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From civil rights to social policy: the political development of family and medical leave policy

Published online by Cambridge University Press:  21 April 2021

Kumar Ramanathan*
Affiliation:
Department of Political Science, Northwestern University, Evanston, Illinois, USA
*
Corresponding author: Kumar Ramanathan, Email: kumar.ramanathan@u.northwestern.edu

Abstract

Family and medical leave policy in the United States is often noted for its lack of wage compensation, but is also distinctive in its gender neutrality and its broad coverage of several types of leave (combining pregnancy leave with medical, parental, and caregiving leave). This article argues that the distinctive design of leave policy in the United States is explained by its origins in contestation over the civil rights policy regime that emerged in the 1960s. In the early 1970s, women's movement advocates creatively and strategically formulated demands for maternity leave provision that fit an interpretation of this new policy regime's antidiscrimination logic. Because of this decision to advance an antidiscrimination claim, advocates became committed to pursuing a leave guarantee on gender-neutral grounds, which in turn enabled the broad-coverage leave design. This case study suggests that scholars of social policy and American political development should pay greater attention to the impact of civil rights on social policy. This article also contributes to the study of policy development by providing an example of how political actors cross boundaries between policy domains during the policy making process and by presenting a reconceptualization of “policy regimes.”

Type
Research Article
Copyright
Copyright © The Author(s), 2021. Published by Cambridge University Press

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References

1 Women's Legal Defense Fund, “Appendix B: State Laws and Regulations Guaranteeing Employees Their Jobs after Family and Medical Leaves,” in Parental Leave and Child Care: Setting a Research and Policy Agenda, ed. Hyde, Janet Shibley and Essex, Marilyn J. (Philadelphia, PA: Temple University Press, 1991), 468–89Google Scholar; National Partnership for Women & Families, Expecting Better: A State-by-State Analysis of Laws That Help Expecting and New Parents, 4th ed. (Washington, DC: National Partnership for Women & Families, August 2016)Google Scholar.

2 A Better Balance, “Overview of Paid Family & Medical Leave Laws in the United States,” last modified February 10, 2021, https://www.abetterbalance.org/resources/paid-family-leave-laws-chart/.

3 The United States remains one of only two countries to not guarantee paid maternity leave. See Addati, Laura, Gilchrist, Katherine, and Cassirer, Naomi, Maternity and Paternity at Work: Law and Practice across the World (Geneva, Switzerland: International Labour Organization, 2014), 8Google Scholar.

4 Addati et al., Maternity and Paternity at Work.

5 A. H. Gauthier, Comparative Family Policy Database, Version 3 [computer file] (Netherlands Interdisciplinary Demographic Institute and Max Planck Institute for Demographic Research, 2011), www.demogr.mpg.de.

6 Addati et al., Maternity and Paternity at Work, figs. 3.2 and 3.3. 67 percent did so by 2013, although only 14 percent guaranteed more than sixteen days of paternity leave. Notably, 92 percent of the developed economies with paternity leave policies include some wage replacement.

7 The United States was middle of the pack in guaranteeing leave to care for children: Gauthier's data on OECD countries show that only 4 percent had childcare leave laws in 1964, rising to 72 percent by 1992. See Gauthier, Comparative Family Policy Database. In providing leave to care for ill family members, the United States was an early innovator. The earliest such policies were enacted in Sweden in 1989 and Japan in 1995; see Lechner, Viola M. and Neal, Margaret B., eds., Work and Caring for the Elderly: International Perspectives (Minden, Germany: Brunner/Mazel, 1999)Google Scholar. By 2010, two-thirds of OECD countries offered such leave, but policy design varied significantly. For example, Japan offered three months of leave with 40 percent wage replacement; Germany offered six months of unpaid leave; and the UK allowed for two days of “emergency” caregiving leave. See Ana Llena-Nozal, Jérôme Mercier, Frits Tjadens, and Francesca Colombo, “Help Wanted? Providing and Paying for Long-Term Care” (Paris, France: OECD, May 18, 2011), ch. 4.

8 Together, these states and territories make up nearly 30 percent of the nation's population; see A Better Balance, Overview of Paid Family & Medical Leave Laws.

