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Featured Guest Blogger February 16th, 2009

Adria B. Martinelli has practiced employment law in Delaware since joining Young Conaway Stargatt & Taylor in 2001 as a senior associate in the Employment Law Section. She is also a regular speaker on employment-related topics, and trains individual employers in various areas of employment law, including sexual harassment, performance evaluations and documentation, and exceptions to at-will employment. Adria serves as an editor of the Delaware Employment Law Letter and writes for the Delaware Employment Law Blog. Please note that the views of our guest bloggers do not necessarily reflect the views of the Sloan Work and Family Research Network.

Legal protection in the work-life balance area is limited. Unlike most other industrialized nations, pregnant workers in the United States are afforded no special protections; employers are required only to treat pregnant workers no worse than other temporarily disabled employees. Pregnancy is not (absent unusual complicating conditions) a disability which must be “accommodated.” The United States provides little in the way of benefits to pregnant employees to make it easier for them to have a baby and then go through a bonding period.

In order to state a pregnancy discrimination claim, an employee has to either provide direct evidence of discrimination on the basis of her pregnancy (“You’re fired because the business can’t handle any more pregnant employees”), or point to similarly-situated, temporarily disabled workers who were treated better. Such evidence often proves elusive. Rarely in my practice have I seen claimants who can produce the “male with a back injury” who was treated differently, as provided in a hypothetical example in the Pregnancy Discrimination Act regulations.

FMLA’s coverage is limited, protecting only employers with 50 or more employees, and only employees who have worked 12 months or more with that employer. And of course, even if you’re an employee covered by the FMLA, the law does not require that the employer pay for any part of your 12-week leave, only that you may take the leave (unpaid), and can return to your job. Many employees cannot afford to take unpaid leave, rendering this benefit illusory.

Work-life accommodations, therefore, including pregnancy, are left largely to the employer. Paying for a portion of FMLA leave, allowing additional time before a new mother has to return to work, or allowing flexible schedules are all examples of accommodations left to the employer’s discretion. In good economic times, such benefits were often viewed as necessary to compete in the marketplace to attract and retain the best employees.  It has been widely covered in the press that Gen Y (males and females alike) places a greater value on work-life balance than their predecessors, and this has been another factor in encouraging employers to exercise their “benevolence” in these areas.

However, all this may change with the new economy, where people are happy just to have a job, and employers don’t feel compelled to offer any special perks to attract or keep them.  I am reminded of a boss I once had who, when asked how he motivates employees, responded “I tell them if they don’t do their job they’ll get fired.”  In the legal industry, it’s already being reported that associates are working more billable hours to earn their keep and keeping mum about work-life balance.

John Phillips of The Word in Employment Law recently wrote a provocative blog on the news that Candace Parker, “the face of the WNBA,” announced her pregnancy, apparently upsetting fans and teammates and prompting some to call her “selfish.”  As noted by John,

In the 21st century, calling female employees who have children irresponsible, selfish, or not good for business is a bit disconcerting, not to mention illegal. We often talk and hear talk about family values. That means different things to different people, but whatever it means usually involves children.

There are encouraging indications about the new administration’s focus on work-life issues: President Obama’s campaign platform included a specific “Plan to Support Working Families and Women,”and just a few weeks ago Michelle Obama appointed Jocelyn Frye, general counsel of the National Partnership for Woman and Families, as her Policy Director. Many advocacy groups have high hopes that the protections of FMLA and/or Pregnancy Discrimination Act are eventually broadened. Let’s hope the notion that pregnancy or work-family balance is “bad for business” does not become more widespread in this economic downturn, not only slowing down progress in this area, but sending us backwards.

• Maternity/Paternity Leave , Organizations , Workplace