6 4 on the work enhancing side there is no evidence

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6 4 On the work-enhancing side, there is no evidence that FMLA has increased employment equality between men and women. 65 On the family-enhancing side, many employees are unable to take advantage of the opportunity to spend time with new children because taking unpaid leave is not feasible. 66 From 61. Bhushan, supra note 2, at 689 (noting that among eligible employees who did not take leave under FMLA, 78% based that decision on their inability to take unpaid time off from work). 62. Recent Regulation-Employment Law-Family and Medical Leave Act of 1993-Department of Labor Regulations Alter Substitution of Paid Leave Provision Under the FMLA.-FMLA Final Rule, 73 Fed. Reg. 67,934 (Nov. 17, 2008) (codified at 29 C.F.R. pt. 825 (2009)), 123 HARV. L. REV. 604, 604 (2009). 63. Cf. id. at 607 (noting that, despite employee advocate objections that the revision would disadvantage employees who cannot afford to take unpaid leave, the Department promulgated the regulation and stated that "the FMLA is an unpaid leave statute that does not convey the right to the paid leave that workers may have accrued"). 64. See Arianne Renan Barzilay, Back to the Future: Introducing Constructive Feminism for the Twenty-First Century-A New Paradigm for the Family and Medical Leave Act, 6 HARV. L. & POL'Y REV. 407, 412-14 (2012) (arguing that although the FMLA intended to "protect caretaking when in conflict with market work," it fails to alleviate caretaking conflicts because eligible employees cannot afford to take unpaid leave, and it fails to alleviate workplace conflicts because it perpetuates women's second-class status in the workforce). 65. Id. at 433. 66. Id. at 432. 20151
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HOUSTON JOURNAL OF INTERNATIONAL LAW this perspective, FMLA is failing to fulfill its purpose of "balanc[ing] the demands of the workplace with the needs of families." 67 Furthermore, unpaid family leave perpetuates the problem of female poverty in the United States. 68 Women continue to carry more of the burden of childcare responsibilities, yet women are also less likely than men to have access to paid parental leave. 69 Women also tend to have lower incomes than men, so taking unpaid leave is more burdensome for women who are at a financial disadvantage even before taking leave. 70 As a result of these factors, although women are more likely than men to need leave during and after pregnancy, women are less likely to be able to take leave without facing harsh financial consequences; the realities for households run by single mothers are particularly dire. 71 3. Gender neutrality In addition to the resistance of the business sector during the formulation of FMLA, much debate likewise focused on the bill's gender inclusivity, particularly regarding concerns of implementing a family leave law that would discriminate against men. 72 Historically in the United States, the passage of laws that benefit women in order to remedy some aspect of gender inequality frequently has not occurred without extending equal benefits to men.
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