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Getting off the mommy track: an international model law solution to the global maternity discrimination crisis.

ABSTRACT

Women's roles in workplaces around the globe have been growing steadily for the past half-century. Yet, in everything from pay to advancement, workplace gender discrimination persists, much of it based on women's unique role as child bearers. Of the countless domestic and international efforts to address maternity discrimination, none has been completely successful. Drawing from the history of maternity leave legislation and the examples of domestic and international regimes, this Note proposes a unique solution to an international problem: an international model law. The Global Maternity Protection Act model law proposed here provides global protection for a global problem and aims to make all women equal by providing all women with the same benefits and protections, regardless of nationality. A model law solution is easily adopted and enforced and provides universal equality, a combination of objectives that is unattainable through legislation that is either purely domestic or purely international.
TABLE OF CONTENTS

I. INTRODUCTION
II. FACTUAL BACKGROUND
    A. The "Motherhood Penalty" and Other
       Problems of Maternity Discrimination
    B. From Paternalism to Parity: The
       History of Paid Maternity Leave Reform
III. ANALYSIS
    A. Domestic Efforts
       1. The United States
       2. The United Kingdom
       3. Sweden
    B. International Efforts
       1. The Convention on the Elimination
          of all Forms of Discrimination
          of 1979
       2. Workers with Family Responsibilities
          Convention of 1981
       3. Maternity Protection Convention
          of 2000
IV. SOLUTION
    A. Note on the Difficulty of International
       Solutions
    B. The Model Law Approach
    C. The Global Maternity Protection Act
V. CONCLUSION


I. INTRODUCTION

For every one hundred men who graduated with a college degree of some kind in 2013, 140 women did the same. (1) This phenomenon is hardly new. Women have outpaced men in earning post-secondary degrees every year since 1982, earning a total of 44.1 million degrees between 1982 and 2013--nearly 10 million more degrees than men earned in the same period. (2) In 2013, the U.S. Department of Education projected that women would "earn 61.6 [percent] of all associate's degrees," "56.7 [percent] of all bachelor's degrees," "59.9 [percent] of all master's degrees," and "51.6 [percent] of all doctor[ate] degrees" taken home that year. (3)

Yet something is happening to women between graduation and retirement. While women earned 46 percent of law degrees in 2011, they held only 31 percent of legal jobs and 15 percent of equity partnerships. (4) In 2011, 36.8 percent of MBA graduates were women, but in 2014, only 5.2 percent of Fortune 1000 CEOs were women. (5) Women have earned the majority of PhDs since 2001 but in 2003 held "only 35 percent of tenured or tenure-track faculty" professorships. (6)

Commentators have pointed to four main theories to account for this staggering disparity between the number of women qualified for jobs and the disproportionate number of men who receive them. (7) First, the "glass ceiling" explanation focuses on gender discrimination due to various social causes, such as gender stereotyping. (8) These stereotypes include frowning upon the same personality traits in women that are prized in male leaders--traits like assertiveness and independence. These social causes also include the expectation for women to work in staff positions, "such as human resources and administrative services, rather than ... positions" controlling business operations. (9) The second theory, the "pipeline" argument, suggests that the historically lower number of qualified women in occupations means few women are "in the pipeline" for leadership positions. (10) This argument is discredited by the fact that, for the past thirty years, the majority of qualified graduates flowing into the "pipeline" have been women. (11) Third, the "evolutionary psychology" approach suggests "that women are not genetically predisposed to [leadership] roles." (12) Finally, the "24/7 economy" has been used as an explanation for why women are unable to keep pace with "the time and energy needed ... in today's competitive business environment." (13) Under the 24/7 economy theory, scholars argue that women are more likely to be the head "of [a] single-parent household^ and remain responsible for" the majority of "parenting [and household] duties in two-parent households," and, therefore, are unable to keep up with the demands of "traditional working arrangements ... configured around a career model established in the nineteenth century" that expect complete career dedication. (14)

Building on this fourth approach, researchers at the University of Kentucky have proposed a fifth explanation, the "family-work conflict bias."15 "The family-work conflict bias means that just being a woman signals to a manager that her family will interfere with her work, irrespective of whether or not that woman actually has family-work conflict, is married, has children, or has children of a certain age." (16) The researchers interviewed managers (both male and female) who reported that they felt "that higher-level positions required ... more availability" than lower-level positions, flexibility that they thought women's family responsibilities made them unable to provide. (17) The managers "generally viewed women as having a greater [degree of] family-work conflict." (18) The managers believed that this family-work conflict "is incompatible with a work environment that demands long hours and 'face time.'" (19)

