Why the Family and Medical Leave Act of 1993 Should Be Amended:
The Act's Tenth Anniversary Should Prompt a Rethinking

This past summer, in Nevada Department of Human Resources v. Hibbs, the Supreme Court upheld the Family and Medical Leave Act of 1993 (FMLA). (The FMLA is a federal statute that guarantees certain employees twelve weeks of unpaid leave to care for a newborn or newly adopted child, to care for an ill family member, or because of the employee's own serious illness.)

The state of Nevada had challenged the Act as an unconstitutional infringement on its Eleventh Amendment sovereign immunity. But, as I discussed in an earlier column, the Court not only rejected Nevada's challenge, but also endorsed the statute as a tool to advance the cause of sex equality.

The Court's vision was inspiring. But how realistic was it? That is, how much has the FMLA really contributed to gender equality?

Unfortunately, an examination of the FMLA's impact on leave policies and leave-taking suggests the Court was unduly optimistic about its effect. Now, on the tenth anniversary of the Act's passage, it is high time we reviewed its effects - and consider how this statute, and others, may be amended to better serve their ostensible goals of promoting gender equality.

Before considering the alternatives, however, it's worth looking at the Court's vision of the FMLA; the modern day realities of leave-taking under the FMLA; and the legislative process that resulted in the FMLA.

The Supreme Court's Vision of the FMLA

The Supreme Court has held that, consistent with the limitations imposed by the Eleventh Amendment, Section 5 of the Fourteenth Amendment gives Congress the power to remedy and prevent unconstitutional discrimination. In Hibbs, the Court held that Congress validly exercised this power when it enacted the FMLA in order to promote equality for women in the employment context.

The FMLA requires that employers offer caretaking leave to men and women on equal terms. This, in itself, promotes sex equality, at least formally. But the FMLA was also supposed to go further: Under the Court's vision, once men and women were offered leave on equal terms, they were supposed to take it on equal terms. Men would thus share the burden of caring for children. And women would achieve equality not only as parents, but also as workers, for employers would lose the incentive to prefer men over women based on the idea that women would be likely to take more leave.

Ten years have passed since the FMLA was enacted, and the data points do not support this vision. The good news is that most employers covered by the FMLA have complied with its terms and made caretaking leave available on gender-neutral terms.

But the bad news is everything else.

Generally, men still don't take caretaking leave. Generally, as they did prior to enactment of the FMLA, women take caretaking leave whether they are guaranteed reinstatement or not. And generally, employers continue to view women as more costly - and therefore less desirable - as employees, because employers expect that women will take more leave than men.

The Legislative Process: A Bill to Accommodate Motherhood

As noted above, the Supreme Court attributed a very broad vision of equality to Congress when it considered and passed the FMLA. In fact, however, the FMLA's legislative history suggests something much less inspiring--a bill to accommodate motherhood, rather than one to induce equal parenthood.

The FMLA was the first law signed by President Clinton, just sixteen days after he was first inaugurated. Prior family leave bills had either failed in Congress or been vetoed by the first President Bush. Thus, although the FMLA was substantially weaker than previous bills (it offered shorter periods of leave and covered fewer employers), it was hailed as a victory for families and workers. There was little public discussion of its impact on gender equality.

Congress's formal findings with respect to the FMLA do include a statement that "it is important for the development of children and the family unit that fathers and mothers be able to participate in early childrearing." (Emphasis added). Yet most other evidence in the legislative record suggests that Congress understood that the parenting leave provided under the law, though available to men, would still be used primarily by women.

Both sides of the debate professed to have the goal of preventing discrimination against women. Meanwhile, both also operated with the implicit assumption that women would continue to be the primary caretakers of children and thus the ones to take FMLA leave.

Republicans claimed that if the FMLA was passed, women would suffer discrimination at the hands of employers who would then refuse to hire them at all. They cited to a Gallup poll reporting that forty percent of employers said they would be less likely to hire women of childbearing age if a law mandating leave for them was enacted.

As one Representative warned, speaking "as the father of four daughters," the FMLA would "legislate women into unemployment," since "the primary responsibility for child care still falls mainly to women; [and] women will be the predominate ones using mandated leave."

On the other hand, Democrats argued that if the FMLA did not pass, women would suffer discrimination at the hands of employers who would refuse to take them back following leave for childbirth, parenting, or other caretaking commitments. One proponent advocated for passage of the FMLA to eliminate discrimination against "working parents, and especially against working women who are still the primary care givers for most American families."

Even feminist advocates - who initially conceived of and drafted the FMLA - seemed, for reasons of political expedience, to become complicit in the assumption that women would be the main leave-takers. Indeed, they ultimately pitched the bill in "family-friendliness" terms, and appealed to men's desire for job protection during their own serious illnesses - not for job-guaranteed paternity leave.

Caretaking and Leave-Taking Before the FMLA: A Gendered Story

The data available during debate about the FMLA supported the assumption about women's caretaking, leave usage, and employer hostility.

Women in 1992--as they do today--performed the majority of caretaking tasks for children, even in two-income households. And, unsurprisingly, this allocation of childrearing responsibility induces gendered leave-taking patterns: If women must do most or all of the caretaking, it is difficult or impossible for them also to work without the ability to take leave if necessary.

Before the FMLA, leave was made available and taken on distinctly gendered terms. Four states passed FMLA-like legislation, but a comprehensive 1988 study by the Families and Work Institute showed the laws had almost no effect on the rate at which mothers took childbirth or parenting leave.

