When I was pregnant with my first child, my mom gave me the evergreen handbook What to Expect When You're Expecting. The list of things to expect was so daunting that if I'd seen it prior to getting pregnant, I might have installed a permanent chastity belt. As I remember it, I was warned that morning sickness could occur at any point during the day and could last from the fourth week until the thirteenth. It predicted that I was going to be tired, as the progesterone created by the pregnancy would act as a sedative. I would have to urinate constantly, as my kidneys were now working for two. (Great news for a prosecutor during tension-filled trials.) I'd have heartburn, headaches, and cramps—but medications were to be avoided. I might faint because of decreased blood flow to my brain. My breasts would ache. My nails would split. My hair would thin. My skin would change.
My husband got no such book and didn't have to worry about a host of potential new physical trials and tribulations. He also didn't have to give much thought to how the baby, after I carried and delivered it, would affect his life. He was never asked how he was going to balance his career and a child, as I was on an almost daily basis by everyone from fellow prosecutors to courtroom judges to a waiter in my favorite Italian restaurant.
One thing that no one was able to tell me was what to expect at work. How would the U.S. Attorney's office react to a pregnant prosecutor? What should I do to make sure my job was safe? When should I tell them? What were my legal rights? I remember very early on in my pregnancy going to lunch with my two best friends at work, Barbara and Cathy, and the issue of pregnancy came up. I almost choked on my salad when they said they “pitied” the first woman in the office who got pregnant. They wondered out loud how our supervisors would take such news. I had no idea. Would they want to get rid of me? Could they? Was I entitled to maternity leave? How long could I be out? Would I still get paid? And what would happen to my position?
We live in a society that punishes women who want to be working mothers. We get pregnant, and our laws and employers render us guilty of the charge of working motherhood. As pregnant women in the United States, our rights are surprisingly limited. We have the right to be treated as though we have a temporary disability—to be given as many allowances for our pregnancies as the guy in shipping who broke his foot at the company bowling outing. We also have the right to twelve weeks unpaid leave and our jobs back as long as a laundry list of caveats is met. Our pregnancies are protected so long as the corporate productivity chart is protected first.
Though we've made progress since the days of our mothers and grandmothers, we still have much further to go to free ourselves from this pervasive form of gender discrimination. In order to do so, every woman in America (pregnant or not) needs to become fully informed about what legal protections we've been granted and those we're lacking and need to demand.
In 1978, in response to years of pressure from women's groups, Congress amended Title VII of the Civil Rights Act of 1964 to include the Pregnancy Discrimination Act. The PDA was designed to protect a woman's position in the workforce should she choose to become pregnant. Women, the law says, are to be treated in the same manner as other employees or applicants with similar disabilities or limitations. Now, I don't know about you, but to me that's a red flag from the start. I would never call the wonder of pregnancy and the miracle of birth a “disability” or a “limitation.” In fact, it seems to me it's a super-ability and responsibility that we bear and men don't. But let's ignore semantics for a moment and look at the law. What does this law provide for us; what rights are we granted? And how does it protect us from discrimination?
Even though government studies show that 80 percent of workingwomen are likely to become pregnant during the course of their careers (and of those, more than half return to work within a year of giving birth), women who get pregnant are seen as putting their personal life ahead of work.
“In one interview I was asked point-blank if I have children,” Linda, a married attorney, said. “I was interviewing for positions as the in-house legal counsel and the interviewer (a man) put me in a position of trying to convince him that I don't plan on having children in the next several years. I could tell if he thought that I might have children soon, my chances at the position would obviously be compromised.”
“I found it interesting that in all of my job interviews,” Yvonne, a marketing rep, revealed, “I was asked what my husband does for a living—not just what his profession is, but rather details about what he does. The questions that were asked, I think, seemed aimed at determining whether I am the primary breadwinner and therefore less likely to leave if I have children.”
The latest studies show that pregnant women are viewed as less competent in the workplace—and the shocker is that both male and female co-workers see them this way. In one study undertaken by the Journal of Organizational Behavior, pregnant and nonpregnant women were given tasks that were evaluated by college students, and even though both groups performed with the same proficiency, those who were pregnant were consistently rated lower and viewed as physically limited, irrational, and less committed to their jobs.