Independent empirical information from around the world supports the family-work conflict bias theory. Numerous studies have shown that "mothers are judged as less competent ... and are less likely to be hired and promoted" than either men or childless women. (20) Women regularly report being made to sign pledges that they will not become pregnant, being forced to undergo pregnancy tests by their employers, or being harassed or fired after becoming pregnant. (21) Two-thirds of young Arab women cannot enter the workforce "because of weak gender discrimination laws and lack of childcare solutions." (22) According to a 2013 report by the United Kingdom's House of Commons Library, nearly "14 [percent] of the 340,000 women who take maternity leave" in the UK each year find their jobs threatened upon return. (23) The Business, Innovation and Skills Committee of the House of Commons also reported in 2012 that "an estimated 30,000 [UK] women ... lost their jobs as a result of pregnancy discrimination," a staggering "8% of all pregnant women in the workforce." (24) The Canadian Saskatchewan Human Rights Commission reports that 10 percent of workplace discrimination complaints cite to pregnancy discrimination. (25)

Recognizing the problem with maternity discrimination, nearly every country in the world has implemented workplace parental protections. Most prominently, every country in the world has implemented paid maternity leave except for Suriname, Papua New Guinea, and the United States. (26) Three international instruments--the United Nations' Convention on the Elimination of All Forms of Discrimination Against Women of 1979, the International Labour Organization's Workers with Family Responsibilities Convention of 1981, and the International Labour Organization's Maternity Protection Convention of 2000--address the right to paid maternity leave and other protections. The benefits of paid maternity leave regimes--including long-term child health, (27) maternal mental health, (28) decreased dependence on public social welfare programs, (29) greater likelihood that women will return to work, (30) and social morality (31)--made these regimes an attractive option for combatting maternity discrimination. Yet, despite global efforts, discrimination persists. In short, professional women all over the world are finding themselves on the proverbial "mommy track" (32)--working shorter hours with fewer responsibilities, lower pay, and less chance of advancement (33)--despite the many levels of protection offered in different paid regimes.

Paid maternity leave is not enough to solve the problems of maternity discrimination, gender inequality in the workplace, and lack of representation of women in leadership. Recent research shows that the biggest effect of paid maternity leave may be a nod to the idea of equality and inclusion, more than an actual tool for it. (34) Without sufficient antidiscrimination legislation behind paid leave regimes, most nations with paid leave have been as helpless as the United States in attempting to stop the discrimination that women often face when returning to work.

This Note examines the benefits and failures of existing maternity protection regimes and proposes a new solution rooted in existing domestic and international antidiscrimination legislation. The Note focuses on three maternity leave regimes: the United States, United Kingdom, and Sweden. Part II outlines the factual background of the maternity discrimination problem, including the social, health, and economic consequences for women and the history and effectiveness of paid maternity leave as a solution. Part III analyzes the different protection regimes that have been implemented to fight discrimination, both international and domestic, and the successes and failures of each. Part IV proposes a new reform, the Global Maternity Protection Act, a model law that draws from the best domestic and international proposals and can be adopted by every state and modified to their unique needs. Drawing from the best features of existing maternity protection regimes, the proposed Global Maternity Protection Act would thus be the most comprehensive maternity protection system in practice.

II. FACTUAL BACKGROUND

For the purposes of this Note, maternity discrimination is defined as inequitable workplace treatment of women with children as compared to other workers, including both women without children and men. (35) The problems with maternity discrimination are threefold. First, discrimination adds to societal gender inequality. (36) Second, women are often forced to make parenting decisions based on their fear of workplace discrimination, decisions that have a serious, long-lasting impact on the physical and mental health of both mother and child. (37) Third, empirical data shows that maternity discrimination has a negative impact on the mother--the so-called "motherhood penalty"--as well as on the wider economy. (38) This Part analyzes these problems as well as the history and efficacy of paid maternity leave as a solution to these problems.

