By Kendall Shortway
Swaziland, Lesotho, Papua New Guinea, and the United States of America. These four countries seemingly have nothing in common. Swaziland and Lesotho are located in Africa, Papua New Guinea is in a region of the southwestern Pacific Ocean north of Australia and obviously, the United States is located in North America. Swaziland, Lesotho, and Papua New Guinea all have populations of seven million or less. The United States has a population of 319 million. Swaziland and Lesotho are severely afflicted by HIV/AIDS. Papua New Guinea has the highest incidence of HIV/AIDS in the Pacific region, high infant and maternal mortality rates, and a large proportion of the population is illiterate. The United States, on the other hand, has an extremely advanced health care system and is considered one of the greatest places to live in the world. Swaziland, Lesotho, and Papua New Guinea are all governed by monarchies of some sort while the United States is a democracy. All of the countries, aside from the United States, are developing countries with struggling economies, while the United States has the World’s largest national economy. On paper, these countries could not be more different from the United States. That is, until one examines how these countries deal with maternity leave. In this area, the countries are remarkably similar.
These countries do have one thing in common; they are currently the only four countries across the globe without mandated paid maternity leave. This raises the question, “How is it possible that the United States has found itself with maternity leave policies similar to those of developing countries that struggle to control HIV/AIDS and have problems with literacy?” The United States is an extremely advanced country in many ways; however, it is failing miserably at taking care of those who bear children. In many ways, the answer is pretty clear. The United States’ attitude toward pregnancy in general leaves a lot to be desired. In dealing with this area of policy, the United States fails to protect women both during and after pregnancy. Countries with similar economic and democratic policies all have mandated paid maternity leave and, for the most part, the governments fund these programs.
This paper will look at some examples of how countries similar politically and economically to the United States have handled mandating paid maternity leave for their citizens. In addition, this paper will examine current federal legislation that discusses maternity leave in the United States including the Pregnancy Discrimination Act and the Family Medical Leave Act. In addition, this paper will look at how some states, such as California, have implemented paid maternity leave through state legislation. This paper will scrutinize why the United States is so far behind its world counterparts in mandating paid maternity leave and protecting those who bear children. Finally, this paper will suggest improvements the United States can make in its treatment of pregnancy and childbirth based on research concerning the importance of mothers playing an active role in the growth and development of their infants in the early days after childbirth as well as the effect of mothers returning to work shortly after childbirth on their own health and wellbeing.
II. Comparative Legislation Across Europe
Many of the countries that are similarly structured to the United States are member states of the European Union. The European Union enacts legislation in many different ways to govern its member states. One of those mechanisms is through directives. As the name suggests, the European Union enacts directives that “direct” the member states to pass their own legislation that will implement the policies that the European Union wishes to further. The European Union has given directives on leave for new moms. The policies involve many facets of pregnancy. First, pregnant workers have the right to attend ante-natal appointments during working hours on full pay. Second, women are entitled to take at least fourteen weeks maternity leave before and/or after childbirth and must take at least two weeks leave before and/or after childbirth. Finally, employers must not dismiss a woman who is pregnant and/or on maternity leave except in exceptional circumstances not connected with pregnancy/maternity.
In addition, the European Union has given directives on parental leave. Those policies include that men and women have equal right to at least eighteen weeks’ parental leave for each child. Each Member State has implemented the directives through their own legislation, so the exact language of the legislation varies across the European Union. The European Union directive is also looked at as a floor, not a ceiling. Therefore, the member states are free to make their policies more expansive as long as they sufficiently implement the underlying European Union directives. Most of the member states have expanded on the European Union directives in the area of maternity leave. The following countries provide relevant examples of this.