The Pregnancy Discrimination Act established that women do not have to reveal their pregnancies to employers and employers do not have the right to ask women if they are pregnant. But let's face it— pregnancy can be concealed only for a while. So if an employer hires you having (illegally) asked that question and you've relied on your right not to tell, your pregnancy (and forced lie) will soon become as apparent as Pinocchio's nose. Then what do you do? Even though it was your right not to disclose your pregnancy, the pregnant pause in the truth may impair your ongoing working relationship.
The Journal of Business and Psychology reports that half of the pregnant women interviewed about their experiences in the workplace said their superiors' reactions to their pregnancies were negative. They also reported disturbing comments from fellow workers such as questions about stretch marks and hurtful remarks about big appetites. The law was enacted in 1978, and twenty-five years later women are still experiencing blatant discrimination.
Cindy, an accountant in a very large firm, recounted a story about a senior male partner who had come into a meeting to announce that he had terrible news about a woman who was a senior associate. Someone asked what had happened, and the partner, who was close to hysterical by this point, yelled, “Emily just announced she's pregnant!”
In 1997, Hunter Tylo sued Spelling Entertainment for breach of contract and pregnancy discrimination. Hunter claimed that she was fired from Melrose Place because she became pregnant before filming began on her role as the show's sexy vixen, though by law she was not required to inform producers of her pregnancy. Specifically in this case, Hunter charged that after producers of the show discovered she was pregnant, they had gone so far as to suggest, “Why doesn't she just go out and get an abortion? Then she can work.” In court, producers argued that they had the legal right to fire her because she couldn't realistically play the seductress while her pregnancy showed. Jurors sided with the actress, saying that she could have still performed the duties of her job, and under the Pregnancy Discrimination Act awarded her $4.9 million.
A woman in New Jersey was fired recently for being pregnant. Though she had been “scared” and “embarrassed” to tell her employer (a major hotel chain) that she was pregnant, she decided it was only fair to tell them because she “didn't want to hide anything.” The manager of the hotel told her that he “would have never hired” her if he'd known she was pregnant, and a week later fired her because, according to him, she was unable to fulfill her duties in housekeeping though she had received no complaints or reprimands regarding her work. This isn't just unconscionable; it is illegal according to federal law. She is entitled to and should immediately file a complaint with the local EEOC office.
In 2002, Pan Am flight attendants won a class action lawsuit against their employer's maternity policy after twelve years of struggle and strife. Title VII is very clear in its language: “An employer cannot refuse to hire a woman because of her pregnancy-related condition as long as she is able to perform the major functions of her job.” Yet when the flight attendants filed their case in 1990, Pan Am policy required flight attendants to notify their superiors immediately of pregnancy (a clear violation of Title VII, as we've seen) and that all flight attendants take unpaid leaves for the duration of their pregnancies.
By the time this legal battle was settled, many of the women had moved on to different careers and had had to spend countless hours and thousands of dollars to have the court find that it was an invasion of privacy to require flight attendants to disclose their pregnancies immediately. The court also deemed Pan Am's actions discriminatory under Title VII for requiring unpaid leave for the rest of the pregnancy, as there was no evidence offered to prove that a pregnant flight attendant could not perform her duties adequately. The women were awarded monetary damages from $330 to $13,000 based on the amount of time lost from work while on mandatory maternity leave, with one attendant receiving $265,000 for her ten-year fight to be reinstated.
To go back to my own case, when I did finally brave telling my supervisor in the U.S. Attorney's office that I was pregnant, I was armed with the knowledge of what I was allowed by law and already had my plan as to how I could continue my job right up until delivery. After I explained how I could save my sick days and vacation days (I hadn't taken any sick leave in the five years I worked there) to stack up to three months of maternity leave, he took the news fairly well. What else could he say? I knew what I was entitled to by law.
In the last weeks of my pregnancy, my blood pressure skyrocketed, a condition called preeclampsia, and my doctor ordered bed rest. He said I couldn't be on my feet five days a week, and the thought of telling my boss made me a nervous wreck, which I'm sure wasn't great for my blood pressure. After several sleepless nights, I finally waddled into my boss's office and offered a carefully prepared monologue about how I could get the work done. I waddled out still working five days a week, but with approval to work from home one of those days. I spent every Wednesday in bed calling ATF and FBI agents, surrounded by a slew of manila folders filled with case materials.