A. The "Motherhood Penalty" and Other Problems of Maternity Discrimination

As detailed in the Part I, the overarching problem of maternity discrimination is a lack of career stability and advancement for women. This lack of stability and advancement has broad consequences not only for the women affected but also for the wider economy and society.

First, maternity discrimination is a basic human rights concern. Building on the foundational affirmation of universal equality in the United Nations Universal Declaration of Human Rights, (39) international actions such as the UN's adoption of the Convention on the Elimination of All Forms of Discrimination Against Women (40) and the establishment of the United Nations Entity for Gender Equality and the Empowerment of Women (41) show that gender equality is a global policy priority. In addition to these global initiatives, numerous regional agreements and associations, including the Charter of Fundamental Rights of the European Union, (42) the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women, (43) and Inter-American Commission of Women, (44) recognize the importance of gender equality. Many states have adopted independent standards for gender equality as well. (45) Maternity discrimination undermines these policies not only because maternity discrimination is de facto gender discrimination but also because it undermines the traditional tools for fighting for human rights, including economic development and political action, by lessening women's power in society. (46)

Second, maternity discrimination impacts women's choices about parenting, often with negative consequences. In 2011, the world average age for women at the birth of their first child was between twenty-seven and twenty-eight, while the most recent U.S. average is twenty-five. (47) In the United States, the labor force participation rate of women with children under age eighteen peaked in 2000 at 73 percent, up from approximately 47 percent in 1975. (48) According to the Organisation for Economic Co-operation and Development (OECD), (49) in 2011, the median age of mothers at the birth of their first child was nearly twenty-eight. (50) In 2013, the labor force participation rate for women aged 25-29 was 81.9 percent, 77.2 percent, and 73.6 percent for Sweden, the UK, and the United States, respectively. (51) Based on these numbers, one can assume that the majority of new mothers in Sweden, the UK, and the United States are likely to be in the labor force when their children are born. (52)

In the United States, median maternal age at first birth rose over roughly the same time frame as mothers' participation in the workforce. (53) In 1970, the median age of a new mother was twenty-two; by 2006, it was twenty-five. (54) Over the same period, the number of first-time mothers over the age of thirty-five increased nearly eight times, from one in 100 births to one in twelve. (55) These numbers may suggest that many women are choosing to postpone having children rather than having them early in their careers. A recent national study showed that most women spent an average of five years on the job before becoming pregnant. (56) For women working in salaried positions, the average age at first birth was thirty-one. (57) The decrease in women's pay and career advancement over a similar age range (58) could suggest that worries about career impact are part of the calculation. Indeed, research from Northeastern University has shown that women who wait longer to have children make more money over their lifetimes. (59)

There is a dark side to waiting. Female fertility begins to drop around age twenty-five; by her late thirties, a woman's chances of conceiving can be as low as 52 percent. (60) At the same time as chances of conceiving begin to decline, the chances of complications climb: women in their forties have a one-in-seventy-five chance of fetal Down syndrome and a 50 percent chance of miscarriage. (61) Advanced maternal age has also been linked to significantly higher rates of autism. (62) According to a decade-long study conducted at the University of California, Davis, the chances of autism increase by 18 percent for every five-year increase in maternal age, so that a child born to a woman over forty had a 50 percent greater chance of developing autism than a child born to a woman in her late twenties. (63) Advanced maternal age has also been linked to a variety of other birth-related conditions, including low birth-weight, chromosomal aberrations, and congenital abnormalities. (64) In short, women's decisions to put off having children in order to further their career goals may have significant medical consequences.

Finally, and perhaps with the most universal appeal, is the economic burden of the "motherhood penalty." Studies suggest that, on average, women suffer a wage penalty of 5 percent per child, a reduction that cannot be accounted for by human capital or occupational factors. (65) According to the Pew Research Center, in 2012 women's hourly wages were, on average, 84 percent of what men made in the same job. (66) For young women ages 25-34, the pay gap is closer to 93 percent. (67) Because motherhood is a factor in this disparity, this likely means that the pay gap between non-mothers and mothers is roughly the same as between non-mothers and men--9 percent versus 7 percent. (68)