9 This has led to a striking outcome in cross-national comparisons: U.S. states with paid leave programs still lag other OECD countries in the generosity of parental and medical leave benefits, but they match or exceed them in the generosity of leave benefits to care for ill family members. This is because the U.S. state programs offer a single pool of paid leave that can be taken for maternity, paternity, medical, or caregiving purposes. This pool of benefits is weaker than most OECD countries’ programs for maternity or medical leave, but it is middle of the pack vis-à-vis leave to care for ill family members. See Addati et al., Maternity and Paternity at Work; Llena-Nozal et al., “Help Wanted?” ch. 4.

10 National Partnership for Women & Families, Fact Sheet: The Family and Medical Insurance Leave (FAMILY) Act (Washington, DC: National Partnership for Women & Families, September 2017).

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15 See, for example, MacLean, Nancy, Freedom Is Not Enough: The Opening of the American Workplace (Cambridge, MA: Harvard University Press, 2008)CrossRefGoogle ScholarPubMed; Cobble, Dorothy Sue, The Other Women's Movement: Workplace Justice and Social Rights in Modern America (Princeton, NJ: Princeton University Press, 2005), chaps. 6–7Google Scholar.

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17 See, for example, Quadagno, Jill S., The Color of Welfare: How Racism Undermined the War on Poverty (New York: Oxford University Press, 1994)Google Scholar; Slessarev, Helene, “Racial Tensions and Institutional Support: Social Programs during a Period of Retrenchment,” in The Politics of Social Policy in the United States, ed. Weir, Margaret, Orloff, Ann Shola, and Skocpol, Theda (Princeton, NJ: Princeton University Press, 1988), 357–80Google Scholar; Gilens, Martin, Why Americans Hate Welfare: Race, Media, and the Politics of Antipoverty Policy (Chicago: University of Chicago Press, 2000)Google Scholar. For the relationship between racism and social policy in the United States more broadly, see Manza, Jeff, “Race and the Underdevelopment of the American Welfare State,” Theory and Society 29, no. 6 (2000): 819–32CrossRefGoogle Scholar; Schram, Sanford F., Soss, Joe, and Fording, Richard C., eds., Race and the Politics of Welfare Reform (Ann Arbor: University of Michigan Press, 2003)CrossRefGoogle Scholar.

18 Riley, Dylan, “The Historical Logic of Logics of History: Language and Labor in William H. Sewell Jr.,” Social Science History 32, no. 4 (November 20, 2008): 555–65Google Scholar.

19 For a review of theories of institutional stability and change in American political development scholarship, see Sheingate, Adam, “Institutional Dynamics and American Political Development,” Annual Review of Political Science 17, no. 1 (2014): 461–77CrossRefGoogle Scholar. For a review of historical-institutionalist theories of institutional change more broadly, see Thelen, Kathleen and Conran, James, “Institutional Change,” in The Oxford Handbook of Historical Institutionalism, ed. Fioretos, Orfeo, Falleti, Tulia G., and Sheingate, Adam (New York: Oxford University Press, 2016), 5170Google Scholar; Fioretos, Orfeo, Falleti, Tulia G., and Sheingate, Adam, “Historical Institutionalism in Political Science,” in The Oxford Handbook of Historical Institutionalism, ed. Fioretos, Orfeo, Falleti, Tulia G., and Sheingate, Adam (New York: Oxford University Press, 2016), 328Google Scholar; Mahoney, James and Thelen, Kathleen, eds., Advances in Comparative-Historical Analysis (New York: Cambridge University Press, 2015)CrossRefGoogle Scholar.

20 See Béland, Daniel and Schlager, Edella, “Varieties of Policy Feedback Research: Looking Backward, Moving Forward,” Policy Studies Journal 47, no. 2 (2019): 184–205CrossRefGoogle Scholar; Mettler, Suzanne and SoRelle, Mallory, “Policy Feedback Theory,” in Theories of the Policy Process, ed. Weible, Christopher M. and Sabatier, Paul A., 4th ed. (Boulder, CO: Westview Press, 2017), 103–34Google Scholar.

