The Family and Medical Leave Act Advances Reproductive Justice

This article was published by The Center for American Progress.  

Elizabeth Chen is a Policy Analyst for the Women’s Health and Rights Program at the Center for American Progress and a Law Students for Reproductive Justice law fellow.

The Family and Medical Leave Act was signed into law 20 years ago today and was a great first step toward supporting workers and workplace fairness. The law ensures that employees can receive 12 weeks of unpaid job-protected leave to recover from a serious medical condition, provide care for a seriously ill family member, or care for a new child. Workplace leave, however, is not just an employment issue—it is also a matter of reproductive justice.

Reproductive justice stands at the intersection of traditional reproductive rights concerns, such as the decision whether to become a parent, and social justice issues. In addition, it centers on the reproductive health needs of the most marginalized populations, including women of color, low-income individuals, and individuals with disabilities, among others. In our 2006 report,“More than a Choice: A Progressive Vision for Reproductive Health and Rights,” we set forth four cornerstones essential to a progressive reproductive health, rights, and justice agenda, including policies that support the ability to become a parent and to parent with dignity—meaning being able to financially, emotionally, and physically support a child’s basic needs—and the ability to have healthy and safe families and relationships.

Workplace leave is crucial for all people, but especially for low-income individuals seeking to become parents and have healthy families—a right to which we are all entitled. Historically, though, some parenting has been privileged at the expense of others, and not everyone has been able to exercise this right.

Laws and social movements, for example, encouraged white women to stay out of the workforce in order to provide full-time care for their children, while driving women of color—especially black women—into paid work, thus preventing them from being full-time stay-at-home caregivers to their children. Harvard Law Dean Martha Minow has documented how welfare policy for mothers in the late 19th century provided income support for them to stay at home. When access to such income support became increasingly available to black women during the civil rights movement of the 1960s, however, the rhetoric surrounding welfare became more negative. University of Pennsylvania Law Professor Dorothy Roberts explainsthat, “The central message of welfare reform is that recipient mothers are deviant for staying home and would better serve their children by finding jobs.”

To this day, programs such as Temporary Assistance for Needy Families, which provides income support for families living in poverty, require work in the formal economy—or training for it—driving low-income parents into the workforce. Unpaid work within the home, including caring for families, does not satisfy the program’s requirements. This is not merely a historical remnant of former cultural biases—as recently as the 2012 presidential election, former Massachusetts Gov. Mitt Romney (R) claimed that he would require mothers receiving income support to either work outside the home or lose the support.

Furthermore, parenting itself is highly gendered in law and society, making it difficult for men to assume caregiving roles. Sex-role stereotypes, often historically codified in law, cast white women as caregivers and white men as breadwinners. Masculinity throughout the 20th century was defined by this stereotypical family wage system, even though working-class men and men of color were largely excluded from that system.

The gendered breadwinner-caregiver model has become increasingly destabilized over time. In fact, as we noted in our issue brief, “The New Breadwinners: 2010 Update,” in 2010 women were either primary breadwinners or co-breadwinners in nearly two-thirds of American families with children. Yet gendered caregiver bias persists and can result in employment discriminationagainst men when they request leave to care for their children.

Given the devaluation of caregiving, while also recognizing that most parents—especially low-income ones—must work, how can we support working parents as both workers and caregivers? The Family and Medical Leave Act was a step in the right direction: By protecting the jobs of workers caring for a new child, the law reflects policymakers’ recognition that caretaking after birth or adoption of a child is essential, and that workers should have the flexibility to take time off to do so.

The law also furthers equality and disrupts sex-role stereotypes by applying equally to both men and women. Under the law, men and women alike have the opportunity to take time off to care for family members—and the percentage of men taking leave for caregiving purposes hasincreased steadily over time. Even former Supreme Court Justice William Rehnquist, initially anopponent of women’s equality under the law, acknowledged the crucial work that the law does to “attack the formerly state-sanctioned stereotype that only women are responsible for family caregiving.”

Workplace policies such as the Family and Medical Leave Act give workers the opportunity to care for their families with dignity by permitting them to continue to work and also to spend crucial time bonding with their new children. Under the law, workers can also take time off to care for a seriously ill family member, including a child, expanding the ability for parents to meet the needs of their children.

Unfortunately, the Family and Medical Leave Act doesn’t go far enough. As we noted in our 2009 issue brief, “Labor Pains: Improving Employment and Income Security for Pregnant Women and New Mothers,” the law only covers a subset of workers.  According to new statistics released by the Department of Labor, more than 60 percent of workers do not qualify for the protections of the law because they or their employers do not meet one or more requirements for leave. Moreover, because the leave is unpaid, almost 50 percent of workers report not being financially able to take the leave. Guaranteed leave does not enhance the ability for individuals to parent with dignity if they do not qualify for it or cannot afford to take it.

Workplace leave is crucial for people with children to be able to parent with dignity and have healthy families. The ability to care for children when they are born or adopted, or when they fall ill is essential to a holistic and comprehensive vision of reproductive health, rights, and justice. The Family and Medical Leave Act was a good beginning, but we must continue to fight until all Americans have the ability to care for their children without jeopardizing their job or their income.