A. United Kingdom
The United Kingdom, for example, has legislated a mandatory two weeks off, four weeks if you work in a factory, followed by fifty-two weeks maternity leave with “Ordinary Maternity Leave” for the first twenty-six weeks and ”Additional Maternity Leave” for the last twenty-six weeks.  During those weeks of maternity leave, the citizens of the United Kingdom receive “Statutory Maternity Pay,” (SMP) which is paid for up to thirty-nine weeks. The SMP consists of 90% of the employee’s average weekly earnings (before tax) for the first six weeks and £138.18 or 90% of your average weekly earnings (whichever is lower) for the next thirty-three weeks. SMP is paid in the same way as the citizen’s wages: monthly or weekly and tax and National Insurance is deducted. In order to qualify for SMP, the pregnant citizen must earn on average at least £111 a week (or around $174), give the correct notice, provide proof that she is pregnant, and have worked for her employer continuously for at least twenty-six weeks up to the “qualifying week” which is the 15th week before the expected week of childbirth. In addition, the woman will still be entitled to SMP if she has a stillbirth after the twenty-fourth week of pregnancy or her baby dies after birth.
France is another European Union member state that has enacted its own legislation for maternity leave. In France, women on maternity leave receive their full salary for 16 weeks or 26 weeks if it is their third child and up to 34 weeks for multiple births. Maternity and paternity leave is paid by the parent’s local social security office. To be eligible for the payments, the citizen must have registered with the French social security system at least ten months before the expected date of birth and worked at least 200 hours in the three months preceding the date the leave begins, or have earned at least €8,993 in the six months before the same date. French law also provides for parental leave in which fathers are entitled to eleven consecutive days of paternity leave with no loss of pay.
III. Current United States Legislation
The current state of federal legislation in the area of maternity leaves much to be desired. In 1978, Congress amended Title VII of the Civil Rights Act of 1964 to include pregnancy as a prohibited form of sex discrimination. This became known as the Pregnancy Discrimination Act. However, as noted below, this amendment did not do very much to protect pregnant women from discrimination. Then in the early 1990s, the Family Medical Leave Act was passed to provide, among other things, unpaid leave after the birth or adoption of a child for both men and women. A review of these laws shows they are insufficient to protect pregnant workers as well as new parents.
A. Pregnancy Discrimination Act of 1978
In 1978, Congress amended Title VII of the Civil Rights Act of 1964 to include pregnancy as a prohibited form of sex discrimination. The Pregnancy Discrimination Act prohibits employers from taking adverse action against an employee because of pregnancy. If a woman is temporarily unable to perform her job due to a medical condition related to pregnancy or childbirth, the employer must treat her in the same way as it treats any other temporarily disabled employee. The law, for example, may require an employer to provide a pregnant employee light duty, alternative assignments, disability leave, or unpaid leave if it does so for other temporarily disabled employees. However, this also means that if the employer does not provide light duty, alternative assignments, disability leave, or unpaid leave for other temporarily disabled employees, then it does not have to do so merely because of a pregnancy.
Commentators have subjected the Pregnancy Discrimination Act (“PDA”) to harsh criticism for a variety of reasons. One of the largest pitfalls of the Act is that it only requires equal treatment of a pregnant employee with an employee with a temporary disability. “Although it prohibited employers from treating pregnancy any worse than a disability, the law did not require employers to provide any benefits to pregnant women that they did not already provide to other disabled employees.” The end result is that employers can treat a pregnant woman just as poorly as they treat anyone else. If the employer does not accommodate employees with temporary disabilities, then it does not have to do anything “special” for any employee who becomes pregnant. In addition, so long as the policies are “sex-neutral,” they are not actionable under the Civil Rights Act. Clearly however, these policies are “sex-neutral” only facially. Employer policies that insufficiently protect pregnant workers will never harm men, because they will never become pregnant. “Although the PDA ensures gender-neutrality, it clearly harms women in some areas much more than men: most women will become pregnant and give birth at some point in their lives, while no man ever will.”
