Message from the Chair

• Publication year: 2023
• Author: Scott Stillman

MESSAGE FROM THE CHAIR

AUTHOR^*

Scott Stillman

THE FMLA TURNS 30

Imagine that your child gets diagnosed with cancer, requiring her left leg to be amputated and chemotherapy to begin immediately. You obviously take time off of work to care for your sick child, but there is no law guaranteeing you the right to get your job back after taking leave. In response to taking time away from work, your employer terminates you. While I wish this situation was never a reality, it sadly was for George and Vicki Yandle when their youngest daughter, Dixie, was diagnosed with cancer in 1987. The Yandles both took leave and were both fired.¹ Six years later, in 1993, the Yandles were in the Rose Garden at the White House for the bill signing ceremony of landmark legislation-the Family and Medical Leave Act (FMLA)²-which aimed to prevent what the Yandles endured.³

2023 marks the FMLA's 30th anniversary. The FMLA requires employers with 50 or more employees to provide up to twelve weeks of unpaid job-protected leave in a twelve-month period for covered employees with a qualified medical or family reason. While the FMLA is not without its faults, as discussed more below, it is hard to underestimate the significant impact of this federal legislation. One study estimates that since its passage, the FMLA has been used 463 million times by employees.⁴ In February 2023, during a press conference celebrating the FMLA's 30th anniversary, then-Labor Secretary Marty Walsh explained what the FMLA has meant to everyday lives over these past thirty years:

"[The FMLA] means that a parent does not have to choose between keeping a job and caring for their newborn. It means that an injured or seriously ill servicemember or veteran knows that they can rely on a loved one to take care of their needs. It means that a person living with a serious health condition can take time off of work to heal or to seek necessary medical care."⁵

THE EFFORTS TO ENACT THE FMLA

Although the FMLA may not seem controversial now, it was nearly a decade-long effort to get it passed. Indeed, the history behind passing the FMLA is fascinating and worth revisiting on this notable anniversary.

The FMLA's origin story is linked to our great state, California. In 1984, a California federal district court struck down a California law requiring employers covered by Title VII to grant pregnancy disability leave of up to four months to their employees. The district court found that the California law discriminated against men on the basis of pregnancy. Although the Ninth Circuit would ultimately rule the district court's conclusion "defies common sense, misinterprets case law, and flouts Title VII and the [Pregnancy Discrimination Act]"⁶ (and the U.S. Supreme Court would affirm the Ninth Circuit's ruling⁷), the district court's decision inspired a meeting between leaders of the women's movement and legislators, including Congressman Howard Berman from California and then-California state legislator Maxine Waters.⁸

Following that meeting, Donna Lenhoff, Legal Director of the then-Women's Legal Defense Fund, worked with a staffer from Congressman Berman's office to draft a legislative proposal that would lead to the first version of the FMLA.⁹ Ms. Lenhoff explained that there were three main themes informing the genesis and substantive framework of the FMLA's initial draft:

1. while there were state- or employer-specific leave programs, the U.S. differed from nearly every other industrialized nation at the time by not having a national policy providing for a woman's right to return to her job after maternity leave;


2. "mom only" leave policies did not align with gender equity principles, reinforced stereotypical gender roles and gave employers reason for not hiring or promoting women; and

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3. existing leave programs failed to address needs for family leave beyond periods of childbirth-related disability.¹⁰

According to Ms. Lenhoff, "[t]he FMLA was thus conceived and structured as a way of both addressing women's maternity-leave needs and establishing...