Another poll from the nonprofit group Family Inequality showed women's wages as a percentage of men's, adjusted for two variables: children and education. (69) While average wages for women hovered at approximately 70-80 percent of men's at every education level, there was a stark difference between the overall average for women and women in the "never married, no kids" category. (70) Women in the latter category earned between 83 and 93 percent of what men did, compared to the overall average of between 71 and 79 percent. (71) Having no children was a greater indicator of wage equality even than working more than fifty hours a week. (72) The data also suggests that even women who do not yet have children might be suffering from the early effects of the motherhood penalty: while the income parity was better for the category containing women who were married but childless, it was still lower than that for unmarried, childless women, at between 80 and 87 percent of comparable men's salaries. (73) This data suggests that even the possibility of impending motherhood, as suggested by marriage, may be an economic penalty to women. (74)

These demonstrable economic penalties to motherhood not only threaten the economic stability of these women but also have a negative impact on the economy as a whole. A 2011 McKinsey study showed that increasing women's participation in the U.S. workforce to a level more comparable to Sweden's could add 3 to 4 percent to the size of the U.S. economy. (75) Moreover, economists theorize that, because women are more likely to spend additional income, the cumulative effect of closing the pay gap "could be extremely important in terms of products purchased and jobs created." (76) In short, "[i]f you're not using your human resources to your full capacity, you're leaving money on the table." (77)

Keeping in mind the problems of maternity discrimination that maternity protections are designed to combat, Part II.B examines, first, the history of paid maternity leave as the major mechanism of protection in modern maternity protection regimes and, second, its effectiveness in combatting these problems.

B. From Paternalism to Parity: The History of Paid Maternity Leave Reform

Maternity leave began as a function of industrialization in Europe in the mid- to late-nineteenth century. (78) High infant mortality rates proliferated during the early industrial revolution, most likely as a function of urbanization and unsafe methods of artificial feeding for mothers who were unable to breastfeed. (79) Contemporaries posited that the high rates of infant deaths were due to the increasingly large percentage of women working outside the home, under the dual theories that married women working outside the home was a general threat and that working-class women were ignorant and incapable of proper childcare. (80) These attitudes were typical of Victorian morality, which held that a woman's proper place was the domestic sphere; thus, "the assumption that a working mother entailed a neglected child was sacrosanct." (81)

Calls for maternity leave began in the late nineteenth century largely out of concern for the welfare of the child rather than any concern for the working conditions of the mother. (82) A paper delivered at the 1892 Annual Meeting of the British Medical Association that claimed to link maternal employment to infant mortality rates defined the literature on infant mortality for the next two decades. (83)

In England, the First National Conference on Infant Mortality of 1906 issued resolutions calling for the government "to extend ... a legal prohibition on the industrial employment of women" for three months after childbirth. (84) By that time, Germany had already adopted a compulsory maternity leave law, in 1883; Sweden came next in 1891. (85) In 1919, the International Labour Organization (ILO) (then an organization of the League of Nations) made a multinational recommendation "advocating] three fundamentals of maternity protection: a leave period, cash benefits, and job protection." (86) Outside Europe, in 1910, the International Feminist Congress meeting in Buenos Aires, Argentina, put forward a comprehensive program that called for women's suffrage, access to education, and wide-ranging social legislation to protect working women. (87) However, the primary motivation for these laws continued to be protectionist rather than feminist. (88)

It was not until the 1960s that maternity leave evolved from a policy designed to prohibit women from working shortly after childbirth to one meant to offer new parents time off with their newborn as well as job security. (89) During the next two decades, countries that already had leave requirements added job protections, while other states enacted new regimes providing job-protected maternity leave. (90) This shift in goals can be traced through the revisions in the Maternity Protection Conventions of 1919, 1952, and 2000.91 The 1919 convention required that "a woman shall not be permitted to work during the six weeks following her confinement," reflecting the predominant focus on paternalism, and permitted employers to dismiss women if their absence exceeded six weeks or gave rise to an illness "rendering her unfit for work," evidencing a lack of concern with job security. (92) By 1952, the convention had adopted the term "maternity leave" for a period of twelve weeks, with at least a six-week mandatory leave. (93) While both these changes may suggest a more liberal view of the purposes of maternity leave than the 1919 convention, the 1952 convention allowed for dismissal of employees on leave without the limiting justifications present in the 1919 convention, thus providing even less job security. (94) The 2000 convention lengthened the leave period to fourteen weeks, with six weeks of compulsory leave, and reversed the prior conventions' positions on dismissal by affirmatively stating "[i]t shall be unlawful for an employer to terminate the employment of a woman during her pregnancy or absence on leave," evidencing concern both for giving women more leave and for job security after leave. (95)