B. Family Medical Leave Act
In the early 1990’s, Congress enacted the Family Medical Leave Act or FMLA. The FMLA provides for twelve weeks of unpaid maternity leave after the birth or adoption of a child in a twelve month period. Prior to the passage of the FMLA, there was no federal mandate of any type of leave in the United States for parents, specifically mothers, after the birth of infants. However, the FMLA does not provide for any mechanism of pay for the mother who wishes to take the twelve weeks of leave. She can take up to twelve weeks, sans any type of pay. “Employers may require employees, to ’substitute’ accrued paid leave, such as sick or vacation leave, to cover some or all of the FMLA leave period.” Basically, the employer can force an employee into exhausting all of their leave prior to approving a FMLA leave period. This will leave the mother returning to work after her leave period without any leave to use for doctor’s appointments, temporary illnesses, or vacation.
In addition, the FMLA only applies to “covered employers,” or those who employ at least 50 employees who have worked at least 20 weeks of the current or preceding calendar year. The employee must work at a location that has the 50 required employees within 75 miles, so even if employers have more than 50 employees, if they are spread across the country, none of those employees will be eligible for the leave. Also, the employee must have worked for the employer for twelve months prior to the time that they wish to use the leave. The Family Medical Leave Act not only provides for maternity leave, or leave after the birth or adoption of a child, but also for leave to care for sick family members.
One of the biggest criticisms of the Family Medical Leave Act is that it does not provide a realistic mechanism for leave time because many families cannot afford twelve weeks of unpaid leave. The Family Medical Leave Act forces employers to give time off to employees that qualify, but it does not do anything to aid those employees with taking unpaid time off. Whether or not an employee taking FMLA leave will be paid is at the discretion of the employer. Most of the time, modern family life requires that both parents work outside of the home; two salaries are necessary to keep the home going. Therefore, it is often not feasible to lose half of the family income in order for one parent to care for the newborn child. If a family cannot afford to lose half of its household income, then the FMLA’s provision granting the mother twelve weeks off after the birth of child means absolutely nothing. “While one of the main goals of the FMLA was to allow parents to work while raising a family, the benefits created are mainly hollow because the majority of Americans cannot afford to use them.”
Even with the implementation of the FMLA, many mothers choose not to take the twelve weeks that the FMLA requires covered employers to provide. Nearly half of all leave events under the FMLA last ten days or less. Less than a fifth, or seventeen percent, take leave that lasts more than sixty days. Forty percent of those who used the FMLA for time off stated that the reason for returning to work was the inability to afford unpaid leave. “However, studies of Europe and Canada consistently show that take-up of paid leave is very high, often close to universal.”
C. State Implemented Paid Leave in California and Its Impact
In 2004, California became the first state in the nation to enact paid family leave with the passage of Senate Bill 1661, which is known as California’s Paid Family Leave (PFL) insurance program. PFL in California provides for six weeks of paid leave for the care of sick family members in a twelve month time frame. The program is fully funded by employees’ contributions and is administered by the State Disability Insurance (SDI) program. The California law must be used concurrently with the FMLA because it does not provide any right to return to work after the six weeks of paid leave is used. In addition, PFL is open equally to both mothers and fathers. While this program was novel when it became effective in 2004, few other states followed in California’s footsteps; only New Jersey and Rhode Island have passed similar legislation.
One interesting thing about state-implemented leave in the United States is that it opens up the ability to study the effect on infants and families. “Studying the effects of the California paid leave program is interesting in its own right because the results may be informative for understanding the potential effects of similar programs enacted in other states or nationally.” While the current research is limited to whether or not more mothers take advantage of paid leave versus unpaid leave, it is promising in that respect. “Our analysis indicates that California’s PFL program achieved the first-order objective of increasing leave-taking among new mothers, particularly those who are disadvantaged.” However, California’s PFL still leaves a lot of be desired as it only provides for six weeks of paid time off. As discussed later, research has shown while some time is better than none at all, mothers and infants need significant bonding time after childbirth for optimal growth and development of the child.