The Pregnancy Discrimination Act grants us the right to determine for ourselves what exactly we are capable of. This protects us from scenarios such as what happened to teachers in the 1950s, when school boards across the country adopted rules that required teachers to take mandatory maternity leave without pay. The Cleveland, Ohio, Board of Education, for example, required every pregnant teacher to take an unpaid leave, starting five months before the expected birth of the child and continuing until the beginning of the semester after the child had reached the age of three months. Upon her return, the school board did not reinstate the teacher into her classroom; she was merely given priority for reassignment to a position when one became available.
Of course, many women challenged their districts and educational institutions. Insulted by the suggestion she was somehow not capable of working, Inga, an English professor in Washington, found a way around it. “I was in excellent health, loved teaching, and therefore saw no reason to be suspended for the fall quarter without pay, which was the custom of the day,” Inga remembers. “A woman so obviously pregnant would be a rare sight in academia at the time—it might give students certain ideas. The issue of whether or not I could stay or would be required to go on leave for the quarter rested with the interpretation of the agreement instructors signed with the college. The decision ultimately turned on the word shall, which was open to wider interpretations than would have been the word must, as in ‘must seek leave of absence.’ I went home on Saturday, had my son, and returned to school on Monday with no ill effects. I had spent my two days of ‘personal leave’ precisely as I had wanted it.”
By the early 1970s, women had had enough and started going to courts to demand their rights. The first case to reach the Supreme Court was Cleveland Board of Education v. LaFleur, in which three teachers, Jo Carol LaFleur and Ann Elizabeth Nelson from Cleveland, Ohio, and Susan Cohen from Chesterfield, Virginia, argued that mandated maternity leave was an infringement on their constitutional rights.
The school district argued that these policies allowed for educational continuity for the students and protected the “safety” of the students, teachers, and unborn children because some pregnant teachers were too incapacitated to manage their teaching duties. The Supreme Court found the policy unconstitutional, and held that making presumptions that all women who are four months pregnant are physically incompetent was a violation of the due process clause of the Fifth and Fourteenth Amendments.
An endnote in another case that year, Green v. Waterford Board of Education, is, to our current thinking, laugh-out-loud funny:
An additional state interest—avoiding “classroom distractions” caused by embarrassed children “pointing, giggling, laughing and making snide remarks” about their teacher's condition—emerges from one of the several cases to which defendants refer. We regard any such interest as almost too trivial to mention; it seems particularly ludicrous, where, as here, plaintiff taught only high school students. Whatever may have been the reaction in Queen Victoria's time, pregnancy is no longer a dirty word.
Title VII states it is a woman's right to decide how long she can safely perform her job, and, though it probably helps employers more than pregnant women, requires employers to treat pregnant women no differently than they treat other “temporarily disabled” employees. For instance, if an employer requires its employees to be able to lift heavy objects, then a pregnant woman may also be required to lift heavy objects (or lose her job) unless the employer provides alternatives to other temporarily disabled employees (such as light duty, alternative assignments, or disability leave). If so, the employer must provide the same alternatives to pregnant women—i.e., it must treat them equally to any other employee with a temporary disability.
Though study after study shows that longer maternity leave helps babies become healthier children, as well as warding off postpartum depression for the mother, the trend is toward shorter and shorter leaves. Specifically, a study by the National Bureau of Economic Research of 1,762 working mothers found that mothers who take at least three months off after childbirth showed 15 percent fewer symptoms of depression after they returned to work than women who take six weeks or less. A new Census Bureau study found that women are returning to work sooner than they did a decade ago, and an Executive Moms survey last year found that some women are taking as little as two weeks off after childbirth.
How long does the law say we can stay home with our baby? According to the Pregnancy Discrimination Act, only as long as our employer allows someone to stay home after a heart attack or broken leg. With my accrued sick leave and vacation time, I was able to take three months after the birth of my son. But any more time and my job (and livelihood) would have been jeopardized. When I returned to my office from maternity leave, I was exhausted, so tired that for weeks during lunch breaks, I would close my office door and sleep on the floor just to get some rest. There was no such thing as flex time for at-torneys—we had to be in the office from eight-thirty to five-thirty, no matter what—and I didn't want anyone questioning whether I could do my job.