The endurance of compulsory leave laws through this shift has left lingering questions about the motivation of these laws: do they stand as part of a paternalistic desire to ensure women fulfill their roles as mothers, (96) or do they offer additional job security protections for women who might otherwise feel pressured to return to work early? Today, nearly all industrialized nations offer periods of maternity leave, which may or may not be compulsory, along with income support. (97)

Paid leave has been effective in combatting many aspects of the problems detailed in Part II.A. Some commentators view social morality as the ultimate purpose of offering paid maternity leave, (98) in line with the shifting purposes behind the laws beginning in the 1960s. As for health, the provision of paid parental leave has been linked to a number of positive health outcomes for both mothers and children. A 2004 study of U.S. mothers found that returning to work later may reduce the quantity and frequency of depressive symptoms in new mothers. (99) Moreover, a twenty-five year study of nine European countries found that more generous leave policies substantially reduced the risk of death for infants and young children, (100) echoing the original purpose behind maternity leave policies, and concluded that parental leave may be a cost-effective way of bettering child health. (101) This conclusion highlights both the health and economic benefits of maternity leave policies. (102)

Similarly, a twelve-year U.S. study concluded that providing maternity leave was an economic benefit to both families and businesses. The study found that women who use[d] paid leave were significantly more likely to be back at work nine to twelve months following childbirth and reported increased wages. (103) Researchers also discovered lower costs to businesses "in the form of employee replacement costs" and lower costs to the government due to decreased dependence on public social welfare programs. (104) A forty-year study of OECD countries confirmed this positive impact on women's ability to return to work on an international scale, finding a positive influence on female employment rates, on the gender ratio in employment, and on the average number of hours worked by women relative to men for leave policies of no more than two years. (105)

However, paid leave policies have not been without their problems. As discussed above, there is a debate about whether compulsory leave policies reflect a continued paternalistic motive of the state to force a woman into her "traditional role." (106) Moreover, the same examination of OECD findings cited above also found that the provision of paid leave "widen [ed] the earnings gender gap among full-time employees." (107) Commentators have pointed out that even in countries like Sweden, where paid leave policies are most generous and most successful, the majority of women work in the public sector and are even more unrepresented in corporate management than in the United States. (108)

Taken together, the history, successes, and failures of modern maternity leave programs offer three conclusions. First, the modern maternity leave system is a vestige of a scheme developed over a century and a half ago with very different policy goals than today. Nonetheless, the modern goals of maternity leave, including gender equality, children's and maternal health, and economic development, continue to be served by periods of extended, paid maternity leave. However, paid maternity leave alone is not an effective policy for providing long-term equality or economic benefits to professional women. This makes sense given that the initial Victorian framers of maternity leave regimes never envisioned a system aimed at achieving gender goals of any kind, much less equality. (109) Thus, a successful scheme of maternity protection must include not only maternity leave but other protections as well. Part III examines different types of maternity protection regimes, both domestic and international in scope, to determine what works and what does not.

III. ANALYSIS

As discussed in Part II.A, gender equality and the need for maternity protection have been recognized repeatedly on the international stage as human rights concerns. Numerous domestic and international solutions have been proposed. Part III.A discusses maternity protection regimes of three countries, including provisions for both maternity leave and other protections, to determine the most and least successful parts of each. Part III.B offers a discussion of three international conventions that speak to maternity and their successes and failures.

A. Domestic Efforts

Nearly every state mandates that employers offer some kind of maternity leave. (110) These regimes have four significant categories, variations in which set one system apart from another: (1) the percentage of their salaries women continue to receive (ranging from 100 percent of normal salary (111) to federal minimum wage (112)), (2) the amount of time and flexibility offered (from sixty days (113) to 480 days, (114) with time sometimes offered both before and after birth (115)), (3) who actually pays the benefit (the employer (116) or social security (117)), and (4) whether the benefit is also available to spouses and co-parents. (118)