It also showed that, even before the state statutes were passed, eighty-three percent of employers surveyed reported that they already offered women an average of eleven weeks unpaid leave for disability related to childbirth, and an additional eight weeks for parenting leave. In sum, motherhood was accommodated even before doing so was legally mandatory.

Before mandatory leave laws, the needs of biological fathers were accommodated to a lesser extent. Sixty percent of employers reportedly offered some unpaid leave to fathers, but very few had a formal program for allowing it. Fatherhood was thus not accommodated to anywhere near the degree that motherhood was.

In the states that began to mandate paternity leave, a slightly greater number of fathers utilized it. But the average leave increased in length only from 3.7 to 4.7 days - most of which was taken as paid vacation or sick leave rather than unpaid parental leave.

Other studies have found similar leave-taking patterns for men. For instance, a 1986 survey conducted by Catalyst revealed that not a single male employee took available paternity leave in eighty-five percent of the establishments that offered it.

Congress had little reason to suspect the FMLA would alter the patterns seen under state mandated leave laws. Indeed, a report of the U.S. General Accounting Office, predicted that - under an earlier, stronger version of the FMLA - while men would make half of the leave requests under the FMLA, none of the requests would be made so that the men could care for newborn or newly adopted children.

The Impact of the FMLA: A Mirror of the Past

Two-thirds of covered employers made some change to their leave policies because of the FMLA. Yet very little else has changed.

A 2000 report of the Department of Labor provides the most recent data on the use of FMLA leave by employees. (The FMLA established the Commission on Family and Medical Leave, and gave it the responsibility for studying the impact of the legislation on both employers and employees.)

According to the 2000 survey, sixteen and a half percent of all workers took leave for an FMLA reason. An additional 3.5 million employees needed leave, but were not able to take it, most often because they could not afford to take unpaid leave.

Parenting obligations actually triggered a relatively small percentage of total leaves taken. Only 7.9 percent of leave-takers used the time for a pregnancy-related disability; 18.5 percent used it to care for a newborn, newly adopted, or newly placed foster child; and 11 percent used it to care for an ill child. In contrast, more than fifty percent of leaves were taken because of an employee's own serious illness.

Unfortunately - and very surprisingly and disappointingly- the official data does show the length of parenting leaves by gender. Thus, it is difficult to draw firm conclusions about gender-based leave-taking patterns post-FMLA. But some inferences, at least, can be made.

According to the survey, parenting leaves by both sexes tend to be relatively short--more than half of them last fewer than 10 days. This data suggests paternity leaves are probably not much longer than before. (Women often characterize their leave as maternity-disability, so the shorter, parenting leaves are in many cases taken by men.) There is no data to show that men are taking leave more often, or for longer periods of time, in order to parent their children.

What's Wrong with the FMLA

The FMLA was pushed as a complement to then-existing laws regarding childbirth and parental leave. More than thirty states had their own leave laws on the books when it was passed. And many employees had the protection of the Pregnancy Discrimination Act (PDA) as well. But that law did not (and does not) mandate that employers provide any leave at all--only that if they did, the leave policy had to be at least as generous for pregnant women as it was for comparably disabled employees.

The FMLA fills some gaps in existing law. It deprives most employers of the right to provide no leave for disability related to pregnancy or childbirth. And by doing so, it makes it less likely women will drop out of the work force, of necessity, when they have children.

It also mandates that employers provide parenting leave, not just leave associated with the disability of childbirth. But against a backdrop of a culture in which women are in fact primary caretakers--and pushed to continue in that role--these protections do little to induce a reallocation of parenting responsibilities toward men.

Rethinking The FMLA: Going Beyond Accommodating Motherhood

To promote equality, an amended FMLA would need to do more than simply accommodate motherhood, as the current FMLA does.

The current FMLA at least forces employers to accommodate motherhood--so women who become parents cannot be deprived of the opportunity to come back to work. An amended FMLA, to be effective in promoting gender equality, would also have to eliminate the incentives employers have to discriminate against female employees who are or are likely to become mothers.

This is where the current FMLA's vision of equality falls short. Providing fathers with the formal opportunity to take parenting leave--in a society in which social, cultural, and economic forces make it unlikely they will do so--does little to force equal parenthood.

Indeed, what is most disappointing about the current FMLA is that it seems that no one involved in its passage believed it would have that effect. At best, they hoped the FMLA would provide job security for women as they continued not only to give birth to children (a biological imperative), but also to be their primary caregivers.

The gender-neutrality of the FMLA--a feature that endured from the first bill proposed to the final one enacted--is, then, purely symbolic. A Congressional mandate for paternity leave may refute commonly held stereotypes about women's caretaking obligations. But a better law - a new, amended FMLA - would aim to change the behavior that makes the stereotypes true.

The FMLA's gender-neutral approach to mandatory leave is part of what makes it safe from Eleventh Amendment challenges - and that approach should not be changed. But other amendments to the statute should address the reality that real equality for working mothers remains elusive.

The state-sponsored discrimination against women--both in terms of sex-specific leave policies and the refusal to allow leave at all--was surely one obstacle to women's equality. But social norms and gender-based pay disparities in the workplace are obstacles as well.

The FMLA should be re-evaluated - and potentially amended - on the occasion of this anniversary. The goal should be to see whether there is a way in which it could make paternity leave--and paternal caretaking--more enticing.

Paid leave for both sexes would be a significant improvement, but not a panacea. It's time to go back to the drawing board.