Before we, as a nation, can truly say that equal human rights are honored and exercised, several hurdles must be overcome. Among those hurdles is enacting a policy for paid maternity leave. The United States is the only advanced country that does not guarantee paid maternity leave to workers, and the battle for such has been ongoing for decades.
Progressive Era supporters of women-only protective laws often spoke of future motherhood, but the laws only distanced prospective mothers from the workplace. Six state laws enacted before 1920 barred employment of women for several weeks before or after childbirth.
The prolonged struggle for paid maternity leave began when the protective laws for women workers were overturned in the wake of Title VII of the Civil Rights Act of 1964, which prevented employment discrimination on the basis of sex. While all labor standards had to apply to men and women alike, workplace pregnancy soon became an issue wrestled by courts and legislatures.
In Cleveland Board of Education v. LaFleur (1974) and a companion case, public school teachers challenged regulations that forced them to leave work months before their expected childbirths. The Supreme Court found that they had been denied due process rights and that employers should not bar pregnant women from work. However, the question of whether pregnant workers were entitled to benefits ensued.
In Geduldig v. Aiello (1974), the Supreme Court permitted California to exclude pregnant women from the state’s disability plan for public sector employees, claiming that the exclusion did not violate the equal protection clause. Similarly, in General Electric v. Gilbert (1976), the Supreme Court upheld a company plan that paid workers part of their wages for short-term disability, except for pregnancy.
Under pressure from women’s rights advocates, Congress passed the Pregnancy Discrimination Act of 1978. Pregnant workers were to be treated the same as others not so affected, but similar in their ability or inability to work for all employment related purposes, including benefit programs. The PDA suffered litigation as other clashes arose, like the case of California Federal Savings and Loan v. Guerra (1987), in which the Court upheld a state law enabling women access to their former jobs after pregnancy leave.
After several attempts to enact parental leave plans were met by presidential vetoes, Congress stepped in, and lawmakers passed the Family and Medical Leave Act of 1993. It required employers of fifty or more to provide up to twelve weeks of unpaid leave with job protection to employees who had to care for family members, including infants and sick children.
Although the FMLA broadened the reach of pregnancy leave to cover both male and female workers and deconstructed pregnancy into disability and caring for others, it was a partisan measure that never won Republican support. To opponents, the FMLA disadvantaged employers because any leave arrangements should be voluntary not compulsory.
The FMLA also had limits in practice compared to multi-month paid maternity leaves in European nations. It failed to reach about half of the employed, including workers in part-time or contingent jobs, or recently hired, those in small workplaces, and those who could not afford to take unpaid leaves.
Some large companies with well-compensated staffs began to provide parental leave, and Rhode Island, California, and New Jersey funded short-term paid family leaves through payroll taxes on employees. However, bills to provide paid leave to federal workers sank in Congress.
During President Obama’s State of the Union speech in January 2015, he directed federal agencies to give employees up to six weeks of paid leave after the birth or adoption of a child and called on Congress to start a $2.2 billion incentive fund to reimburse states that initiate paid leave programs and to provide grants to states that strive to create such.
While the President’s proposal has been met with opposition, it is the next step. Sadly, broad-based policies with potential appeal to mean, funded by state disability insurance plans with federal help, remain the best prospect for providing access to paid parental leave.