The Leadership Conference on Civil and Human Rights

October 1985: Volume 1, Number 2

Job-Protected Leave For Working Parents

The United States is the only industrialized nation without a legal entitlement to some form of maternity or temporary disability leave. At least 75 countries have paid coverage for women who leave work to have children; some even provide paid leave for new fathers. In this country, there is no consistent federal policy to deal with childbearing in the work force, even though it is estimated that 85 percent of American working women will become pregnant during their lives. What does exist is a piecemeal approach to the problem. Only forty percent of women in the U.S. work for employers who provide paid leave for the minimum six to eight week childbirth recovery period recommended by most obstetricians. Only five states, California, Hawaii, New Jersey, New York, and Rhode Island, have mandatory temporary disability insurance programs that include pregnancy. While 72 percent of employers in a 1981 survey allowed women an unpaid job-protected "maternity" leave, only 36 percent provide leave for new fathers a ccording to a 1984 Preliminary Report by Catalyst, an organization that assists corporations in developing policies for working parents.

The Parental Disability and Leave Act of 1985 (H.R. 2020), introduced by Congresswoman Patricia Schroeder (D-Co.) on April 4, 1985, would guarantee employees the right to take parental and temporary disability leave without losing their jobs. The Act, known as PDA 11, provides for a minimum of six months of unpaid leave for pregnancy-related or other temporary medical disabilities and a minimum of four months of unpaid leave for parenting of newborns, newly-adopted children or seriously ill children. The legislation would also establish a commission to study and recommend the implementation of a national policy on paying employees during periods of parental and temporary disability leave. The bill was referred to the Committees on Education and Labor, and Post Office and Civil Service, joint oversight hearings were held on October 17, and legislative hearings will be scheduled early in 1986.

Legally, the PDA 11 would resolve some current problems in the interpretation of the Pregnancy Discrimination Act of 1978 (PDA). The PDA amended Title VII of the Civil Rights Act of 1964 to define sex-based employment discrimination to include pregnancy discrimination. Under the PDA, a woman who is temporarily disabled due to pregnancy or childbirth is entitled to the same benefits and leave provided to other temporarily disabled employees.

However, the PDA is solely an anti-discrimination statute; if the employer chooses to provide no benefits or leave for temporary disabilities, then similarly women are not entitled to leave or benefits. Acting to fill the gap in maternity coverage created by employers who have inadequate leave and benefit policies, a few states, including California, Connecticut and Montana, have passed protective legislation to require employers to grant pregnant women leaves of absence for childbirth.

Recently, some of these state maternity laws have been challenged as violative of the Pregnancy Discrimination Act, because, it is argued, these protective laws favor pregnant women over nonpregnant persons. The U.S. Ninth Circuit Court of Appeals recently rejected such an argument in California Federal Savings and Loan Association v. Guerra, 758 F. 2d 390 (1985). The court upheld as consistent with the PDA a California statute requiring an unpaid four-month job-protected leave for pregnancy and childbirth-related disabilities. A Montana State Supreme Court decision upholding the Montana maternity leave statute is currently on appeal in the United States Supreme Court, Miller-Wohl Co. v. Commissioner of Labor and Industry, 692 P. 2d 1243 (Mont. 1984), petition for cert. filed, 53 U.S.L.W. 2367 (1 S. Mar. 27, 1985)(No.84-1545).

By extending job-protected temporary disability leave to all employees, PDA II would eliminate some of the perceived conflicts between state protective legislation and the federal pregnancy anti-discrimination statute. In addition, by making parental leave a legal right, the new Act would establish an important new federal policy to address the needs of working parents.

Note: Unless otherwise stated, the source for the statistics in this article is Kamerman, Kahn, and Kingston, Maternity Policies and Working Women, (Columbia University Press: 1983). For further information, contact Karen Keegan at LCCR, 2027 Massachusetts Avenue, N.W., Washington, D.C. 20036, (202) 667-1780.