21 Berk, Gerald and Galvan, Dennis, “Processes of Creative Syncretism: Experiential Origins of Institutional Order and Change,” in Political Creativity: Reconfiguring Institutional Order and Change (Philadelphia: University of Pennsylvania Press, 2013)Google Scholar. See also Berk, Gerald and Galvan, Dennis, “How People Experience and Change Institutions: A Field Guide to Creative Syncretism,” Theory and Society 38, no. 6 (2009): 543CrossRefGoogle Scholar.

22 Rocco, Philip, Kelly, Andrew S., Béland, Daniel, and Kinane, Michael, “The New Politics of US Health Care Prices: Institutional Reconfiguration and the Emergence of All-Payer Claims Databases,” Journal of Health Politics, Policy and Law 42, no. 1 (2017): 14–15CrossRefGoogle ScholarPubMed.

23 Sheingate, Adam D., “Political Entrepreneurship, Institutional Change, and American Political Development,” Studies in American Political Development 17, no. 2 (2003): 192CrossRefGoogle Scholar.

24 As Carlson has argued, advocates’ strategic decisions to use law or public policy as a resource have both instrumental uses and constitutive effects on future goals and strategies. See Carlson, Kirsten Matoy, “Making Strategic Choices: How and Why Indian Groups Advocated for Federal Recognition from 1977 to 2012,” Law & Society Review 51, no. 4 (2017): 932CrossRefGoogle Scholar.

25 See the characterization of the policy feedback literature and examples of studies cited in Andrea Louise Campbell, “Policy Feedback,” in Oxford Bibliographies (Oxford, UK: Oxford University Press, 2018); Béland and Schlager, “Varieties of Policy Feedback Research”; Mettler and SoRelle, “Policy Feedback Theory.”

26 Marijn Faling, Robbert Biesbroek, Sylvia Karlsson-Vinkhuyzen, and Katrien Termeer, “Policy Entrepreneurship across Boundaries: A Systematic Literature Review,” Journal of Public Policy 39, no. 2 (2019): 393–422. Faling et al. find that few studies that analyze horizontal boundary-crossing focus on entrepreneurs’ strategic reframing of issues to make their policy goals palatable to policymakers. This theorization of issue framing as a policy entrepreneurship strategy bears resemblance to the study of framing in the study of law and social movements. For example, Pedriana emphasizes how the “strategic framing of law's constitutive symbols” can enable social movements to advance their “grievances, identity, and goals.” See Nicholas Pedriana, “From Protective to Equal Treatment: Legal Framing Processes and Transformation of the Women's Movement in the 1960s,” American Journal of Sociology 111, no. 6 (2006): 1718–61. More broadly, social movement scholars have argued that changes in political opportunity structures and framing processes are interrelated causes of movement outcomes. See Doug McAdam, John D. McCarthy, and Mayer N. Zald, eds., Comparative Perspectives on Social Movements: Political Opportunities, Mobilizing Structures, and Cultural Framings (New York: Cambridge University Press, 1996); Sidney Tarrow, Power in Movement: Social Movements, Collective Action and Politics (New York: Cambridge University Press, 1994), 160.

27 The term “regime” is used widely in international relations, urban politics, and other social sciences to describe governing arrangements of various kinds. Generally, social scientists who invoke the term use it to describe some pattern of governance that combines ideas, institutions, and interests. I similarly use the term to connote a pattern of governance in the realm of public policies. See Carter A. Wilson, “Policy Regimes and Policy Change,” Journal of Public Policy 20, no. 3 (2000): 255–57.

28 Martin Rein, Gøsta Esping-Andersen, and Lee Rainwater, Stagnation and Renewal in Social Policy: The Rise and Fall of Policy Regimes (Armonk, NY: M.E. Sharpe, 1987), 6–7.

30 Gøsta Esping-Andersen, The Three Worlds of Welfare Capitalism (Princeton, NJ: Princeton University Press, 1990), ch. 1; Edwin Amenta, “What We Know about the Development of Social Policy,” in Comparative Historical Analysis in the Social Sciences, ed. James Mahoney and Dietrich Rueschemeyer (New York: Cambridge University Press, 2003), 101.

