The Anti-Discrimination Roots of “Family and Medical Leave”
By Kumar Ramanathan | November 5, 2021
Kumar Ramanathan is a Ph.D. candidate in political science at Northwestern University.
Amid debates over the paid leave proposal in Democrats’ “Build Back Better” bill, many commentators have noted how the United States is an international outlier in its leave policy. The U.S. is one of only a handful of counties to not guarantee any paid maternity leave, and lags far behind peer countries in providing paid medical leave. However, as the New York Times recently noted, U.S. leave policy is also distinctive in its “broad definition of family and caregiving.”
This broad definition is embedded in the Family and Medical Leave Act of 1993 (FMLA), which requires employers to provide 12 weeks of unpaid leave for workers during pregnancy, illness, caregiving for a newborn, or caregiving for an ill family member. When the FMLA was enacted, most OECD countries already guaranteed paid maternity and medical leave—but only about two in five guaranteed paternity leave. Paternity leave is now much more common across the world, but the U.S. remains unusual in having a strictly gender-neutral policy. Leave to care for ill family members is even more unusual and piecemeal, with many peer countries not guaranteeing such leave at all to this day.
How did the United States develop such a distinctive approach to leave policy, despite lagging so far behind on paid leave?
How did the United States develop such a distinctive approach to leave policy, despite lagging so far behind on paid leave? My research traces how this policy design emerged as a result of advocates’ creative use of civil rights claims during the 1970s-90s. Decades after the passage of the FMLA, advocates’ pursuit of a gender-neutral and broad coverage policy design continues to have a strong legacy in shaping paid leave proposals.
From civil rights to leave policy
Soon after the International Labor Organization (ILO) issued recommendations on maternity leave in 1919, many industrialized countries began creating their own programs, often through a tax-funded social insurance model. American activists were involved in ILO deliberations, but they had almost no success on the home front. A few U.S. states created paid medical leave programs (then called “temporary disability insurance”) in the 1940s, but these generally excluded pregnancy and no national program was enacted. Labor groups and feminist activists continually pushed for maternity leave provision, only to face near misses and stalled campaigns. A 1960 report from the U.S. Women’s Bureau summarized the bleak situation in the United States: no states required job-protected maternity leave, only one provided meager pay during leave, and six even required mandatory leave for pregnant women without any job security or pay. As such, employers frequently dismissed pregnant workers without a guarantee that they could return to their job.
For advocates of maternity leave, a new opportunity emerged with the passage of the Civil Rights Act of 1964, whose Title VII included a prohibition on sex discrimination in employment.
For advocates of maternity leave, a new opportunity emerged with the passage of the Civil Rights Act of 1964, whose Title VII included a prohibition on sex discrimination in employment. Some advocates argued that sex non-discrimination required the provision of maternity leave. Notably, in a 1970 report, the Citizens’ Advisory Council on the Status of Women argued that anti-discrimination meant employers had to treat pregnancy in the same way as any “temporary disability,” meaning that any sick leave policy should also be available to pregnant workers. Amid continuing pressure from feminist activists, the agency charged with enforcing Title VII, the Equal Employment Opportunity Commission (EEOC), adopted this logic in 1972.
Armed with this new regulation, labor and feminist advocates pressured employers to extend their sick leave policies to pregnant workers. Many states passed their own sex discrimination laws and issued similar regulations on pregnancy leave. Eight states went even further, requiring that employers provide a period of job-protected pregnancy leave regardless of what benefits they provided to otherwise sick workers.
However, this anti-discrimination approach to expanding maternity leave provision was soon challenged in the courts. In a 1976 case, the Supreme Court overturned the EEOC regulation and argued that the Civil Rights Act did not guarantee any protections on the basis of pregnancy. The ruling set off a firestorm among advocates, who organized a broad coalition under the banner of the “Campaign to End Discrimination Against Pregnant Workers.” They found quick success with the enactment of the Pregnancy Discrimination Act of 1978, which amended the Civil Rights Act to require that pregnancy be treated the same as temporary disability.
In the 1980s, opponents of leave policies, led by pro-business interest groups, turned civil rights claims against maternity leave advocates. In Montana and California, opponents challenged pregnancy leave laws which required employers to provide a specified period of leave. They argued that these statutes required them to provide special benefits to pregnant workers, thereby violating the equal treatment required by the Pregnancy Discrimination Act. These cases splintered groups in the advocacy coalition, who differed in how to reconcile the state laws and the anti-discrimination standard.
A group of advocates led by the Women’s Legal Defense Fund instead turned to Congress in 1984 to seek a more permanent resolution. Working closely with the Congressional Caucus for Women’s Issues, they drafted a bill that would require employers to provide unpaid leave during childbirth, illness, and caregiving for a new child. Since childbirth and illness could be analogized and both men and women could take caregiving leave, the proposal was strictly gender-neutral and commensurate with the Pregnancy Discrimination Act.
Working closely with the Congressional Caucus for Women’s Issues, advocates drafted a bill that would require employers to provide unpaid leave during childbirth, illness, and caregiving for a new child. Since childbirth and illness could be analogized and both men and women could take caregiving leave, the proposal was strictly gender-neutral.
The bill faced an uphill battle throughout the 1980s, with stiff opposition from Republicans and pro-business interest groups in an era of welfare state retrenchment. Advocates were committed to a strictly gender-neutral policy, despite some members of Congress periodically pushing for a maternity-only approach. They also decided early on not to pursue paid leave, believing that they would not be able to win enough support among legislators. As the legislative fight continued, the approach of pooling different types of leave enabled the inclusion of leave to care for ill parents and spouses. This had the advantage of drawing groups like the AARP, who were concerned about the caregiving needs and responsibilities of the elderly, into the advocacy coalition.
After many compromises on benefits and eligibility and two vetoes from President Bush, the Family and Medical Leave Act passed in 1993 and was signed by the newly inaugurated President Clinton.
Fighting for paid leave
Gender-neutrality and broad coverage have characterized leave policy in the U.S. since the 1990s. Since 2002, nine states and D.C. have passed paid leave laws, all of which adopt the gender-neutral design and broad coverage of the FMLA (and some of which expand coverage to even more types of leave). Since 2013, a group of congressional Democrats including Rep. Rosa DeLauro (D-CT) and Sen. Kirsten Gillibrand (D-NY) have proposed federal legislation that would layer paid leave funded by payroll taxes onto the FMLA. When the Trump administration proposed a pared down parental-leave-only plan in 2017, advocates firmly opposed it and argued for an “inclusive” plan.
The fight for paid leave has taken on renewed urgency in recent months. As the federal government created a temporary paid leave program for COVID-19-related needs in 2020, advocates continued to push for a comprehensive paid leave policy. This year, Democratic party leaders sought to include a 12-week paid leave policy with gender-neutral and broad coverage features in their omnibus “Build Back Better” bill. Amid resistance from Sen. Manchin (D-WV), White House officials first floated reducing leave duration and eventually dropped paid leave from their proposal, although advocates and some congressional allies continue to fight for its inclusion.
The historical development of U.S. leave policy shows how important features of social policy design can emerge during periods of retrenchment, through creative coalition-building and the application of established standards to new venues. The anti-discrimination approach had limitations, however, in providing a bridge to pursuing paid leave. As the ongoing pandemic has underscored, the stakes of a broad and inclusive paid leave policy are high. Whether advocates can persuade Congress to take the next step in guaranteeing paid leave remains to be seen.
Kumar Ramanathan is a Ph.D. candidate in political science at Northwestern University and a Doctoral Fellow at the American Bar Foundation.