fathers-only leave that can be taken concurrently with the mother. The remaining six weeks are referred to as “father-specific parental leave” weeks because they cannot be used while the mother is on leave and are often taken after it.[7] Parental leave is paid for sixteen months in Sweden. Certain nations mandate paternity leave for their workers. Chile mandates that all fathers take 5 days of paternity leave within the first month of the child’s birth.[8] In Portugal, mothers are required to take a 15-day leave of absence, which must be used within 30 days of the child’s birth.[9] Iceland’s parental leave policy is for nine months, of which three months are used for paternity leave.[10] The initiative taken by Sweden, Norway, Denmark, and Iceland is worth applauding and should inspire other nations to draft their laws for paternity leave.

Why paternity leave?

It is often questioned why men should take time off from their work when women are there to look after the child. It is a widely held belief that women should care for their children, make use of maternity leave benefits, and perform additional caregiving duties, while men should leave the house to find work and support their families. This belief is prevalent not just in India but throughout the world. The absence of paternity leave strengthens this notion and put an extra burden on women. Moreover, many companies hesitate to hire women, due to maternity leave available to them, and as they learn the woman has a family or intends to apply for maternity leave, their contract with her is revoked.[11] The relationship between the child and their father is further weakened by the lack of parental leave for fathers. The paternity leave as reiterated, will act against assigned gender roles, will empower women, would promote their existence in the workforce, and will act as a catalyst between the relationship of the child and its father.

The absence of paternity leave also violates Article 14 of the Indian Constitution[12] which states that “the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” The lack of parental leave for fathers is workplace discrimination and a violation of a fundamental right as well. However, the government can always formulate laws to protect weaker sections, but the lack of paternity leave laws does not protect anyone but rather snatches the right of a father to spend some time with his family. Hence, the absence of paternity leave is workplace discrimination, which creates a gender barrier and violates the fundamental right of men.

Suggestion

It’s the 21st century, and now it’s high time for equality, and there’s a dire need for laws related to paternity leave. The lack of paternity leave has lots of issues, hence the government of India should bring laws that not only include central government employees, rather every employee. The laws which will deal with paternity leave should not only benefit a single father who is a divorcee or widower or has adopted a child but rather every father. It should not discriminate against live-in partners. The government can also include leaves which can be transferable to either parent, the one who wants to take care of the child. Parents in Hungary have access to 156 weeks of shared leave. Until the child turns two years old, one parent may take additional time off.[13] The laws that will be created should ensure that no employee will experience any sort of discrimination.

Conclusion

It is time to acknowledge that both men and women are capable of providing for their families. The parents cannot be discriminated against because of the pre-assigned roles dictated by society. It not only forces the mother to be the caretaker and leave their job but also compel men to be a breadwinner, which may weaken the bond between the child and father. Apart from this it also violates Article 14[14] of the Constitution and causes workplace discrimination. The government needs to move quickly to enact paternity leave rules that will empower fathers who wish to stay at home and care for their children without feeling ashamed while also easing the strain on women. To conclude now is the best time to recognize ambiguity in our laws and formulate laws that bring uniformity, let go of gender biases, and equality.

 Author(s) Name: Ananya Singh (Institute of Law, Nirma University)

Reference(s):

[1] 40% of Managers Avoid Hiring Younger Women to Get around Maternity Leave’ (The Guardian, 11 August 2014) <https://www.theguardian.com/money/2014/aug/12/managers-avoid-hiring-younger-women-maternity-leave>  accessed 10 July 2023

[2] A. Dhanuka and K. Banthia, ‘Paternity Benefit Leaves in India: Need, Cost  and Gender Reform’ (2021) 1 International Journal of Policy Sciences and Law <https://ijpsl.in/wp-content/uploads/2021/09/Paternity-Benefit-Leaves-in-India-Need-Cost-and-Gender-Reform_Ananya-Dhanuka-Kashish-Banthia.pdf> accessed 10 July 2023

[3] Central Civil Services (Leave) Rules 1972, r 551(A)

[4] R Gummadi, ‘Paternity Leave Policy in India: A Critical Analsysis’ (2021) 4 (3) International Journal of Law Management & Humanities <https://www.ijlmh.com/wp-content/uploads/Paternity-Leave-Policy-in-India-A-Critical-Analysis.pdf> accessed 10 July 2023

[5] Chander Mohan Jain v N.K. Bagrodia Public School (2009) SCC OnLine Del 2693

[6] R Gummadi (n 4)

[7] ‘Parental Leave Systems’  (OECD) <https://www.oecd.org/els/soc/PF2_1_Parental_leave_systems.pdf> accessed 10 July 2023

[8] María Del Carmen Huerta, et. al., ‘Fathers’ Leave, Fathers’ Involvement and Child Development Are They Related? Evidence from Four OECD Countries’ (2013) OECD Social, Employment and Migration Working Papers < https://doi.org/10.1787/5k4dlw9w6czq-en> accessed 10 July 2023

[9]A Mukherjee, ‘Analysis of “Paternity Leave” in India’ 5 International Journal of Law) Management & Humanities (2022) 5 (2) < https://www.ijlmh.com/paper/analysis-of-paternity-leave-in-india/> accessed 10 July 2023

[10] R Gummadi (n 4)

[11]‘The Big Story 1: Outlook Business’ (Outlook Business) <https://www.outlookbusiness.com/the-big-story-1/lead-story-8/failing-women-with-fine-intent-6729>  accessed 10 July 2023

[12] Constitution of India 1950, art 14

[13]A Dhanuka (n 2)

[14] Constitution of India 1950, art 14