Facebook Supports Paternity Leave

There has been a great deal of news and comment recently regarding the decision by Facebook’s Mark Zuckerberg to take two months of paternity leave upon the birth of their first child late last month, a daughter they named Max. In a recent tweet from Upworthy titled 5 Reasons Why Mark Zuckerberg’s Upcoming Parental Leave Matters for the Rest of Us by Doyin Richards, he identifies why he believes that to be the case:

  1. Being a Dad comes first
  2. Respect for child rearing starts at the top
  3. Facebook is setting the tone for other companies
  4. Zuckerberg is challenging what it means to be a working Dad
  5. Time is important-let’s cherish it

Zuckerberg recently announced that Facebook will provide 4 months of paid maternity and paternity leave for its employees. This is great news for working Moms and Dads at Facebook and other companies that may be motivated to do the same.

It is great news for women when men take paternity leave as it promotes real understanding that parenting is not just “lady business” but a priority for Moms and Dads.

Congratulations to Priscilla Chan and Mark Zuckerberg on the birth of Max as well as Facebook’s commitment to support both working Moms and Dads. Not every working Mom and Dad have the same opportunity to share the quality and quantity of time with a newborn, but every action of this nature and the press surrounding it raises more awareness on this important issue and helps all of us. Doyin Richards is correct–Mark Zuckerberg’s parental leave matters and helps all of us.

How We Think About Parental Leave?

I recently came across a great blog titled “The Trouble With Parental Leave” authored by Robin Hardman of Robin Hardman Communications. She describes a breakout session she recently attended at the annual WorkLife Congress event about paternity leave. She notes that the conversation soon expanded beyond paternity leave issues to parental leave in general. What is the purpose of paternity leave? What is the purpose of any kind of parental leave?

She briefly summarizes the history behind maternity leave when Congress finally agreed that pregnancy should be treated like any other kind of “medical disability” so that many women would be entitled to paid leave through company disability policies.

The blog highlights many of the ongoing challenges with how we manage parental leave in the U.S. and why reform is needed. The following comment by Ms. Hardman sums up the parental leave situation at present: “Since companies can now cover at least some of the cost of paid leave for biological mothers through disability insurance, and since men may pay a higher career cost than women when they take leave, and since adoption still often ranks as a somehow inferior way of acquiring a child, and since it doesn’t look like the federal government is going to step into legislate change anytime soon–well, it looks like we have a long way to go before parental leave in the U.S. is adequate and equitable.”

In 2015, while a necessary evil so as to allow paid maternity leave for many, it is simply ridiculous that pregnancy is considered a “medical disability.” We all deserve a better law that provides a right to parental leave so that we can make the best possible choices as parents about how to care for and bond with our children.

To Be or Not To Be FMLA — (WBAI Newsletter)

“To Be or Not To Be FMLA”

We are all familiar with the Family Medical Leave Act (“FMLA”), the federal law that allows eligible employees to take up to twelve weeks away from work, to handle certain family or medical needs. Generally, FMLA regulations apply to an employer if the employer is a private business that employs fifty or more employees in twenty or more weeks in the current or prior calendar year.

Read more of this article by Chloe Pedersen in the Women’s Bar Association Of Illinois Newsletter.

New Law Requires Mothers’ Rooms at O’Hare and Midway Airports

A new Illinois law recently signed by Governor Bruce Rauner will require large airports, including Midway and O’Hare, to have lactation rooms by 2017. Smaller Illinois airports will have to add private rooms when building new terminals or renovating existing ones. At least at Midway and O’Hare, moms will not have to wait until 2017 as new Mothers’ Rooms already have been opened.

A Mother’s Room for traveling moms to use for breastfeeding and pumping, equipped with comfortable seating, a sink, wash area and wall-mounted TV already opened at Midway Airport this month on Concourse C, next to the Yoga Room.

The ADA-compliant Mother’s Room at O’Hare International Airport opened this month as well on the mezzanine level of the Rotunda Area, in Terminal 3 near the Yoga Room and O’Hare’s urban garden. Terminals 1, 2 and 5 also are scheduled to get Mothers’ Rooms before the end of the year.

Congratulations to one of our own working moms–Emily Masalski at Rooney Rippie and Ratnaswamy LLP  and Chair of the ISBA Women and the Law Committee–for identifying this concern and working to have legislation introduced that resulted in the passage of this important, long overdue law!

Pregnancy Discrimination

At the beginning of this year, Illinois joined a growing majority of states by making pregnancy a protected class under state law.

The Illinois Pregnancy Accommodation Act was amended in early 2015 to include specific provisions regarding accommodations for pregnant workers, including the provision of a “temporary transfer to a less strenuous or hazardous position” and “reassignment to a vacant position.” See 775 ILCS 5/2102(J)(1). The Act also provides a rebuttable presumption that an accommodation will not impose an undue hardship if the employer provides or would be required to provide a similar accommodation to similarly situated employees. See 775 ILCS 5/2-102(J).

