Social Welfare Public Policy

Social Welfare Public Policy



Social Welfare Public Policy

Family and Medical Leave Act

Introduction

This paper is an attempt to trace the legislative development of the Family and Medical Leave Act of 1993. First, the author identifies the problem that initially required the attention of the government policy-makers, then goes on to describe the agenda-setting process that the issue underwent, at the same time identifying the major players involved in the process of policy formulation.

The Issue

The problem involving the family and medical leave first became a public concern during the 1940s when the share of women in the national labor force reached a substantial level of about 28%. Considering the traditional role of women not only in childbearing and childrearing but also in caring for sick family members, the maternity leave problem for women workers began to let itself felt by then. Initially, the issue concerned two underlying points: first, whether pregnant women should be permitted to continue working and, second, whether they should be allowed to return to work after giving birth. (Smith & Bachu, 1998.)

The Reactions

By 1942 the Women's Bureau of the United States Department of Labor already proposed a 14-week leave for pregnant working women: six weeks before and eight weeks after childbearing. (Lovell, 2000) However, nothing much came out of this initiative from the Women's Bureau. Even the Civil Rights Act of 1964, which prohibited discrimination based on sex, had not been specific about pregnant women. Meanwhile, state initiative in a related field emerged from 1975 to 1978 when 23 states enacted laws directing that maternity leave be covered in health insurance packages. (Dube & Kaplan, 2002) On December 7, 1976, however, the United States Supreme Court came out with a controversial ruling relative to the Civil Rights Act of 1964, in the General Electric vs. Gilbert case. It said that pregnancy was not a sex-based discrimination issue, therefore, a company is allowed to simply omit it from its disability policy and still not violate the provisions of the Civil Rights Act of 1964 which prohibited discrimination based on sex, among others. The decision resulted to a public outcry and quickly prompted workers' and women's groups to demand Congress to come out with a clearer explanation of the law. Finally, in 1978, Congress reacted by amending the Civil Rights Act of 1964 and the Pregnancy Discrimination Act (PDA) was signed into law on October 31, 1978. The PDA provided, among others, the treatment of pregnancy as a disability and therefore warranted the same benefits given to other employee disabilities. It also guaranteed security against termination, job denial, or promotion discrimination for pregnant women. (Rios, 1998)

However, the PDA, in turn, proved inadequate. In 1984, a federal court in California ruled maternity leave to be sexually discriminating - this time, against male employees. This decision again started the hunt for just the right law to address the issue. Advocates for a family medical leave which would apply to both male and female employees ...