31 Patrick Emmenegger, Jon Kvist, Paul Marx, and Klaus Petersen, “Three Worlds of Welfare Capitalism: The Making of a Classic,” Journal of European Social Policy 25, no. 1 (2015): 3–13.

32 For reviews of such critiques, see Ann Orloff, “Gender in the Welfare State,” Annual Review of Sociology 22 (1996): 51–78; O'Connor et al., States, Markets, Families, ch. 1; Ann Shola Orloff, “Gendering the Comparative Analysis of Welfare States: An Unfinished Agenda,” Sociological Theory 27, no. 3 (2009): 317–43; Diane Sainsbury, Gender and Welfare State Regimes (New York: Oxford University Press, 1999).

33 For reviews of such critiques, see Emmenegger et al., “Three Worlds of Welfare Capitalism,” 5–7; Ann Shola Orloff, “Social Provision and Regulation: Theories of States, Social Policies and Modernity,” in Remaking Modernity: Politics, History, and Sociology, ed. Julia Adams, Elisabeth Clemens, and Ann Shola Orloff (Durham, NC: Duke University Press, 2005), 190–224.

34 For reviews of such critiques, see Edwin Amenta, Chris Bonastia, and Neal Caren, “US Social Policy in Comparative and Historical Perspective: Concepts, Images, Arguments, and Research Strategies,” Annual Review of Sociology 27, no. 1 (2001): 213–34; Béland et al., “The Fragmented American Welfare State.” In their cross-national study of parental leave, Kamerman and Moss similarly call for “[qualification of] the generalisations that flow from studies of welfare regimes” and attention to a range of factors such as ideas, governing structures, and actors beyond business and labor in the policymaking process. Sheila Kamerman and Peter Moss, eds., The Politics of Parental Leave Policies: Children, Parenting, Gender and the Labour Market (Bristol, UK: Policy Press, 2009), 266–68.

35 This approach to conceptualizing and identifying policy regimes is similar to the one later advocated in Peter J. May and Ashley E. Jochim, “Policy Regime Perspectives: Policies, Politics, and Governing,” Policy Studies Journal 41, no. 3 (2013): 426–52.

36 Making a similar intervention, Jochim and May use the term “boundary-crossing policy regimes” to describe governing arrangements that span across multiple policy domains. Ashley E. Jochim and Peter J. May, “Beyond Subsystems: Policy Regimes and Governance,” Policy Studies Journal 38, no. 2 (2010): 303–27.

37 This view aligns with the growing “many hands of the state” framework in the social sciences, which emphasizes that states encompass multiple institutions and thus that state action may evince “multiple and potentially contradictory logics.” Kimberly Morgan and Ann Shola Orloff, “The Many Hands of the State,” in The Many Hands of the State: Theorizing Political Authority and Social Control, ed. Kimberly Morgan and Ann Shola Orloff (New York: Cambridge University Press, 2017), 1–32. This kind of interaction between logics can lead to “intercurrence,” the phenomenon where “politics is governed by multiple and overlapping sources of authority.” See Sheingate, “Political Entrepreneurship,” 464.

38 For an overview, see Daniel Béland, How Ideas and Institutions Shape the Politics of Public Policy, Elements in Public Policy (New York: Cambridge University Press, 2019); Daniel Béland, “Ideas and Institutions in Social Policy Research,” Social Policy & Administration 50, no. 6 (2016): 734–50.

39 The most relevant economic change during this time period was the steady increase in women's participation in the labor force. This trend was frequently cited during congressional hearings, and members of Congress sometimes pointed to it as a reason to take action. However, there is no clear evidence that labor force participation influenced the policy design. Indeed, if this was a primary factor, we should expect advocates and/or policymakers to pursue a gender-specific policy rather than a strictly gender-neutral one. Changes in the discourse on family and gender in national politics included the growing relevance of conservative “pro-family” discourse. These did sometimes inform advocates’ and policymakers’ strategies and frames, but when such ideational considerations conflicted with strategic considerations based on the civil rights policy regime, advocates were more committed to the latter. For example, during legislative debates in the 1980s, advocates resisted the argument from some members of Congress that a pregnancy-only leave bill could be framed in “pro-family” terms, insisting instead on a gender-neutral bill.

