How FMLA Improved Gender Equality in the Workplace
By Bill Bush, Legal Aid Society
It’s been 99 years since women in the U.S. first gained the right to vote — a milestone commemorated each year with Women’s Equality Day on Aug. 26.
Yet, it’s worth taking a moment to consider the progress that has been made for gender equality in the workplace — and, in particular, a crucial piece of legislation from 1993 that has continued to positively affect employees of both genders.
The Family and Medical Leave Act (FMLA) has been on the books for a short enough span of time that some in the workplace likely remember a time before it. Today, more than 80 percent of employees in the United States are covered by FMLA, and it has been used more than 100 million times since its enactment.
FMLA provides 12 weeks of unpaid, job-protected leave per year for employees facing a serious health condition or caring for a family member with a serious health condition. Crucially, the list of qualifying health conditions includes the birth and care of a newborn child, or the adoption or foster care placement of a child. Since 1993, FMLA has been expanded to cover additional situations, such as a call to military service or caring for a service member with a serious illness.
It’s hard to overstate the importance of this act for women in the workplace. Although women have traditionally filled the caregiver role in families, before the passage of FMLA, they faced the real possibility of losing their jobs just for having children — or for missing work because of unavoidable situations like taking care of a sick child.
Today, when an employee taking leave through FMLA is able to return to her job, it’s still waiting there for her. In addition, the employee’s health insurance stays in effect during her leave, with the employer continuing to cover its part, and the employee paying out of pocket what’s normally deducted from her paycheck.
One important aspect of FMLA that is sometimes overlooked is how progressive it was in its aims. The wording of the act makes clear that Congress really intended to overcome stereotypes about women’s caregiving roles in society. FMLA made all the provisions for protecting caregivers non-gender-specific, so that fathers would have the same rights as mothers to take parental leave — allowing both genders to take on equal parenting roles.
In the years since FMLA was passed, there have been occasional growing pains as employers have adjusted to the new requirements. I worked on one case against OshKosh B’gosh, which fired a female employee from one of its factories in Tennessee for being off work too much, according to the company. The “too much” was a few days the woman took off because her children had the flu. The employer knew about FMLA but didn’t think that the employee’s situation qualified as a serious health condition. However, because the mother had no choice but to take time off work to care for her children, she met the regulatory conditions, which meant that she shouldn’t have been fired.
Though incidents of FMLA noncompliance today are less frequent and less blatant than in the past, women in the workplace continue to face challenges in exercising their rights. Employers are more knowledgeable in general, and, in the situations we encounter, they may not often be purposefully trying to take away an employee’s FMLA rights. But when the requirements aren’t followed, employees sometimes still lose their jobs when they shouldn’t. When that happens, firms like Legal Aid Society can help.
If you believe that your FMLA or other employment rights have been violated by your employer, call us at Legal Aid Society at 800-238-1443. Our employment practice group serves low-income residents of 48 counties across Middle Tennessee.
About Bill Bush
Bill Bush is a Legal Aid Society attorney in the Cookeville office and also serves as the Lead Attorney of the Employment Practice Group. He is a graduate of Princeton University and Case Western Reserve University Law School, where he was an editor of the Law and Housing Journal and of the Law Review. He is an Editor in Chief of The Family and Medical Leave Act, a treatise jointly published by the ABA Section of Labor and Employment Law and Bloomberg BNA.
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