The three states discussed here are representative of the major variations in these four features. The Family and Medical Leave Act (FMLA) is representative of low-protection regimes and reflects only category (2), requiring that employers offer at least twelve weeks of leave for general family and medical situations, including the birth of a child. (119) Employers who choose to pay benefits do so themselves. (120) The United Kingdom's Maternity and Parental Leave Regulations of 1999 represent all four categories: women receive (1) both a percentage of their salary and a flat fee, (2) up to one year of leave, (3) benefits are paid by employers, and (4) parental leave is available to both parents. (121) Sweden's Parental Leave Act of 1995 also represents all four categories, but on different terms than the UK's: women receive pay (1) at or near their full salary (2) for up to 480 days (3) to be paid by social security, (4) with part of that time reserved for use by their co-parent. (122) All three systems are discussed in detail below.

1. The United States

The United States does not have a national and comprehensive regulatory regime dealing with maternity leave and discrimination. Instead, four major federal statutes cover various pregnancy-related employment issues. The FMLA requires that employers offer at least twelve workweeks of leave per year for a number of family, caregiving, and medical situations, including the birth of a child and caring for the child within the first year after birth. (123) However, the FMLA does not require that this leave be paid. (124) Next, the Pregnancy Discrimination Act of 1978 (PDA) amended Title VII of the Civil Rights Act of 1964 to prohibit discrimination in employment "on the basis of pregnancy, childbirth, or related medical conditions." (125) The PDA creates an actionable mandate that affected women "shall be treated the same for all employment-related purposes, including receipt of benefits." (126) Third, the Americans with Disabilities Act (ADA) covers impairments relating to pregnancy that amount to temporary disabilities, including gestational diabetes and preeclampsia. (127) Supreme Court cases had previously limited an employee's ability to bring a disability claim based on pregnancy. (128) However, the ADA Amendments Act of 2008 (ADAAA) broadened the statutory definition of "disability," which had previously been narrowly interpreted by the Supreme Court, and made it easier to establish that a condition is a statutory disability. (129) It has been suggested that the enactment of the ADAAA might change this determination. (130) Most recently, in 2010, the passage of the Affordable Care Act included an amendment to the Fair Labor Standards Act (FLSA) giving nursing mothers the "right to pump." (131) Providing an additional workplace protection to new mothers, the "right to pump" requires employers to offer new mothers break time and a private location to pump breast milk while at work. (132)

However, even in combination, these laws provide incomplete protection for new mothers and fall far below the standards of most industrialized states. (133) While the U.S. system makes it an outlier among other nations, that the national government has maintained a hands-off approach is not surprising. Commitments to state sovereignty and free markets in particular hinder the United States government's ability and desire to offer nationwide mandates. (134)

Beginning with state action, only three U.S. states--California, New Jersey, 135 and Rhode Island 136--mandate paid maternity leave. (137) These state efforts offer some room for hope that this state action can be a model for national legislation. For example, the recent amendment to the FLSA came after over a dozen states adopted similar "right to pump" laws; similarly, Congress adopted the FMLA after twenty-three states put similar measures in place. (138) Recently, Washington became the fourth state to begin taking steps toward mandating paid maternity leave. (139) If more states join California, New Jersey, Rhode Island, and Washington, the federal government may be more likely to follow. (140) In fact, at the White House Summit on Working Families, held in June 2014, U.S. President Barack Obama called for equal pay, paid leave, workplace flexibility, greater access to child care options, and increased workplace discrimination protections, including protections against pregnancy discrimination. This may be a sign that national leaders are beginning to support a more comprehensive and protective regime. (141)

The federal government traditionally favors private, free-market solutions to employment issues. Unfortunately, businesses have responded with only marginal maternity protections. According to the Families and Work Institute, in 2012, approximately 58 percent of U.S. employers offered some replacement pay for maternity leave. (142) However, of those employers, only approximately 9 percent offered full pay to women on leave, while 63 percent offered only partial pay. (143) Another 28 percent of employers said it depends upon the situation. (144) Notably, these numbers were down from the Families and Work Institute's 2005 estimates, where fewer employers reported offering pay, but approximately 17 percent of employers who offered some type of pay reported offering full paid leave. (145) The current numbers leave 42 percent of women without any replacement pay, with the vast majority of the remaining women receiving only partial pay. (146)

