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By Ariela Migdal, Senior Staff Attorney, ACLU’s Women Rights Project

More than 30 years after Congress passed the Pregnancy Discrimination Act, employers still engage in two kinds of pregnancy-related sex discrimination. First, they discriminate outright against workers who get pregnant — firing them or refusing to promote them when they need to take time off for pregnancy-related care and childbirth, and forcing them off the job by refusing to accommodate some women’s temporary restrictions on heavy lifting or other physical job duties. Second, employers discriminate against women workers more generally, by firing or refusing to hire or promote women based on stereotypical assumptions that women in a certain age bracket will — or shouldget pregnant, have children, and cost the employer money by leaving the workplace or shifting to a less work-intensive “mommy track.”

The Family and Medical Leave Act, enacted in 1993, was designed to address both kinds of discrimination. Its “self-care” provision allows eligible employees to take up to twelve weeks a year of unpaid leave to recover from their own serious health conditions, including pregnancy and childbirth, without fear of losing their jobs. (The leave can also be used to care for a new baby or a family member who is ill). The provision is gender-neutral, though, and it covers all serious medical conditions, not just pregnancy and childbirth, to avoid having the perverse effect of reinforcing employers’ discriminatory assumptions that only women will take leave.

Yesterday, the ACLU and the ACLU of Maryland joined a brief in the Supreme Court case Coleman v. Maryland Court of Appeals, urging the Court to uphold the FMLA’s self-care provision as a valid exercise of Congress’ powers to enforce the Equal Protection guarantees of the Fourteenth Amendment. Daniel Coleman was a court employee who alleged that he was fired for requesting medical leave. The brief we joined argues that the FMLA’s gender-neutral self-care provision was enacted in part to ensure that employers would not continue to discriminate against women based on the assumption that only women will need to take (pregnancy-related) self-care leave from their jobs. By enabling men and women to take leave to recover from temporary medical conditions, the law ensures that stereotypes about women needing to take time off to give birth would not serve as the basis for discrimination in the workplace.

Barriers to women’s full participation in the workforce still stand today. Just yesterday, the National Science Foundation and the White House announced a new initiative aimed at improving the proportion of women scientists who become full professors. They cited troubling statistics showing that, while women now earn about 41 percent of doctoral degrees in science and engineering, they hold only 28 percent of full-time tenured or tenure-track positions in those fields, and women with children are making slower gains than those without.

In light of indications that women still face a “maternal wall,” we will continue our efforts to tear down that wall and support laws and policies that level the playing field. The FMLA is a critical law that levels the playing field by allowing men and women to take time off for medical conditions (including, but not limited to, pregnancy and childbirth), without reinforcing the stereotype that only women will need to take time off.

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