Maternity Leave Under the FMLA: An Analysis of the Litigation Experience
University of Missouri School of Law
Louisiana State University, Baton Rouge - E.J. Ourso College of Business Administration
Washington University Journal of Law and Policy, Vol. 15, p. 143, 2004
In the U.S., the Family and Medical Leave Act of 1993, ("FMLA") serves as the most visible, and to date, most significant legislative effort in addressing work/family conflicts facing today's workers. While the FMLA is framed in sex-neutral language, conventional wisdom has been that it was enacted to protect women. If conventional wisdom is correct, and the FMLA's motivation is in large measure to protect women, then it is appropriate to evaluate how well the FMLA alleviates problems faced by women due to conflicting job and family responsibilities. The problems faced by women regarding leaves taken due to the birth or adoption of a child, seems particularly well-suited for this purpose. We examine the litigation experience regarding disputes involving leaves taken due to the birth or adoption of a child. By analyzing outcomes of FMLA disputes that are litigated, we obtain a more complete picture of how concerns related to family/work tensions are being resolved in practice. Together with information on how employers have changed leave policies after the enactment of the FMLA, and how employees' behavior has been altered following the enactment of the act, we can provide a more complete picture of the overall impact of the legislation.
We begin with a brief description of trends in female labor force participation and the presence of dual-earner households in the U.S. labor market, conditions which likely led to the need for family and medical leave legislation. We then review various practices that business and government organizations have implemented to balance work and family conflicts, as well as related features of the FMLA, particularly those pertaining to childbirth and adoption. With this background in place, we introduce a framework for examining FMLA litigation. We then review federal court cases involving requests for family leave due to the birth or adoption of a child under the FMLA to determine the nature of conflicts occurring under the legislation, and the resolution of those conflicts by the courts.
Keywords: Labor Law, Employment Law
JEL Classification: K31
Date posted: March 15, 2005