Work-life issues have taken center stage in the first month of the country’s new administration. President Obama’s campaign platform included a specific “Plan to Support Working Families and Women,” and just a few weeks ago Michelle Obama appointed Jocelyn Frye, general counsel of the National Partnership for Woman and Families, as her Policy Director.
Many advocacy groups have high hopes that the protections of FMLA and/or Pregnancy Discrimination Act are eventually broadened. In the meantime, however, legal protection in the work-life balance area is limited. Unlike most other industrialized nations, pregnant workers in the United States are afforded no special protections, employers are required only to treat pregnant workers no worse than other temporarily disabled employees.
Pregnancy is not (absent unusual complicating conditions) a disability that must be “accommodated.” Federal law provides little in the way of benefits to pregnant employees to make it easier for them to have a baby and then go through a bonding period.
In order to state a pregnancy-discrimination claim, an employee has to either provide direct evidence of discrimination on the basis of her pregnancy (“You’re fired because the business can’t handle any more pregnant employees”), or point to similarly-situated, temporarily disabled workers who were treated better. Such evidence often proves elusive. Rarely in my practice have I seen claimants who can produce the “male with a back injury” who was treated differently, as provided in a hypothetical example in the Pregnancy Discrimination Act regulations.
FMLA’s coverage is limited—protecting only employers with 50 or more employees, and only employees who have worked 12 months or more with that employer. And of course, even if you’re an employee covered by the FMLA, the law does not require that the employer pay for any part of your 12-week leave, only that you may take the leave (unpaid), and can return to your job. Many employees cannot afford to take unpaid leave, rendering this benefit illusory.
Work-life accommodations, therefore, including pregnancy leave, are left largely to the employer. Paying for a portion of FMLA leave, allowing additional time before a new mother has to return to work, or allowing flexible schedules are all examples of accommodations left to the employer’s discretion. In good economic times, such benefits were often viewed as necessary to compete in the marketplace to attract and retain the best employees. It has been widely covered in the press that Gen Y (males and females alike) places a greater value on work-life balance than their predecessors, and this has been another factor in encouraging employers to exercise their “benevolence” in these areas..
All of this may change with the new economy, when people are happy just to have a job, and employers don’t feel compelled to offer any special perks to attract or keep them. I am reminded of a boss I once had who, when asked how he motivates employees, responded “I tell them if they don’t do their job they’ll get fired.” In the legal industry, it’s already being reported that associates are working more billable hours to earn their keep and keeping mum about work-life balance.
Our friend, John Phillips of The Word on Employment Law, recently wrote a provocative post (Candace Parker and Pregnancy Discrimination), and follow-up post (Career vs. Childbearing), on the news that Candace Parker, “the face of the WNBA,” announced her pregnancy, apparently upsetting fans and teammates and prompting some to call her “selfish.” As noted by John,
In the 21st century, calling female employees who have children irresponsible, selfish, or not good for business is a bit disconcerting, not to mention illegal. We often talk and hear talk about family values. That means different things to different people, but whatever it means usually involves children.
Let’s hope the notion that pregnancy or work-family balance is “bad for business” does not become more widespread in this economic downturn, not only slowing down progress in this area, but sending us backwards.