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Article

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Presented at the 5th Inter-University Graduate Student Conference at Cornell Law School, March 2009.

Abstract

This paper presents an ideal legislative model for South Korea to realize gender equality in reconciling work and childcare. The comparative study on the U.S. and German system is the basis for the legislative model. This paper selects the U.S. and German systems as a comparison group because they are representing the equal treatment approach and special treatment approach in the feminist legal theory. The current system in South Korea fails to realize gender equality because it provides maternity leave exclusive to women to limit women’s right to work and lacks financial support for parental leave. Maternity leave limits women’s right to work because it obligates employers to pay women on maternity leave and prohibits women from working after childbirth. The lack of financial support for parental leave forces women to take leave instead of men because the gender wage gap and sex role stereotyping require full remuneration as a precondition to guarantee equal opportunities for men and women to participate in childcare in practice. Therefore, the current system in South Korea is not enough for gender equality in reconciling work and childcare.

The U.S. system guarantees the gender neutral parental leave system. The gender neutral parental leave purports to eliminate discriminatory practices in granting leave for childcare to men and women in the state level. Before the enactment of the gender neutral parental leave system in the federal level, individual States conferred maternity and paternity leave discriminatorily. They were more generous when providing maternity leave than paternity leave. To cease the state-sponsored gender discrimination, Congress adopted the gender neutral parental leave system instead of maternity and paternity leave as distinctive systems.

However, the U.S. system lacks financial support for parental leave. In the federal level, the U.S. system does not provide payment for childcare. Instead, individual States and employers provide partial remuneration for childcare. The lack of financial support in the federal level weakens the original legislative intent of the gender neutral parental leave system. Furthermore, without full remuneration, partial remuneration does not fully effectuate the gender neutral parental leave system as an antidiscrimination regime due to the gender wage gap and sex role stereotyping. Therefore, South Korea should not follow the lack of financial support in the U.S. system.

In contrast to the gender neutral parental leave system in the United States, the German system guarantees maternity leave exclusive to women without paternity leave for men. Maternity leave limits women’s right to work because it forces women to stay at home after childbirth in the name of protection. The German system justifies the mandatory maternity leave by procuring full remuneration throughout the leave period. However, the mandatory maternity leave system in Germany is not an ideal model for South Korea because it does not consider individual women’s physical differences which require different periods for recuperation. Therefore, maternity leave without paternity leave in the name of protecting women’s reproductive health women’s right to work.

Despite the adverse impact of maternity leave in the German system, the financial support during parental leave which reflects actual lost income is an ideal model for South Korea. The German system guarantees two-thirds of actual lost income as parental benefits which encourage men to participate in childcare. However, it still does not guarantee full remuneration. Therefore, the reflection of actual lost income is a positive aspect of the German system but full remuneration is still required for gender equality in South Korea.

Date of Authorship for this Version

March 2009

Keywords

Childcare, South Korea, Germany, United States

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