Maternity leave policies in the United States lag far behind the rest of the world. According to a recent Washington Post article, one hundred and seventy-seven nations require that all women, and in some cases men, receive both income and job-protected time off after the birth of a child.  In contrast, the United States’ Family & Medical Leave Act (FMLA) only requires that employers provide “eligible” employees with 12 work weeks of unpaid leave for the birth of a child.  A person is an “eligible” employee if they have been employed by an employer with 50 or more employees, have worked for the same employer for at least 12 months and have completed at least 1250 hours in the 12-month period preceding the commencement of FMLA leave.  Many women aren’t covered by the FMLA; others cannot afford to take unpaid time off.  For some women, this means returning to work just days after giving birth or, worse yet, not having a job to return to after giving birth.

Several states, including California, Connecticut, Massachusetts, and Montana, have sought to alleviate some of the barriers facing women workers by enacting laws that require employers to provide pregnancy, childbirth or maternity leaves, and some employers provide leave beyond what the law requires. A recent decision from the Ohio Supreme Court, however, reveals the pervasive shortcomings of our current legal and employment environments. In June 2010, the Ohio Supreme Court held that minimum-length-of-service requirements for leave eligibility may be applied uniformly to both pregnant and non-pregnant employees – even if that application results in a pregnant employee’s termination for leave related to pregnancy and childbirth.

The employee in the case, Tiffany McFee, was employed by Pataskala Oaks Care Center in Ohio as a licensed practical nurse. Pataskala Oaks’s company policy, similar to the FMLA, stated that all employees were required to complete one year of employment before they would be eligible for leave. Eight months into her employment, McFee provided a doctor’s note to Pataskala Oaks indicating that she had a pregnancy-related illness that rendered her unable to work until six weeks after she gave birth. Pataskala Oaks terminated McFee’s employment three days after she gave birth, citing McFee’s ineligibility for leave under company policy.

Ohio’s pregnancy discrimination law expressly makes it unlawful for an employer to terminate an employee on the basis of pregnancy and pregnancy-related illness. Pataskala Oaks maintained that it did not fire McFee because of a pregnancy-related illness, but because she missed work due to illness.  The OCRC, the state agency which enforces Ohio’s antidiscrimination laws, determined that Pataskala Oaks’ policy constituted discrimination because it failed to provide a reasonable amount of leave to McFee.  The Ohio Supreme Court, however, disagreed. The Court held that the law “does not require preferential treatment for pregnant employees.”  Rather, it only “mandates that employers treat pregnant employees the same as non-pregnant employees who are similarly situated with respect to their ability to work.” 

The OCRC urged the Court to read the “treated the same” clause in the law as separate from the provision that prohibits termination based on pregnancy. They argued that the latter requires a reasonable amount of leave for child birth and pregnancy related illness or, at the very least, requires an employer to engage in an accommodation analysis to determine if pregnancy-related leave can reasonably be provided.  In this vein, Justice Pfeifer in his dissent asked: “What did the Ohio General Assembly mean when it protected women from discharge based upon pregnancy related illness? Does not the word illness connote missed work time?” 

Stripping the provision prohibiting termination on the basis of pregnancy of any real meaning, the Ohio Supreme Court refused to read the provisions separately. Instead, the Court found that the Pataskala’s policy was lawful because it purportedly treated all employees “the same.” It is important to note that this decision came just one year after the Court concluded, under a similar analysis, that an employer can lawfully terminate an employee for taking breaks to pump breast milk.

This “sameness” paradigm, which has guided sex and pregnancy discrimination cases for years, has created a flawed analogy between pregnancy and other conditions. What once served as useful legal strategy to advance women’s equality, has led to rigid legal interpretations that fail to achieve the full intent of pregnancy discrimination laws.  The notion that a woman presented with a career opportunity early in her pregnancy may have to decline it because she could be fired for taking leave to give birth only serves to perpetuate gender gaps in wages and career progression.  Similarly, the suggestion that women who want to advance their careers should simply forgo motherhood ignores fundamental and basic rights. To prevent gender discrimination and provide equal opportunity for women, we must have laws and policies that ensure that pregnant women are not disadvantaged or penalized for simply becoming mothers. 

Furthermore, research shows that pregnancy and maternity leave results in better outcomes for communities and that the absence of reasonable leave policies can have a detrimental impact on families, including a loss of health insurance at a critical time.  Research also indicates that employers who provide leave stand to benefit through a more stable and productive workforce.  What is “reasonable” may depend on a company’s size and service.  However, an employer that provides a reasonable amount of pregnancy-related leave, based on its size and service, may expend fewer resources by keeping a position empty or hiring a temporary worker than an employer who has to hire and train a permanent replacement.  The “ironic postscript” in the McFee case, as Justice Pfeifer notes, is that Pataskala Oaks called McFee three weeks after firing her and offered her a job.  Thus, it appears that “providing McFee with unpaid leave to deal with the medical effects of her pregnancy was not such a burden after all.” 

Lisa Kathumbi, a licensed attorney in the state of Ohio, has experience representing companies in employment law matters.  Lisa has also worked for women’s advocacy organizations in Chicago, Washington, D.C. and Botswana. The opinions expressed here are solely those of the author of this article.

More about where FMLA stands in 2010.