In addition to state action and free-market solutions, court decisions also impact U.S. domestic policy. The landmark U.S. case on pregnancy discrimination is General Electric Co. v. Gilbert, in which the Supreme Court refused to recognize pregnancy as a disease or discrimination based on pregnancy as sex or disability discrimination. (147) The Court based this conclusion on the fact that, because not all women were pregnant, discrimination against pregnancy did not ordinarily equal sex discrimination. (148) One year later, in Nashville Gas Co. v. Satty, the Court held that that provision of sick pay for other temporary disabilities and illnesses, but not pregnancy-related disability and illness, did not violate Title VII of the Civil Rights Act of 1964.149 However, the Court also held that this policy would violate Title VII if the employee was denied payment as a "pretex[t] designed to effect an invidious discrimination against the members of one sex." (150) Thus, employers could opt out of providing pregnancy benefits as part of their disability plan without violating any employment law. (151) These cases essentially foreclose challenges under Title VII to all but the most blatant maternity discrimination.

Following the decisions in Gilbert and Satty, Congress passed an amendment to Title VII known as the Pregnancy Discrimination Act, which provided a definition of discrimination "because of' or "based on sex" that included discrimination "because of or on the basis of pregnancy, childbirth or related medical conditions" and required that "women affected by pregnancy, childbirth or related medical conditions 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." (152) The legislative history of the PDA shows that Congress was motivated by its understanding that "[t]he assumption that women will become pregnant and leave the labor force leads to the view of women as marginal workers, and is the root of the discriminatory practices which keep women in low-paying and dead-end jobs." (153) Still, even after the PDA's passage, Gilbert's rationale persevered. (154)

However, there has been new movement in litigation regarding pregnancy discrimination and the definition of disability since the enactment of the AD AAA. (155) While courts continue to follow the longstanding rule of refusing to recognize pregnancy as a per se disability, since the enactment of the AD AAA, federal district courts have become more willing to evaluate pregnancy on a case-by-case basis in cases alleging disability discrimination. (156) However, as of February 2014, no case has used the ADAAA to recognize pregnancy as a disability, at least not without evidence of an aggravating health condition.

The combination of the PDA and ADAAA offers one of the most effective maternity protections in the U.S. regime. (157) This is because the ADAAA expands an employer's duty to accommodate temporary disability (158) The PDA, in turn, requires that pregnant employees be treated the same as those with temporary disabilities. (159) This combination offers an added level of job security to pregnant women on top of that already offered by the PDA, as well as making it possible for more women to continue working during pregnancy through accommodation. (160) The United States' regime is thus fairly successful in protecting women during their pregnancy. However, this protection does not extend past childbirth. The U.S. tradition of at-will employment regimes, in which most employees can be fired at any time for any reason or no reason at all, offers little protection for women who find themselves demoted, passed over, or fired after returning to work. (161) Remedies for this kind of adverse employment action vary, but the most common are claims for denials of FMLA leave and gender discrimination under Title VII. (162)

In addition to failing to offer paid maternity leave and postpartum protections for new mothers, the United States also fails to provide a number of other maternity protections. Unlike Sweden and a number of other more successful maternity regimes, the United States has no provision specifically addressing childcare for new parents. (163) Professor Waldfogel has highlighted the high cost of private childcare as one of the key failures of both the United States and the United Kingdom's maternity protection regimes because of the added expense of private child care for new parents. (164) Moreover, the United States has no national provision for paid paternity leave, another key feature of regimes like Sweden's. (165) While fathers as well as mothers are entitled to take up to twelve weeks of FMLA leave per year for any reason, only California and New Jersey require that men be allowed to take six weeks of paid paternity leave, the same as its requirements for new mothers. (166) Additionally, the FMLA's general leave allowances are in no way compulsory. (167) While the purpose of compulsory leave is sometimes suspect, compulsory leave also alleviates pressure from women to return to work prematurely. (168) The FMLA's generic provisions offer no protection to women who feel pressured to return to work without taking their full twelve-week leave. (169) In fact, most U.S. women do not take the entire FMLA period: according to census data, 25 percent of mothers return to work within two months, while 10 percent return to work in four weeks or less. (170)
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Title Annotation:Abstract through III. Analysis A. Domestic Efforts 1. The United States, p. 1465-1490
Author:Rickard, Caraline
Publication:Vanderbilt Journal of Transnational Law
Date:Nov 1, 2014
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