One thing I noticed about the early months back to work was that my supervisor no longer gave me the big, highly publicized criminal cases. Instead, he asked me to handle a series of low-profile immigration cases that seemed unlikely to build my career. Knowing I was eager for the big cases, was he discriminating? Or, knowing I was a new mother, was he being kind? Regardless, I clawed my way back to the top when a rogue border patrol agent and I turned one of the seemingly small cases into the biggest INS case that year. To this day, I've wondered whether my career would be quite the same if I hadn't had the luck to work on this case.
Sunshine, a single working mother of two, said many of the women she knows have been concerned about their job security during and after pregnancy. “Yes, you are entitled to maternity leave, but your boss also wants an uninterrupted work flow,” she said. “And taking any additional maternity leave would mean that not only am I a woman, but now I have to take additional maternity leave and you'll just have to reassign all of my important duties to someone else until I return. Oh, and that someone else should vanish into thin air when I do return so that I can receive the same salary, position, and job responsibilities that I had before I left. It may work on paper, work in your employee manual, but you're still going to get screwed in the end.”
Consider the 1987 federal case of Polly Gammon. After informing her supervisor at Precision Engineering Company in Minnesota that she was pregnant, Polly was given her first unsatisfactory performance review and denied a non-merit-based salary adjustment. She was then informed that her receptionist position would be permanently filled when she went on maternity leave, and was, in fact, fired from her job the day before she gave birth. As if this weren't bad enough, her baby was born with hydrocephalus and needed extensive medical care, but her health insurance was also terminated.
When Polly filed suit against her former employer for violating her rights under Title VII, the company fought back, saying her work performance had been poor and that no one's job was guaranteed when returning from a leave of absence. The court found that, in violation of her protections under the Pregnancy Discrimination Act, she had been treated differently than other employees, as the company had allowed a male employee to use accrued vacation time in his recovery from a heart attack and had not terminated his health benefits. The court also found that her company had violated its own policies in her performance reviews. The court awarded her treble back pay, medical expenses, and $10,000 in punitive damages and attorney's fees and costs.
So, taking into consideration Polly's medical needs, does the Pregnancy Discrimination Act protect us in terms of health care coverage? The answer is a resounding “sort of.”
The courts have held that pregnancy discrimination is not gender discrimination under Title VII when it comes to mandating that public employers pay for health insurance costs associated with pregnancy, nor are those costs covered as a disability—even though, as we've seen, as far as time away from the office is concerned, pregnancy in the United States has been labeled a “disability.” In the private sector, the PDA does not mandate health coverage, leaving women to fend for themselves. According to a study by Emory University for the March of Dimes, one out of every eight pregnant women is without health insurance, and the figure is higher among Hispanic and African American women. So if your employer does include it, consider yourself fortunate. If a woman doesn't have coverage, she's got to come up with the money on her own or pay out of her own pocket for special disability insurance that specifically covers pregnancy. The catch-22, of course, is that most insurance plans exclude “preexisting conditions,” so you likely won't get coverage if you are pregnant when you apply.
This is a good example of insidious logical thinking gone awry. The paradigm is “we can't discriminate because of sex,” yet women are required to claim pregnancy as a disability, but not a disability like cancer or diabetes since it's something a woman “chooses” to take on (whether or not we can actually make that choice will be discussed later). And therefore we protect men because according to our laws we'd be discriminating against them if we gave special privileges to a woman because of a woman's super-ability to get pregnant.
In 1993, the federal government passed the Family and Medical Leave Act (FMLA), granting parents—both women and men—the right to take up to twelve weeks of unpaid time off to care for a child, spouse, or parent with serious health conditions or, for women, if they are sick or unable to work during a pregnancy. Yet again—even though this is an unpaid leave—this law is also rampant with exceptions to the rule. You cannot take the leave if:
Your employer has fewer than fifty employees … and those must be within a 75-mile radius.