40 For arguments about the role of business power in U.S. social policy development, see Tracy Roof, “Interest Groups,” in Oxford Handbook of U.S. Social Policy, ed. Daniel Béland, Kimberly J. Morgan, and Christopher Howard (New York: Oxford University Press, 2014), sec. 5; Jacob S. Hacker and Paul Pierson, “Business Power and Social Policy: Employers and the Formation of the American Welfare State,” Politics & Society 30, no. 2 (2002): 277–325.

41 As the case study will show, business interests were the primary opponents of advocates in the judicial and legislative arenas. Pro-business interest groups such as the U.S. Chamber of Commerce and the National Association of Manufacturers consistently opposed any public policy requiring the provision of job-protected leave. During legislative debate on the FMLA, advocates and their allies in Congress made many concessions in the face of business opposition, but persisted in pursuing a gender-neutral policy design. They also added categories of leave during the legislative process, even though expanding the scope of the policy could further antagonize opponents.

42 James C. Garand and Pamela A. Monroe, “Family Leave Legislation in the American States: Toward a Model of State Policy Adoption,” Journal of Family and Economic Issues 16, no. 4 (1995): 341–63; Michelle Rose Marks, “Party Politics and Family Policy: The Case of the Family and Medical Leave Act,” Journal of Family Issues 18, no. 1 (1997): 55–70; Sonja Klueck Elison, “Policy Innovation in a Cold Climate: The Family and Medical Leave Act of 1993,” Journal of Family Issues 18, no. 1 (1997): 30–54; Anya Bernstein, “Inside or Outside? The Politics of Family and Medical Leave,” Policy Studies Journal 25, no. 1 (1997): 87–99; Anya Bernstein, The Moderation Dilemma: Legislative Coalitions and the Politics of Family and Medical Leave (Pittsburgh, PA: University of Pittsburgh Press, 2001); Steven K. Wisensale, Family Leave Policy: The Political Economy of Work and Family in America (Armonk, NY: M.E. Sharpe, 2001).

43 Lise Vogel, Mothers on the Job: Maternity Policy in the U.S. Workplace (New Brunswick, NJ: Rutgers University Press, 1993); Bernstein, The Moderation Dilemma; Wisensale, Family Leave Policy.

44 Wisensale and Bernstein's studies trace the legislative processes around the FMLA and similar state laws during the 1980s–90s, and place them in the context of litigation over the Pregnancy Discrimination Act. I build on their work by pursuing a more focused analysis of the gender-neutral and broad-coverage design features, and by connecting my analysis of this latter period to earlier stages of development. Vogel's study offers the closest analysis to my own, tracing maternity policy from the Progressive Era through the debate over the FMLA. Her focus is on the shift from a difference framework to an equality framework. She places this shift in the larger strategic context that advocates faced and makes a normative argument for why the dichotomy between these frameworks should be resisted. This article has a narrower scope, within which it builds on Vogel's study in four ways. First, it draws on more primary source evidence to show how advocates inside and outside the government interpreted antidiscrimination and mobilized to pursue maternity leave provision during the 1960s–70s. Second, it shows that the state pregnancy leave statutes and regulations that emerged in the 1970s, which would later be challenged under the Pregnancy Discrimination Act, were themselves the result of adaptation to the civil rights policy regime. Third, it more consistently traces how opponents responded to advocates’ claims. Finally, with the benefit of additional hindsight, it shows how the design of the FMLA has shaped post-1993 developments in leave policy.

45 Eileen Boris, “No Right to Layettes or Nursing Time: Maternity Leave and the Question of United States Exceptionalism,” in Workers Across the Americas: The Transnational Turn in Labor History, ed. Leon Fink (New York: Oxford University Press, 2011), 176.