IV. Why is the United States So Far Behind?
Prior to the passage of the Family Medical Leave Act in 1993, the United States was one of the last countries in the developed world that did not have a federal maternity leave policy. The United States consistently falls behind in this arena. Why is the United States the last country in the developed world to mandate paid maternity leave for its citizens? It may have a lot to do with the traditional gender roles that have been constant through the country’s history. Traditionally, in the United States women stayed home with the children and the man of the household was the breadwinner and the only one who was employed outside of the home. “Businesses resented being required to provide women with employment opportunities because the ‘ideal worker’ was still based upon the male standard of someone who has a spouse available to take care of the domestic and caregiving needs of the family.”
Big business has a lot to do with the country’s overall attitude towards implementing paid maternity or family leave. Businesses do not want to pay their employees to stay at home with their children. Those opposing the FMLA primarily consisted of businesses and employers who were concerned with shielding the private sector from “unnecessary costs and excessive government regulations.” The Family Medical Leave Act faced opposition from big business, so much so that members of Congress interested in including provisions for paid leave completely dropped this issue during debates on the law.
A. Pregnancy and Sex Discrimination in the United States
As discussed above, pregnancy discrimination in the United States is viewed as a form of sex discrimination. The foundation of how sex and gender discrimination is viewed sheds light on how policies have developed nationwide. The United States has focused on making things between men and women “equal” instead of providing benefits to those who bear children. One of the realities of the very nature of pregnancy is that nothing will ever be “equal” because women are the only ones who become pregnant, and, even after childbirth, the majority of the work that is involved with raising a child falls on the woman whether she is working or not. First and foremost, the United States needs to stop viewing pregnancy as something that should be given “equal” rights and begin to see pregnancy and caring for a child as the unique situation that it is. The Supreme Court of the United States currently has a chance to do just that.
B. Young v. United Parcel Service
The Supreme Court of the United States granted certiorari in July of 2014 to hear a pregnancy discrimination case — Young v. United Parcel Service. In Young, Peggy Young was a pregnant employee whose employer denied her any accommodations or light duty assignments after her doctor limited her to jobs in which she did not lift more than 20 pounds. The United Parcel Service’s policy was that if an employee was unable to perform essential elements of their job and it was not due to an on-the-job injury, then the employee was ineligible for a light duty assignment.
In order to prove a case of pregnancy discrimination under the Pregnancy Discrimination Act, Young had to establish the following elements of a prima facie case of pregnancy discrimination: “(1) membership in a protected class; (2) satisfactory job performance; (3) adverse employment action; and (4) that similarly situated employees outside the protected class received more favorable treatment.” Ultimately, the Fourth Circuit Court of Appeals held in favor of United Parcel Service. Where did Young fail? Young could not prove the fourth element — that similarly situated employees outside the protected class received more favorable treatment. The Fourth Circuit stated that, “we therefore adhere to the majority view that where a policy treats pregnant workers and non-pregnant workers alike, the employer has complied with the PDA. The UPS policy at issue is not direct evidence of pregnancy-based sex discrimination.” In the end, this is the rub of the Pregnancy Discrimination Act. As long as the policy treats everyone “equally,” then the court will hold the policy compliant with the Act.
The Supreme Court heard arguments in early December and will release its holding in the early part of next year. However, given the current state of the law, it is unlikely that the Supreme Court will overturn the Fourth Circuit’s ruling. It is likely that these issues are something that only Congress will be able to address; real change will have to come directly from the legislative branch.
V. Proposal for the Future
Where does the United States go from here? What should be considered in order to devise a policy that is not only reasonable for business owners, but also provides necessary benefits to expectant and new mothers? For one, the science behind what is best for families and the infant should be examined. It is important that any moves for change are based on what is best for both mothers and infants.
In addition, Congress should amend the Pregnancy Discrimination Act to provide real protection for women during pregnancy. Providing real protection for pregnant workers is the first step in paving the way for policy change in this area. Finally, the United States should look at amending the Family Medical Leave Act to mandate paid maternity leave for the period of time that studies suggest is of the utmost importance to the family and infant and, as discussed below, some of the studies have shown that twelve weeks is not enough.