You haven't been employed for at least twelve months and worked at least 1,250 hours within those months.
Your husband or wife works for the same employer—you're only entitled to twelve weeks between the two of you.
You don't give thirty days' notice.
Unfortunately, the loopholes again provide employers with a way out. There are numerous cases in which women take family leave and return to find that their employment situation has changed for the worse—either they've been fired or “downgraded” or part-timed. In some of these situations, the women involved have recourse against their employer; in other situations they do not. The major caveat— you must work in a company with fifty or more employees—means that many women work for companies that have no obligation to hold a job for them once they leave to become mothers.
There's also a more prevalent, often unspoken, factor that keeps new moms on the job even when the Family Leave Act, in theory, is fully applicable. Employers are allowing new moms to take their leave but then putting more and more pressure on them to “volunteer” to return to work early. Consider, for instance, Jessica, who lives in St. Louis and works for a national nonprofit organization. She planned to take the full twelve weeks as granted to her by law when she gave birth to her second child. She didn't take any time off prior to the birth and even went into labor on a Saturday, having worked the previous day. When Jessica arrived at the hospital, she called her boss, Aileen, and left an excited message on her answering machine saying that she was in labor, so she wouldn't be in on Monday and would start taking her leave effective immediately.
While she was in the delivery room, Jessica's cell phone rang; she answered it since she was expecting a call from her mother. It was Aileen calling to ask Jessica whether she could come in later in the week to help out with a new project that needed her expertise.
“By saying that I'd be letting down the team if I couldn't do it,” Jessica recalled, “what she did was make me feel guilty.… I told her it probably wasn't the time to be talking about it—I was having an epidural!”
Throughout her leave, Aileen called constantly with questions and coercive remarks, trying to get Jessica to return earlier than scheduled. During one call, Jessica suggested to Aileen that she was really enjoying being at home with her daughter and was a little anxious about putting a three-month-old into day care, so she might want to extend her leave using vacation days. Her boss immediately said, “No!” and hung up the phone.
Even though her leave was a right by law, Jessica felt there would be larger repercussions if she didn't help out. She knew that if she didn't “take one for the team,” her years of good work and devotion to the company would be forgotten and all that would be remembered was that she took too long on her maternity leave. Jessica juggled her life—she had her sister fly in for a few weeks, her husband took vacation, and she hired a nanny—to accommodate her boss and return to work earlier than scheduled.
Today, Jessica says that she resents missing out on time with her daughter and admits she's become less enthusiastic about a job she once loved. “And what did going back early get me?” she asked. “After paying the nanny, my salary was negligible, and I certainly haven't received any big promotions as a result of my loyalty. In retrospect, I think I should have quit. It would have been a lot easier on everyone in my family, and I would have kept my dignity.”
Jessica's plight is shared by many women who, in spite of the legal protections available to them, feel tremendous pressure to go back to work quickly after they give birth. Some women, too, find that their employers' policies specifically compel them to return. Lisa, an admissions director for a small private university in Pennsylvania, told me about a significant legal curveball thrown at adoptive mothers by the university. Though mothers at the university are typically given six weeks of short-term disability (paid leave) followed by the twelve weeks of unpaid leave provided by the Family Medical Leave Act, adoptive mothers are permitted to take only the federally mandated twelve weeks. When Lisa and her husband adopted, there was nothing in place for her to take a leave. “I didn't get any paid time off,” she said. “And the cost of adoption is significant. So I had to work.” Fortunately, Lisa felt strongly enough about the need to grant adoptive parents paid time off that she met with the vice president of human resources. “I can proudly say that my school now offers four weeks of paid leave for adoptive parents,” Lisa added. But most workplaces offer nothing to parents who have children through adoption, since the law, which bases its provisions on the concept of disability, simply does not require it.
There have already been several notable cases in which wily companies have tried to skirt the law by hiding their pregnancy discrimination behind a clever façade—if they can't fire employees for being pregnant, they'll fire them for the way they look. There are no federal or state laws that directly ban employment discrimination based on appearance, though a few court cases have emerged asserting that employers do not have free rein to base employment decisions on employees' looks. Appearance-based discrimination may be actionable if it is related to sex, race, age, religion, disability, or some other protected category.