However, a recent Supreme Court decision interpreting the Pregnancy Discrimination Act (“PDA”), may limit the protection given to women under Federal law.

The law provides: (1) pregnancy bias is a form of discrimination based on sex; and (2) female workers who become pregnant must be treated the same as other workers who can perform the same kind of job. See 42 U.S.C. § 2000(e), et seq.

Peggy Young was a United Parcel Service (UPS) driver when she became pregnant and claimed, because of her pregnancy, she was unable to lift anything over 20 pounds. At the time, UPS’s policy provided disability accommodations to drivers who became temporarily disabled for a number of reasons, but not for limitations which were the result of pregnancy alone. Thus, pursuant to its established policy, UPS declined Young’s request for an accommodation.

Young sued UPS alleging violations of the federal PDA. She argued that if she had torn a muscle or broken a bone, for example, she would have been put on “light duty” under UPS’s policy. However, since her pregnancy was the sole cause of her weight-lifting restriction, UPS violated the PDA and discriminated against her when it wrongfully refused to accommodate her. In sum, the UPS policy violated the PDA by discriminating against pregnant women. Thus, the case presented the question of whether, and in what circumstances, an employer who provides work accommodations to non-pregnant employees with limitations must also provide work accommodations to pregnant employees who are “similar in their ability or inability to work.”

According to the PDA, “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes * * * as other persons not so affected but similar in their ability or inability to work.” 42 U.S.C. § 2000e(k). Young argued that pregnant workers should receive the same accommodation when they cannot perform their normal jobs as any other worker would receive for any other condition that similarly impairs their ability to work. The federal government, who submitted the supporting amicus brief, agreed. Young argued, this approach, was consistent with the statute, which prohibits different treatment between pregnant and otherwise disabled workers. Under Young’s proposed approach, an employer would treat a pregnant employee, who could not stand for more than four hours, the same as a male employee with back issues, which caused the same restriction.

UPS, however, argued that this portion of the PDA only functioned to define sex bias to include pregnancy discrimination, and did not provide a legal basis that would require employers for offer additional benefits to pregnant woman.

The Court rejected both parties’ arguments; it found that Young’s interpretation was too broad, and UPS’s reading of the statute was too narrow.  The Court went on to clarify the scope of the statute. The PDA outlines the elements a female worker must show in claims  of pregnancy bias:

  1. That she is within the protected group (i.e., pregnant);
  2. That she requested accommodation(s) when she was unable to perform her job normally;
  3. That her employer refused to accommodate her; and
  4. That her employer provided an accommodation to other workers at her job who had a similar temporary working restriction.

If this initial showing is met, then under the Court’s clarified framework, the employer must show that its workplace policy was not biased against pregnant workers, but rather had a neutral business rationale. Satisfying this burden, an employee would then need to show that the employer’s purported rationale is, in fact, merely a pretext for bias. The employee may also demonstrate that the workplace policy puts a “significant burden” on female workers, and that the policy is “not sufficiently strong” to justify that burden. In this sense, the Court provided that the inquiry is an evaluation of the negative impact on female workers, rather than attempting to determine whether the policy is intentionally biased against pregnant women.

With these different and potentially conflicting standards, it’s important for employers (and employees) to be aware of these developments and continue to evaluate their obligations and rights under the law.

U.S. Needs Paid Maternity Leave

According to the PBS News Hour, the United States and Papua New Guinea are the only countries in the world that do not provide any paid time off for new mothers. Under the Family Medical Leave Act of 1993, new moms who work full time at firms with 50 or more employees are guaranteed 12 unpaid weeks of leave. Unfortunately, even this unpaid leave fails to cover fully 40 percent of American workers.

Consider how the U.S. treats new moms compared to other countries—the Netherlands provides 16 weeks of paid family leave, 52 weeks in Denmark after the birth of a baby, almost 70 weeks in Sweden and 12 weeks in Burundi. In the U.S., only 1 in 8 receive any paid family leave and those benefits come from private employers.

As an example, Johnson & Johnson announced earlier this year that new parents—maternal, paternal or adoptive—will now be eligible for seven additional weeks of paid leave during the first year of the child’s birth or adoption. This means that moms who give birth can take up to 17 paid weeks off and new dads receive 9 weeks. Moreover, new parents do not have to take the leave consecutively, allowing for greater flexibility during the important first year.

When Google extended paid maternity leave to 18 weeks, the rate at which new moms left the company fell by 50 percent.

Kudos to companies such as Johnson & Johnson and Google and many others for doing the right thing to support working parents. Working parents should not have to rely upon their employers to do the right thing as paid family leave should be legally required as it is in other countries throughout the world.