A. What Does Science Say about How Long Women Need Off after Childbirth?
With the United States’ attitude toward pregnancy and maternity leave, it is not surprising that there is not a lot of scientific information about what is best for working mothers and infants following childbirth in our nation. It is difficult to study the effects of mothers who return to work soon after childbirth and those who do not because of the low rates of use of maternity leave across the board. There is, however, research to show how vital mother-child bonding is for the child’s growth and development. In addition to the science available from our own country about mother-child bonding, the effects of infant stress, and how employment after childbirth affects maternal health, Congress also can look to other countries as well as worldwide research from respected organizations for guidance in what works and what does not in terms of pregnancy and childbirth policy.
There is more research worldwide on the effects of the mother’s employment on maternal and infant health. In fact, the World Health Organization (WHO) recognized that twenty-four weeks of maternity leave after childbirth provides extensive health benefits. The WHO also recognized that twenty-four weeks, while beneficial for health, may not be a feasible number for countries to implement. “Based on available evidence, the World Health Organization concludes that ‘women need at least 16 weeks of absence from work after delivery’ to protect the health of both mother and child.”
1. Maternal-Infant Bonding
Beginning with what is known about mother-child bonding, the few months directly following the birth of the infant is one of the most significant times for creating a secure attachment and bond between the mother and the infant. “When a caregiver consistently responds to an infant’s needs, a trusting relationship and lifelong attachment develops. This sets the stage for the growing child to enter healthy relationships with other people throughout life and to appropriately experience and express a full range of emotions.” Mothers are unable to form this secure bond if they are immediately running back to work because they cannot afford to take time off.
2. Importance of Reducing Infant Stress
Research shows some of the things that parents can do in the early days of infant care to ensure that the infant’s stress level is reduced. Studies have shown that a reduced stress level in infancy affects later brain development and reactions to stress. Research has shown what types of parenting practices help reduce infant stress. “Parenting practices include co-sleeping, breast feeding on demand, extensive carrying and holding of infants, and rapid response to infant crying.” These practices will obviously require a lot of attention from the parent. Children who are dropped off at a daycare or have a nanny may not receive the same type of love and attention as they would from their own mother. In addition, research has shown breastfeeding often stops at the same time the mother returns to work. The longer she has to stay at home, the longer the infant will be breastfed.
3. Maternal Health
Research also has shown that time off after childbirth for mothers does not only have a positive influence on the child, it is also beneficial for maternal health. “The results indicate that among employed mothers of infants, returning to work later is associated with fewer depressive symptoms . . . . Holding other factors constant, an incremental increase in length of maternal leave from work would reduce depressive symptoms on average by five to ten percent.” However, this research is pretty limited. Few studies have looked at the effects of returning to work after childbirth. “Although the Family and Medical Leave Act of 1993 was motivated by concerns about the health of infants and postpartum women, there is little empirical evidence regarding whether or not longer maternity leave actually affects maternal health.”
4. How Much Time Off is Optimal?
Length of maternity leave time correlates with other factors that are important to maternal and infant health. In one study, it was found that children whose mothers went back to work within twelve weeks were less likely to go to after-birth checkups or receive the appropriate immunizations in a timely manner. Other studies have found that children are affected even up to eighteen months old when their mothers are employed full-time. “Recent research indicates that early maternal employment increases the frequency of child behavior problems, and detracts from school readiness, verbal ability, and test scores. . . . Full-time employment during the first eighteen months is particularly harmful for children’s cognitive and behavioral outcomes.”
As noted above, the World Health Organization (WHO) recognizes twenty-four weeks of maternity leave after childbirth provides for extensive health benefits. This recommendation comes from research into the effects of breastfeeding, infant mortality rates, and studies on maternal health. While the jury is still out on how much time is optimal, it is clear that, based on research, twelve weeks is likely not enough.
B. Real Protection for Pregnancy — Amending the Pregnancy Discrimination Act
The first step in changing the way the United States looks at pregnancy and childbirth is through providing real protection for pregnant workers. The Pregnancy Discrimination Act simply does not provide adequate protection. A policy that allows employers to treat pregnant employees just as poorly as anyone else is not a policy at all. The Senate introduced the Pregnant Workers Fairness Act in 2013 in an attempt to address some of the problems with the current legislation.
