The U.S. Supreme Court has agreed to review the case of a California receptionist who lost her job after taking maternity disability leave. At issue is the question of whether a state law ordering employers to provide up to four months of disability leave for pregnancy -- but not for other physical disabilities -- is discriminatory. As the news reports put it, the case has created unlikely bedfellows -- the Reagan administration, the National Organization for Women, and the U.S. Chamber of Commerce.
This is one sticky wicket, indeed.
The case was started by Lillian Garland, a receptionist at the California Federal Savings and Loan Association in Los Angeles, who gave birth by cesarean section in February 1982. Her doctor certified that she would be medically able to go back to work on April 21. When she returned she found her job had been filled and there were no equivalent jobs for her. She sued under a 1979 state law that requires employers to give up to four months' unpaid leave for pregnancy-related disabilities and the right to return to her job. Cal Fed claimed the law was discriminatory because it gave women preferential treatment. A federal district court agreed.
The 1979 California law was passed one year after Congress passed the Pregnancy Discrimination Act -- and while its intent may have reflected the spirit of that act, namely to extend protections to pregnant women -- the effect was to run headlong against the new federal law.
It is important to understand that maternity or parental leave is not the issue here; it is disability leave, leave taken because someone is physically unable to work. Traditionally, disability leave carried with it some wage replacement, insurance coverage, guarantees of returning to one's job, so that if an employe is hit by a car or has to undergo chemotherapy or recuperate from a heart attack, he or she is financially and professionally protected.
"The one exception," says Donna Lenhoff, of the Women's Legal Defense Fund, "was pregnancy. We didn't get insurance coverage, no sick leave, you can't accrue seniority during that period, we fire you. It was a whole host of discriminatory or worse treatment if one's disability were pregnancy related." The Supreme Court ruled, however, that these policies were not discriminatory. The court's logic was that the policies treated pregnant and nonpregnant people differently, but that since nonpregnant people are both men and women, the policies did not constitute sex discrimination.
That ruling led to the Pregnancy Discrimination Act, which held that employers cannot treat pregnancy or maternity-related conditions any differently from any other conditions that affect an employe's ability or inability to work. Thus, if an employer provides up to six months' disability leave for an employe who has a heart attack, he has to provide up to six months' disability leave for a woman who has had a disabling birth.
The California law, however, departs from the principle of extending the same rights to pregnancy disabilities as to other medically related disabilities and singles out women for preferential treatment. It requires employers to provide at least four months for maternity disability, but not for any other disability.
"We say California can't do that," says Lenhoff, "and what it has to do is, if it is going to provide that employers also have to provide reasonable or four-month disability leave for pregnancy then they have to provide four months for all other disabilities."
Robin Conrad of the U.S. Chamber's National Litigation Center says the California law, and similar laws in several other states, "put employers in the untenable position of violating federal law in an attempt to abide by state law."
The National Organization for Women has raised the possibility that preferential maternity disability laws might make it harder for women in their childbearing years to get jobs.
"The traditional remedy," says Lenhoff, "is for courts to order equalization in the future and extend the four months to all medical disabilities."
This approach -- backed by some women's groups but not by the administration or the U.S. Chamber -- would not single out women for preferential treatment; it would single out all disabled workers for civilized treatment. It would be one of those landmark decisions that would signal whether the brethren are making the laws for the gentlemen who rode in buckboards to the hunting and fishing lodges or whether they have grown with the century and are making laws for the majority of us who work for a living.