Paid leave
The Civil Rights Origins of “Family and Medical Leave”
How advocates’ creative use of anti-discrimination law in the 1970s-80s continues to shape U.S. leave policy.
--
This week, congressional Democrats and the Biden administration announced a paid family and medical leave proposal as part of an expansive plan to remake social policy in the United States. The plan, which builds on proposals supported by a broad coalition of advocacy organizations, would provide 12 weeks of paid leave to workers who are ill, pregnant, new parents, or caregivers for ill family members.
As advocates, scholars, and journalists often point out, the United States is the only industrialized country which does not guarantee paid maternity leave. This plan would finally bring the US in line with other countries.
But the plan also underscores other ways in which US leave policy has been distinctive. Unlike the prevalent pattern globally that provides different maternity and paternity leave benefits, the plan has a gender-neutral design where new mothers and new fathers would have access to the same leave benefit. If the plan passes, the US will leapfrog many industrialized countries in the generosity of leave to care for ill family members. These distinctive features are the result of the paid leave plan adopting the gender-neutral and broad-coverage design of the Family and Medical Leave Act (FMLA) of 1993, which offers 12 weeks of unpaid leave for pregnancy, medical, parental, or caregiving purposes.
In my recently published research article in Studies in American Political Development, I trace how the gender-neutral and broad-coverage design of leave policy developed as a result of advocates’ creative and strategic decisions to use the anti-discrimination laws to pursue their goal of securing access to maternity leave.
As early as the 1920s, women’s movement activists and labor feminists had fought for a paid maternity leave guarantee funded by a payroll tax. Many industrialized countries around the world adopted such policies, but the advocates’ efforts in the United States did not yield success.
By the 1960s, the situation remained bleak: no states required employers to provide maternity leave with job security, only one required some meager pay during leave, and six states had mandatory leave policies where pregnant women had no job security or wage compensation.
In 1964, however, advocates gained a new tool in their fight to secure maternity leave: the newly passed Civil Rights Act prohibited sex discrimination in employment. The idea of how to apply this new anti-discrimination law to the problem of maternity leave emerged in the Citizens Advisory Council on the Status of Women, a federal advisory body made up of advocates and policymakers.
In 1970, the Council issued a policy recommendation that providing sick leave benefits to male workers but not providing similar pregnancy leave benefits to women constituted sex discrimination. As the chair of the Council would explain, this anti-discrimination approach entailed analogizing maternity leave to other kinds of leave: leave during pregnancy could be analogized to leave during sickness, while parental leave after childbirth was more straightforwardly applicable to both men and women.
The EEOC, the federal agency charged with enforcing employment discrimination law, had slowly begun to create regulations about sex discrimination after sustained pressure from feminists outside and inside the agency. In a significant victory for advocates, the EEOC’s new rules on sex discrimination in 1972 adopted the Council’s recommendation, stating that employers must treat pregnancy in the same manner as “temporary disabilities” (a term used at the time to describe illnesses and injuries). If an employer offered sick leave to their male workers, the EEOC considered it illegal to not also offer pregnancy leave on the same terms. As press coverage of the new rule and litigation based on it grew, employers became significantly more likely to offer job-protected maternity leave.
Meanwhile, many state governments took action amid growing pressure from activists. In the decade after the passage of the Civil Rights Act, a majority of states passed their own laws prohibiting sex discrimination in employment. Several states enacted regulations on pregnancy discrimination similar to the EEOC’s 1972 rule. Eight states went further, enacting laws or regulations that required employers to provide job-protected leave during pregnancy, regardless of the kind of leave they provided other workers.
These trends toward greater provision of maternity leave were threatened when employers challenged advocates’ interpretation of the law in court. In 1976, the Supreme Court ruled that the EEOC’s interpretation of the Civil Rights Act was wrong, and that denying leave benefits to pregnant workers did not constitute sex discrimination. The ruling set off a firestorm among advocates, who built a coalition of over 200 organizations to overturn the Court’s ruling. They succeeded with the passage of the Pregnancy Discrimination Act of 1978, which defined sex discrimination in federal law to include pregnancy discrimination.
The next judicial challenge proved harder to address. In the early 1980s, employers in Montana and California challenged their state’s pregnancy leave laws. They turned the anti-discrimination logic of civil rights against advocates: they argued that state laws requiring provision of pregnancy leave violated the new Pregnancy Discrimination Act, by requiring them to provide leave to pregnant workers that they did not necessarily provide to other workers. A federal district court ruling in favor of employers in 1984 signaled to advocates that this argument posed a real threat.
Advocates once again turned to a legislative strategy. A coalition of organizations led by the Women’s Legal Defense Fund worked with the Congressional Caucus for Women’s Issues to design a bill that would guarantee job-protected leave. They designed a gender-neutral bill: “disability leave” (later renamed “medical leave”) could be taken for sickness or pregnancy, and “parental leave” could be taken by men or women to care for children. This gender-neutral design aligned with anti-discrimination law and avoided potential legal challenges.
Crucially, the advocacy coalition and their legislative allies decided early on that pursuing a paid leave policy would not be feasible amid the anti-welfare politics of the 1980s and Republican control of the presidency and the Senate. Although civil rights law had been a useful tool for advocates, it did not offer a bridge to a redistributive policy.
In mid-1986, legislators and advocates expanded “parental leave” into a broader “family leave” that included leave to care for a seriously ill child, spouse, or parent. The decision to pursue a gender-neutral design that pooled medical and parental leave enabled the addition of further categories of leave, making way for the “family and medical leave” category that we recognize today.
In the following years, advocates and congressional Democrats made many compromises in order to seek Republican support. These compromises reduced the overall length of leave and significantly tightened eligibility requirements. However, advocates refused to budge on the gender-neutral and broad-coverage design of the policy, even as some legislators floated maternity-only leave policies. As Republicans continued to stymie efforts to pass the bill, many state governments passed their own leave laws that mirrored the design of the federal bill.
Finally, in 1993, the FMLA became the first major piece of legislation signed by President Clinton.
Since the late 1990s, advocates have sought to pass paid leave laws on the state and federal levels. These proposals generally adopt the gender-neutral and broad-coverage leave design and add a tax-funded program to cover a portion of wages during leave. This is the approach taken by all ten states and territories that have adopted paid leave laws since 2002. The contemporary paid leave advocacy coalition remains committed to a broad-coverage approach. For example, in response to Trump administration provide six weeks of paid parental leave only, advocates pushed back firmly and insisted on a broad-coverage policy that includes medical and caregiving leave as well.
Today, paid family and medical leave is a central component of Democrats’ agenda. After decades of restriction and retrenchment, liberals and progressives are seeking to move social welfare policies in a redistributive direction. While passage of a paid leave policy would mark a significant break with the past, it would also carry forward the legacies of advocates’ creative efforts to expand access to leave during the retrenchment era.