The Pregnant Workers Fairness Act would specifically require an employer to make reasonable accommodations for pregnancy, childbirth, and other related medical conditions, as long as it does not create an undue hardship on the employer. This type of Act, if it had been the law at the time Peggy Young was working for United Parcel Service, would have required the company to give Young alternative or light duty assignments. In addition, this Act would not allow employers to require pregnant employees to accept accommodations when they do not want them. Thus, a company could not force a pregnant employee into a light-duty assignment if she did not wish to have the accommodation. This added protection would ensure that pregnant employees are not treated differently from any other employee with a temporary disability.
C. Amending the Family Medical Leave Act
The House of Representatives examined another proposed change in 2013. Known as the Family Medical Leave Insurance Act (FAMILY Act), if the bill passed, it permitted covered workers up to twelve weeks of paid leave equaling up to 66 percent of their monthly income or up to $1000 per week. This type of paid leave is set up as an earned benefit, meaning workers are eligible to receive benefits if they have paid into the system, much like Social Security. However, in some ways this bill would further the current policy of trying to treat pregnant employees “equally” because it includes the same types of leave policies as the Family Medical Leave Act in that an employee can use it for both maternity leave as well as caring for sick family members.
In addition, with some of the research that has been conducted about the effects of mothers returning to full-time employment after childbirth, it is clear that twelve weeks of leave is simply not enough. Congress should amend the FMLA to include not only paid leave, but also more than the mere twelve weeks of leave that is currently provided. Twelve weeks of paid leave instead of unpaid leave is certainly a small step in the right direction, but the United States is in need of some serious leaps in this area.
The United States is an extremely advanced country in many ways; however, it has consistently failed to take care of those who bear children. The reasons for this are pretty clear, because the United States’ attitude toward pregnancy in general leaves a lot to be desired. Current policy strives to treat everyone “equally,” which does not make any logical sense when one realizes that there is nothing equal about pregnancy. Pregnancy is different than anything else and needs to be treated as such. The United States has zero chance of changing maternity leave policy without changing the underlying attitudes toward pregnant women in general. Congress must work to amend the Pregnancy Discrimination Act in order to provide real protection for pregnant workers.
In dealing with this area of policy, the United States fails to protect women both during pregnancy and afterward. In addition, it is not just about the mother. The United States is also failing to do what is best for the future of its children. The scientific evidence is virtually undisputed that children need their parents, specifically their mothers, early in their lives to ensure healthy development. While it may not be feasible to provide paid leave for eighteen months after childbirth, the United States can certainly do better than a mere twelve weeks of unpaid leave.
While some states have tried to do something about this problem on their own, it is clear that federal mandates are needed. While states such as California have implemented state programs for paid leave, even this legislation leaves a lot to be desired. Countries with similar economic and democratic policies all have mandated paid maternity leave and, for the most part, the programs are funded by the government. Scientific research has proven women need a certain amount of time off of work after childbirth for both their health and the future growth and development of their children. Further, studies have shown that mothers do not take advantage of unpaid leave for a variety of reasons but will use paid leave if it is made available to them. Providing paid maternity leave is not just about providing a benefit to the citizens, it is about recognizing its necessity for maternal and infant health.
 Kendall Shortway received a Bachelor’s of Arts with a major in Criminology from the University of South Florida in 2010 before graduating from the William H. Bowen UALR School of Law in December 2014. While in law school, Kendall was elected as a Senator and served as Social Committee Chair of the Student Bar Association, was a member of the Arkansas Journal of Social Change and Public Service, and was a member of the National Trial Competition Team. Kendall balanced her schedule as a part-time law student while working full-time as an Investigator for the Department of Justice. Her plans are to continue her career in public service while she works on being admitted to the bar before she shifts her focus to finding a position in as a criminal prosecutor.
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 H.R.3712, 113th Cong. (2013-2014).