Gradual return to work: maximizing benefits to corporations and their caregiver employees.

AuthorGrabe, Erin M.
  1. Introduction II. Background A. Pregnancy Discrimination Act 1. Title VII Protection 2. Court Interpretations of PDA B. Family and Medical Leave Act 1. FMLA Protection 2. Court Interpretations of FMLA III. Analysis A. State Action 1. Extended Employer Coverage 2. Paid Leave Benefits B. Foreign Policies 1. Financing Paid Leave Worldwide 2. Part-Time or Gradual Return Options C. Business Models 1. Results-Only Work Environment 2. Open Work 3. 4/40 Workweek 4. Gradual Return to Work Policy IV. Recommendation A. FMLA Expansion B. Corporate Reform V. Conclusion I. INTRODUCTION

    Federal legislation, though it attempts to help working caregivers with growing families, leaves much to be desired by both parents of new children and their employers. Congress passed the Family and Medical Leave Act (FMLA) nearly 19 years ago with the intent to provide eligible working parents long-term job and insurance security after childbirth or adoption. (1) Though its passage was a milestone event for working caregivers in the United States, its framework provides little room for the nuanced needs of America's families. (2) As one scholar notes, for many families, the 12 weeks of unpaid leave can actually force them "into a cycle of economic distress." (3) Scholars advocating reform debate what changes would be most beneficial both for the individuals taking leave and the corporations they work for, but all agree that until some changes are made, many families cannot afford to take advantage of the protection the FMLA currently provides. (4)

    Part II of this Note outlines current relevant legislation, including the Pregnancy Discrimination Act (PDA) and the FMLA, and includes court interpretations of these Acts. Part II also focuses on how the Acts work together to protect working women with children. (5) Part III analyzes how different bodies--states, countries, and private corporations--have addressed family leave and examines alternatives to the Acts. Finally, Part IV suggests that a gradual return to work program is the most efficient and beneficial reform option.

  2. BACKGROUND

    According to the Bureau of Labor Statistics, the number of mothers in the workforce has increased dramatically over the past few decades. (6) In 1975, mothers with children under the age of 18 had a workforce participation rate of 47%. (7) That number rose steadily over the years to 71% in 2008. (8) Though the number of working mothers has grown, employment policies and federal laws and regulations lag far behind the statistical growth of the U.S. workforce. (9) In the past, the government has responded by creating two forms of legal recourse: anti-discrimination laws and mandated benefits laws. (10) The PDA represents anti-discrimination legislation and is the federal government's attempt to end stereotypes and biases against pregnant working women. (11) The FMLA represents mandated benefits legislation and is an attempt to set a floor for minimum acceptable standards for working caregivers. (12)

    1. Pregnancy Discrimination Act

      Title VII of the Civil Rights Act of 1964 states in Section 703(a)(1) that it is unlawful for an employer "to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." (13) After its enactment, a majority of federal district and appellate courts ruled that cases of discrimination based on pregnancy fell under this protection, (14) yet the Supreme Court held otherwise. (15) For example, in General Electric Co. v. Gilbert, (16) the Supreme Court ruled that exclusion of pregnancy from General Electric's disability insurance coverage did not constitute sex discrimination in violation of Title VII. (17) Prior to this decision, the Court held in Geduldig v. Aiello (18) that a state insurance program that excluded normal pregnancy from its disability coverage did not violate the Equal Protection Clause of the Fourteenth Amendment. (19) The Court in Gilbert reasoned the similarities in language between Title VII and the Equal Protection Clause indicated a similar analysis was proper. (20) Thus, in line with the Geduldig holding, the Court held there was "no more showing in this case than there was in Geduldig that the exclusion of pregnancy benefits is a mere 'pretex(t) designed to effect an invidious discrimination against the members of one sex or the other.'" (21)

      In 1978, Congress enacted the PDA, an amendment of the Civil Rights Act of 1964. (22) The PDA was a direct reaction to the Supreme Court's decision in General Electric Co. v. Gilbert. (23) The PDA states that sex discrimination includes discrimination "because of or on the basis of pregnancy, childbirth, or related medical conditions," (24) and that those individuals "shall be treated the same for all employment-related purposes ... as other persons not so affected but similar in their ability or inability to work...." (25)