Consider, for instance, the 1987 case decided by a federal court in Alabama in which a pregnant desk clerk sued a Howard Johnson's motel after she was fired for refusing her supervisor's instructions to wear makeup when her complexion broke out due to hormonal changes during her pregnancy. The day she told her supervisor she was pregnant, he instituted a new dress code requiring all female employees to wear makeup and lipstick. Given that she had always worked without makeup, the court determined that wearing makeup in order to work at the motel was not a bona fide occupation qualification and was instead a ruse to fire the woman for being pregnant. Just note that the verdict was not about pregnancy.
Okay, we can't be asked if we're pregnant, can't be told if we should or should not work on our swollen ankles, are not supposed to be charged more for our health insurance, and might be able to take an unpaid twelve-week leave of absence. We've got it made, right? Not exactly. Even though the Pregnancy Discrimination Act provides certain protections, there are so many legal loopholes for employers that it's almost every woman for herself. In fact, for every claim made it is estimated there are hundreds that are just dropped or never filed to begin with.
Pregnancy discrimination is difficult to prove. Women are also too busy, too unaware of how to challenge the system, and too plain exhausted to take up the battle. In fact, despite the Pregnancy Discrimination Act, perhaps the most precarious time for a woman professionally is when she's pregnant or during maternity leave. Who has the energy to fight when you're busy mothering? And who has the money? Besides, who wants to be blackballed or stigmatized at work (if you're lucky enough to have your job) as the “troublemaker” if you do win?
According to the National Partnership for Women and Families' analysis of government data, during the decade prior to the passage of the Pregnancy Discrimination Act, more than half of employed women quit their jobs when they became pregnant. After its passage that number dropped to 27 percent of pregnant women, but time and again over the last twenty-five years, women have had to use the law to fight unfair treatment within the workplace. For every woman who has “won,” though, there are a thousand others who've suffered and carried the burden of inequality. And pregnant women across the nation continue to claim they've been unfairly fired, denied promotions, and, in extreme cases, even been encouraged to terminate their pregnancies in order to keep their jobs. Why? The law is weak. And state laws are generally of little use, varying widely and often falling below the protections of federal law. Shouldn't we be protected as American women, not simply on the basis of what state we reside in?
It is apparent that the laws protecting pregnant women today are hardly complete. Even the Supreme Court recognized that when in 1987 it upheld a California law requiring employers to give unpaid pregnancy disability leave of up to four months and guaranteeing employees their jobs upon their return. (California is one of a handful of states with such benefits.) The case involved Lillian Garland, a receptionist at California Federal Savings and Loan who lost her job after taking a three-month pregnancy leave. The court, in an opinion by Justice Thurgood Marshall, rejected arguments by business groups and the Reagan administration that it is discriminatory to require leave for a pregnant worker when an employer doesn't have to provide similar accommodations for workers with other disabilities such as broken arms. Marshall wrote that the Pregnancy Discrimination Act should be considered a “floor beneath which pregnancy disability benefits may not drop—not a ceiling above which they may not rise.”
It's high time to go above the ceiling and raise the roof. Some courts have noted that the Pregnancy Discrimination Act is to be used as a shield, not a sword. It's time to create a sword to cut our way through the bureaucratic jungle. It's time for us to go on the offensive. Women should be free to have children without confronting the risk of job loss and economic hardship. And we must fight for that right.
This is a country that limits access to birth control and abortion, yet does little or nothing legally or financially to make it easier for us to have families. While most American women would agree that paid maternity leave should be every woman's right, instead the complete opposite seems to be the norm. We get pregnant, and we get punished. Many women hide their pregnancies from their employers until they are literally about to pop for fear of negative repercussions. Others delay childbirth for fear of discrimination and lost wages. Though they want children, they want to have careers as well, and are concerned that a decision to have a child will indicate to their employers that they have chosen to be “Mommy” rather than a “Senior Vice President” who's also a great mom.