46 For “near misses” during 1919–20, see Alexis N. Walker and Dagny Ahrend, “The Historical Origins of the United States’ Exceptionalism on Paid Family Leave” (working paper, St. Martin's University, Lacey, WA, 2020); Beatrix Hoffman, The Wages of Sickness: The Politics of Health Insurance in Progressive America (Chapel Hill: University of North Carolina Press, 2001). For examples of federal social insurance and health insurance proposals during the 1930s–40s that included maternity leave provisions, see Louis S. Reed, “Legislative Proposals for Compulsory Health Insurance,” Law and Contemporary Problems 6 (1939): 631; David Montgomery, “Labor and the Political Leadership of New Deal America,” International Review of Social History 39, no. 3 (1994): 349; Leo J. Linder and Morris A. Wainger, “The Wagner-Murray-Dingell Social Security Bill of 1945—A Social Security Charter for Peacetime America,” Lawyers Guild Review 5, no. 4 (1945): 227.

47 Boris, “No Right to Layettes or Nursing Time,” 179–80. For more on the collective bargaining approach, see Women's Bureau, Maternity Protection of Employed Women (Washington, DC: U.S. Department of Labor, Women's Bureau, 1952), 27–28; Jennie Mohr, “Maternity-Leave Clauses in Union Contracts,” The Child: Monthly Bulletin 9, no. 11 (May 1945): 166–68; Women's Bureau, Union Provisions for Maternity Leave for Women Members (Washington, DC: U.S. Department of Labor, Women's Bureau, January 1945); Women's Bureau, Bibliography on Maternity Protection (Washington, DC: Women's Bureau, Department of Labor, 1951), 12–19.

48 Boris, “No Right to Layettes or Nursing Time,” 181–83; Alice Kessler-Harris, In Pursuit of Equity: Women, Men, and the Quest for Economic Citizenship in 20th Century America (New York: Oxford University Press, 2001), 210–11.

49 Only five states passed such programs, but at least twenty-one state legislatures considered proposals. See Arthur J. Altmeyer, “Temporary Disability Insurance Coordinated with State Unemployment Insurance Programs,” Social Security Bulletin 10 (1947): 3–8.

50 Thomas H. Bride, “Rhode Island Cash Sickness Compensation Program,” American Journal of Public Health and the Nation's Health 39, no. 8 (1949): 1011–15.

51 Boris, “No Right to Layettes or Nursing Time,” 183. The chairman of the Rhode Island Unemployment Compensation Board discouraged inclusion of pregnancy when advising other states considering TDI programs. See Bride, “Rhode Island Cash Sickness Compensation Program.”

52 The federal Railroad Unemployment Insurance Act passed in 1946 did include paid benefits during maternity leave for railroad workers, but no state TDI programs followed suit. Merrick, “California's Disability Insurance System: Current Thought on Insurance Law”; Women's Bureau, Maternity Benefit Provisions for Employed Women (Washington, DC: U.S. Department of Labor, Women's Bureau, 1960), 22–24.

53 Women's Bureau, Maternity Benefit Provisions for Employed Women, 32–38. For more on the mandatory pregnancy leave laws, see Women's Bureau, Bibliography on Maternity Protection, 10, 51–53. Notably, Puerto Rico's mandatory maternity leave law required job protection and 50 percent wage compensation from employers.

54 Nancy E. Dowd, “Maternity Leave: Taking Sex Differences into Account,” Fordham Law Review 54 (1986): n. 36.

55 Virginia Sapiro, “The Gender Basis of American Social Policy,” Political Science Quarterly 101, no. 2 (1986): 221–38; Theda Skocpol, Protecting Soldiers and Mothers: The Political Origins of Social Policy in the United States (Cambridge, MA: Harvard University Press, 1992); Julie L. Novkov, Constituting Workers, Protecting Women: Gender, Law and Labor in the Progressive Era and New Deal Years (Ann Arbor: University of Michigan Press, 2009).

56 Skocpol, Protecting Soldiers and Mothers, ch. 9.

57 Suzanne Mettler, Dividing Citizens: Gender and Federalism in New Deal Public Policy (Ithaca, NY: Cornell University Press, 1998).