      1. Title VII Protection

        Courts analyze PDA claims like general Title VII claims. (26) A plaintiff must establish a prima facie case for discrimination either by "direct evidence, statistical proof," or through the McDonnell Douglas test. (27) The burden then shifts to the employer who must articulate "a legitimate, nondiscriminatory reason for the employment action." (28) If the employer so demonstrates, the burden shifts back to the plaintiff, who "then has an opportunity to prove that the proffered explanation is pretextual." (29)

      2. Court Interpretations of PDA

        In UAW v. Johnson Controls, Inc., (30) the Supreme Court held that the PDA bars discrimination based on pregnancy as well as potential pregnancy. (31) In that case, the employer had a policy that stated women could not work in certain lead-exposed jobs unless they could medically prove they were unable to bear children. (32) The Court stated that "in using the words 'capable of bearing children' as the criterion for exclusion, the policy explicitly classifies on the basis of potential for pregnancy, which classification must be regarded, under the PDA, in the same light as explicit sex discrimination." (33)

        Though the PDA gave pregnant women Title VII protection from discrimination, it did not provide standards for maternity leave. Stout v. Baxter Healthcare Corp. highlights this problem. (34) In Stout, a pregnant employee went into early labor and suffered a miscarriage and missed more than three days of work in violation of the employer's absence policy. (35) As a result, the employer fired the employee. (36) The employee claimed pregnancy discrimination under the PDA. (37) However, the court held the employer's termination policy for missing more than three days of work applied equally to both pregnant and non-pregnant employees. (38) The court stated, "the PDA does not protect a pregnant employee from being discharged for being absent from work even if her absence is due to pregnancy or to complications of pregnancy, unless the absences of nonpregnant employees are overlooked." (39)

    2. Family and Medical Leave Act

      President Clinton signed the FMLA in 1993. (40) The purpose of the Act was "to balance the demands of the workplace with the needs of families, to promote the stability and economic security of families, and to promote national interests in preserving family integrity." (41) The FMLA entitles eligible employees to a total of 12 weeks unpaid leave during any 12-month period because of any one of five reasons. (42) The first three reasons, termed the "family care" provisions, provide leave:

      (A) Because of the birth of a son or daughter of the employee and in order to care for such son or daughter. (B) Because of the placement of a son or daughter with the employee for adoption or foster care. (C) In order to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition. (43)

      The Senate Report on the FMLA reveals that a drastic change in workforce demographics was a major motive behind the FMLA's enactment. (44) The Report states, "Private sector practices and government policies have failed to adequately respond to recent economic and social changes that have intensified the tensions between work and family." (45) It notes the radical increase of women in the workforce leading up to the FMLA's enactment. (46) The Report also recognizes that without the FMLA, "many new parents have no guarantee that their jobs will be protected either when they are unable to work due to pregnancy ... [or] childbirth...." (47)

      1. FMLA Protection

        The FMLA statute reads, "It shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise" any right provided under the FMLA. (48) The FMLA provides relief similar to the federal Fair Labor Standards Act, as an employee may bring an action in state or federal court for lost compensation and damages. (49) Analyzing an FMLA claim depends on whether the petitioner is bringing an interference claim or a retaliation claim. (50) An employee brings an interference claim when she wishes to assert that her "employer denied or otherwise interfered with [her] substantive rights under the [FMLA]...." (51) An employee brings a retaliation claim when she asserts that her "employer discriminated against [her] because [she] engaged in activity protected by the [FMLA]." (52)

        To establish that an employer has interfered with an employee's protected FMLA leave, the plaintiff first brings forth the claim, and then the burden shifts to the employer to show that the adverse action would have occurred regardless of the employee's request to take or actual use of FMLA leave. (53) In contrast, in order to analyze a retaliation claim, most circuits use a form of the McDonnell Douglas burden-shifting scheme. (54) Courts use the McDonnell Douglas method because the discrimination element in a retaliation claim...

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