Why unpaid maternity leave isn't enough

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By Sharon Lerner
Sunday, June 13, 2010

When it comes to paid maternity leave, the United States is in the postpartum dark ages.

One hundred and seventy-seven nations -- including Djibouti, Haiti and Afghanistan -- have laws on the books requiring that all women, and in some cases men, receive both income and job-protected time off after the birth of a child. But here, the Family and Medical Leave Act of 1993 provides only unpaid leave, and most working mothers don't get to stay home with their newborns for the 12 weeks allowed by the law. Many aren't covered by the FMLA; others can't afford to take unpaid time off. Some go back to work a few weeks after giving birth, and some go back after mere days.

The century-long battle for maternity leave in America is a story of missed opportunities and historical accidents, further slowed by activists' miscalculations and some well-funded opposition. In other words: It didn't have to be this way.

As far back as 1919, when the Model T was switching from a crank to an electric starter, the U.S. government came close to signing on to an International Labor Organization agreement, supported by 33 countries, that said women workers should receive cash benefits in addition to job-protected leave for 12 weeks in the period surrounding childbirth. That same year, Julia Lathrop, the chief of the Labor Department's children's bureau, issued a report on international maternity leave policy in which she decried the United States as "one of the few great countries which as yet have no system of State or national assistance in maternity." She had recently returned from Europe, where Germany and France had paid-leave laws that had been in place for decades.

But this first real drive for maternity leave fell victim to petty infighting. Though many members of a key labor group wanted to include "maternity insurance" in its recommendations to Congress and President Woodrow Wilson, it was omitted after an internal dispute over who would be covered. Other early proponents of maternity benefits got tripped up by whether to insist that protections and income for pregnant women be part of national health coverage (which, sadly, they seemed to think was around the corner).

At other times, history has intervened. When women flooded the workforce during World War II, the Labor Department's women's bureau recommended that women get six weeks of prenatal leave, as well as two months following childbirth. Then, just as pressure for change was mounting, the war ended, men returned home to reclaim their jobs, and the drive fizzled.

Politics have posed an even bigger obstacle. The debate over maternity leave has long served as a proxy for tensions surrounding the presence of women in the workplace. Remember that, until 1978, it was legal in most states to fire women for becoming pregnant; some conservatives defended the practice as a way to encourage women to return to the home.

But even some feminists objected to giving women job-protected time off around birth, because they felt that their gains were too precarious, and their determination to ascend from the pit of sex discrimination was too great, to risk drawing further attention to maternity. In the early 1970s, some women challenged school board policies requiring pregnant teachers to take maternity leave for several months before and after birth. So it wasn't entirely surprising that, when Rep. Howard Berman (D-Calif.) spearheaded a national proposal for leave in 1984, it encountered the same resistance.

"Influential feminist activists in Washington opposed maternity leave because it wasn't treating women the same as men," says Joan Williams, director of the Center for WorkLife Law at the University of California at Hastings. "They said: 'No, no, no. We don't want national maternity leave. We want to fold maternity into other medical needs.' "

And that is what ultimately happened. During the decade or so when advocates pushed for what would become the Family and Medical Leave Act, their working definition of what leave should include shifted. At first, it applied only to mothers, then to new parents and later to all workers who need to care for family members. This change was good in that it allowed fathers to be more involved and helped broaden political support for leave legislation -- but it came at a price: The prospect of so many would-be leave-takers made business interests more aggressive than ever in their efforts to make sure that the time off wouldn't be paid.

"In Europe, it's parental leave," says Steven Wisensale, a professor of public policy at the University of Connecticut and the author of "Family Leave Policy: The Political Economy of Work and Family in America." "When you get into family leave and you're suddenly concerned about caring for elderly people, it becomes a little more nebulous."

And so, after years of debate, during which Sen. Bob Dole (R-Kan.) filibustered and President George H.W. Bush twice vetoed family leave legislation, the law President Bill Clinton finally signed in 1993 was so shrunken from its original form that it was barely recognizable.


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