58 Esther Peterson, “The Status of Women in the United States,” International Labour Review 89 (1964): 447–60.

59 President's Commission on the Status of Women, American Women: Report of the President's Commission on the Status of Women (Washington, DC: President's Commission on the Status of Women, 1963), 43.

60 President's Commission on the Status of Women, Report of the Committee on Private Employment (Washington, DC: President's Commission on the Status of Women, October 1963), 43.

61 The report summarized: “It would not be practicable to set up a separate program. Several members believed that maternity benefits should be included in State temporary disability insurance legislation, with one member believing that no distinction should be made between temporary disability due to pregnancy and childbirth and other types of disabilities. Several other members believed that no progress could be looked for in the enactment of State temporary disability insurance and that the possibility of including maternity benefits under the OASDI program should be explored. One member felt that the current or foreseeable need for maternity benefits did not justify the disadvantages of Federal action or encouragement at this point.” See President's Commission on the Status of Women, Report of the Committee on Social Insurance and Taxes (Washington, DC: President's Commission on the Status of Women, October 1963), 55–57.

62 Serena Mayeri, Reasoning from Race: Feminism, Law, and the Civil Rights Revolution (Cambridge, MA: Harvard University Press, 2011), chaps. 1–2; Kessler-Harris, In Pursuit of Equity, 230–33.

63 For the origins of the sex discrimination provision in Title VII, see Serena Mayeri, “Intersectionality and Title VII: A Brief (Pre-)History,” Boston University Law Review 95 (2015): 713–32.

64 Pedriana, “From Protective to Equal Treatment.”

65 Cobble, The Other Women's Movement, 173–77 and 182–90; Vogel, Mothers on the Job, 57.

66 Cobble, The Other Women's Movement, 191.

67 Daily Labor Report, May 2, 1967, quoted in Cobble, The Other Women's Movement, 186, n. 36.

68 Their reasoning was that “if these laws were phrased in terms of ‘persons’ rather than ‘men’ or ‘women,’ the meaning or effect could be no different. Thus, the legislature by its choice of terminology has not made any sex classification.” See Pauli Murray and Mary O. Eastwood, “Jane Crow and the Law: Sex Discrimination and Title VII,” George Washington Law Review 34 (1965): 239–40. Murray and Eastwood were also cofounders of NOW.

69 Katherine Turk, Equality on Trial: Gender and Rights in the Modern American Workplace (Philadelphia: University of Pennsylvania Press, 2016), ch. 1.

70 Ibid., 25–26; Cobble, The Other Women's Movement, 215.

71 They articulated a broad and general claim about maternity leave: “Women should be protected by law to ensure their rights to return to their jobs within a reasonable time after childbirth, without loss of seniority or other accrued benefits, and should be paid maternity leave as a form of social security and/or employee benefit.” Other topics on NOW's agenda included appointment of women as EEOC commissioners, sex-segregated job advertisements, protective labor legislation, discrimination in retirement and pension plans, overall employment rates among women, and more. See Carol Kleiman, “Working Woman: N.O.W. Wants Action on Women's Bill of Rights,” Chicago Tribune, August 18, 1968; Kathryn F. Clarenbach, Betty Friedan, and Caroline Davis, “Letter from NOW to EEOC Chair and Commissioners,” November 11, 1966, box 5, A1 4, RG 403, National Archives at College Park. Pressure also came from feminists within the EEOC; see Turk, Equality on Trial, 33–34.

72 Kessler-Harris, In Pursuit of Equity, 254–56. Officials in the EEOC had been planning to issue such guidelines since 1965, when they responded to the complaint a woman who was fired when she was five months pregnant. See Citizens’ Advisory Council on the Status of Women, “Official Report of Proceedings, October 26, 1965,” 1965, 26, box 46, A1 35080-G, RG 86, National Archives at College Park.

73 Turk, Equality on Trial, 34; Vogel, Mothers on the Job, 59–65.

74 Kessler-Harris, In Pursuit of Equity, 264–65. See also CAC meeting transcripts from October 1965, May-June 1966, and February 1967 in boxes 46–49, A1 35080-G, RG 86, National Archives at College Park.