Why is it that women almost always are made to feel they must make some kind of choice between family and work? Remember the hoopla surrounding Massachusetts governor Jane Swift in 2001? She had been lieutenant governor when she became pregnant with twins. Nine months later the governor was appointed as ambassador to Canada, and suddenly Swift was in a difficult position. She had been ordered to take bed rest by her doctor, but due to a rule in the Massachusetts state constitution, as governor she had to meet weekly with a commission to ensure that state employees got paid. Thinking logically, she conducted these meetings by speakerphone. This was met with a lot of resistance, mostly by political foes who used her pregnancy against her, saying she should relinquish governorship.
A case was brought to the state supreme court challenging the constitutionality of holding meetings by speakerphone without the governor being physically present. The controversy flooded the local papers and talk shows for several days, with most people condemning the Governor's Council for taking the ludicrous position. In fact, nine days later, the council voted 8–1 to reverse its earlier decision to ask the Supreme Court whether the speakerphone was legal, attempting to put the whole issue behind it. “We can just move on now,” said Councilor Carole Fiola, a Democrat. “I think the sensation is over and we can just get back to normal business.”
The one dissenter, Councilor Ed O'Brien, complained, “Nothing in the Constitution says it's appropriate to do this so long as the governor happens to be a girl and happens to be pregnant or happens to be delivering a child.” Throughout her term she was accused of being a bad mother for attempting to have a demanding job and be a mother at the same time (even though her husband was a stay-at-home dad). Her political foes used every opportunity to suggest she was abusing her gubernatorial privileges to take care of her family. For example, Swift had made use of a state police helicopter to return home to her sick daughter during a period of heavy Thanksgiving traffic; she had also made requests that state aides pick up her children at day care. In the end, Swift elected not to seek another term as governor. “Having said early on that time with my family was nonnegotiable,” Swift announced, fighting back tears, “something had to give.”
Can you remember the last time a male politician was criticized for his parenting? Or made to feel that he was incapable of doing his job or abusing his privileges because he's a father? And, to stick with the disability argument made by our laws, when was the last time a male politician was considered unfit for a position because of a bad back or stomach ulcer?
There is a blatant disregard for our rights. Perhaps worse are the subversive, subtle, discriminatory acts that aren't fully realized until much later. Some of the discrimination just comes from ignorance, but more comes from employers' strategic, manipulative, and sometimes downright mean acts in pursuit of protecting the bottom line. Even companies that are noted for their generous maternity leave and telecommuting programs have recently come under fire for pregnancy discrimination. Novartis, pharmaceuticals maker and ironically the producer of Gerber baby brands, was picked by Working Woman magazine as among the best one hundred companies for women, yet in 2005 a dozen sales representatives filed a $100 million lawsuit contending that the company discriminated against them in pay and promotions, particularly after these employees became pregnant.
Samantha, a thirty-two-year-old attorney, said, “I would love to have the European option of taking several years off without penalty for maternity leave. I think that this country undervalues families.” Katie, a twenty-six-year-old producer and editor, agreed: “Great Britain is currently working to reform their laws to encompass six months' paid time off for both mother and father. Now, that's profamily.”
Bodil, a pediatric nurse who lives in Copenhagen, Denmark, says she has always been dumbfounded by the way pregnant women in the United States are treated. “It's like you have the plague,” she said. “In Denmark, we are cared for and protected when we get pregnant. We get a paid year off from work, which makes women happy to be able to be with their babies during that first year and makes them better workers when they return. Everybody wins.”
According to the International Labor Organization, more than 120 countries currently have laws providing paid maternity leave, and a 2004 Harvard University report showed that, out of 168 countries studied, the United States is one of just five that does not offer some form of paid maternity leave. Most of the countries in the world recognize the need for laws and social policies that protect women of childbearing age in the workplace.
For example, in Canada, when a woman is pregnant, her employer must allow her time off from work to have her child. Canada also provides a second kind of leave, called a “parental leave.” This is additional time either parent can take away from work to care for a new baby, and it's also available to parents who have a newly adopted child. In Canada, during your leave, the federal government (not your employer) pays you benefits that partly replace your salary. Your employer cannot lay you off, fire you, or penalize you in any way because you take maternity or parental leave. In addition, while you are on leave, you still accumulate seniority as you did while you were working, and you can also continue to participate in employee pension plans, as well as life and health insurance plans, unless you ask not to. The Canadian federal government will provide up to fifteen weeks of maternity benefits and up to thirty-five weeks of parental benefits. Benefits amount to 55 percent of your regular salary based on your earnings over the last twenty-six weeks, up to a maximum of $413 per week.
In our southern neighbor, Mexico, the constitution, besides guaranteeing equal rights for men and women in Article IV, goes on to say that every person has “the right to decide in a free, responsible and informed way the number and spacing of children.” And that's only a start. The Mexican Fair Labor Act entitles pregnant workers to six weeks of paid maternity leave both before and after childbirth, for a total of twelve paid weeks. And, unlike all the exceptions that are made in the United States to the FMLA's twelve weeks of unpaid leave, this law applies to all employers—whether state, federal, or private. Throughout their leave, women are entitled to their full salary and, should they decide they need to extend their leave, they are paid one-half their normal wages for sixty days. Furthermore, women are guaranteed either the same or a similar job if they return within one year of their child's birth, and they continue to accrue seniority while on leave.
Great, right? Well, it is unless you're a woman working the assembly lines for one of Mexico's nearly three thousand maquiladoras, or factories operated under a program to encourage foreign investment in the country by companies such as General Motors, General Electric, Zenith, Panasonic, Sunbeam-Oster, Sanyo, and AT&T. At least 90 percent of the factories are run by American companies, and they get away with subjecting female applicants and employees to mandatory urine testing and invasive questions regarding contraceptive use, menstruation schedule, and sexual habits. Human Rights Watch found that all these companies require pregnancy exams as a condition of employment, subjecting women to different hiring criteria than men; once hired, if a woman becomes pregnant, she is forced into difficult work situations in an effort to make her resign.
Is this the American way?
We certainly didn't learn from our “mother country,” England. There, statutory maternity pay (notice again, nothing about “disability”) is paid during the twenty-six weeks of ordinary maternity leave. It's 90 percent of an employee's average earnings for the first six weeks of leave, and then reduced to a flat $195 a week thereafter.
In Sweden there is no specific “maternity leave.” Instead, in the interest of true equality, Sweden provides prenatal, childbirth, and postnatal care and a total of eighteen months of paid leave per child for families in which both parents are employed. This leave is available from birth or adoption of a child until the child turns eight years old and may be split between the two parents in any way. During leave, parents are entitled to 90 percent of their gross earnings for the first year and to a reduced rate for the remaining six months. Sweden also has a publicly funded day care program designed to take over where the parental leave program ends. The program is available to children between the ages of eighteen months and twelve years.
Doesn't that sound civilized? The expense is vastly outweighed by long-term employee loyalty, increased productivity, and a positive national morale that such pro-parent policies encourage.
Since it is unlikely that we will be able to implement Europeanstyle pregnancy and maternity leave, we should try to get every state in the Union to pass a paid-leave bill. Massachusetts has taken the lead in this arena, with a family-friendly proposal that offers workers in the state (both male and female) up to twelve weeks of paid leave to care for newborns, adopted children, or sick family members. It's also available to care for elderly parents or if you get sick down the line. Here's how the plan works: it's a voluntary program, like disability or life insurance, in which employees would contribute around $2 a week to a state-managed savings plan. When faced with a family emergency, employees would get the time off they need and still get paid up to $750 a week. In addition, the plan ensures job security, making it illegal to fire an employee who takes paid leave under the new policy.
This proposal comes on the heels of recently signed legislation in Massachusetts extending health insurance to nearly every Massachusetts state resident. If the Massachusetts paid-leave bill passes, the plan would cover an additional three million workers in public and private sectors. Critics of the legislation argue that requiring workers to pay a premium could encourage more time off and financially strain already overstretched businesses. While it's true that more people would take leave, research studies show employers actually benefit, saving hundreds of millions of dollars when factoring in less turnover and fewer sick days.
The Massachusetts bill is the right law at the right time. It's high time that we caught up with the rest of the world. Massachusetts moms (and dads) will no longer have to choose between caring for their families or supporting them. It's a big step forward for women, and I hope it will serve as a blueprint for the rest of the country. We need to demand to be supported by our country and our employers, not considered a burden because we're also mothers. As one woman said to me, “I had a baby, not a lobotomy!”