75 Citizens’ Advisory Council on the Status of Women, Report of the Task Force on Social Insurance and Taxes (Washington, DC: Citizens’ Advisory Council on the Status of Women, April 1968), 44.

76 Citizens’ Advisory Council on the Status of Women, Women in 1970 (Washington, DC: Citizens’ Advisory Council on the Status of Women, March 1971), 4, 20–22.

77 The immediate trigger for the CAC's deliberations were requests for comment on maternity leave from the Civil Service Commission, the Office of Federal Contract Compliance (OFCC), and the EEOC. The latter two agencies had legal authority to enforce sex discrimination laws. Notably, the Civil Service Commission had suggested a gender-specific maternity leave policy for federal employees, which the CAC forcefully rejected in favor of an antidiscrimination approach. See Citizens’ Advisory Council on the Status of Women, “Official Report of Proceedings, October 29, 1970,” 1970, 29, box 49, A1 35080-G, RG 86, National Archives at College Park.

78 Address by Jacqueline G. Gutwillig, Chairman of the CAC, at the Conference of Interstate Association of Commissions on the Status of Women on June 19, 1971, reprinted in Citizens’ Advisory Council on the Status of Women, Women in 1971 (Washington, DC: Citizens’ Advisory Council on the Status of Women, January 1972), 53–58. Gutwillig believed that “one of the most important contributions of [the CAC's] consideration of this issue” was “the semantic separation of leave for childbirth from leave for child rearing.” She made an extended argument for why childbirth should be analogized to temporary disability for employment purposes. As for child rearing, she said, “we felt [it] was a separate topic that required separate treatment as both men and women have the responsibility to rear children.” See also Elizabeth Duncan Koontz, “Childbirth and Child Rearing Leave: Job-Related Benefits,” New York Law Forum 17 (1971): 480–502.

79 Some CAC members were concerned about the impact it may have on state TDI program funds, but the wider consensus was that programs provided by employers and insurance companies could and should be affected. See Citizens’ Advisory Council on the Status of Women, “Summary of Meeting October 28–29, 1970, 4th Meeting of Citizens’ Advisory Council on the Status of Women,” 1970, box 55, A1 35080-H, RG 86, National Archives at College Park. For the quoted phrase, see Koontz, “Childbirth and Child Rearing Leave,” 495–96.

80 Citizens’ Advisory Council on the Status of Women, “Official Report of Proceedings, October 29, 1970,” 146.

81 The CAC further argued that since “the employer frequently pays all or part of the cost of such benefits, such policies could very well result in reluctance to hire women of childbearing age.” See Citizens’ Advisory Council on the Status of Women, Women in 1970, 22.

82 Cobble, The Other Women's Movement, 185; Vogel, Mothers on the Job, 59.

83 The guidelines stated: “Women shall not be penalized in their conditions of employment because they require time away from work on account of childbearing. When, under the employer's leave policy the female employee would qualify for leave, then childbearing must be considered by the employer to be a justification for leave of absence for female employees for a reasonable period of time.” See Office of Federal Contract Compliance, “Part 60-20—Sex Discrimination Guidelines,” Federal Register 35, no. 111 (June 9, 1970): 8888–89. This rule had some overlap with the CAC recommendation that would be issued four months later, although the latter made a more expansive claim analogizing pregnancy to temporary disability. It is not clear from the available evidence whether the OFCC was inspired by the CAC or vice versa. In November 1970, the director of the OFCC sent a memo to federal agency heads clarifying the guidelines, using language that hewed more closely to the recently issued CAC recommendation: “Female employees on leave of absence for childbearing must continue to accrue all seniority rights for job security, promotion, and pensions and other fringe benefits if the same policy applies to other types of leave.” See Erica B. Grubb and Margarita C. McCoy, “Love's Labors Lost: New Conceptions of Maternity Leaves Comments,” Harvard Civil Rights-Civil Liberties Law Review 7, no. 1 (1972): 280–81.

84 Carol Kleiman, “Conference on Women's Rights: A Focus on Discrimination,” Chicago Tribune, February 10, 1972, sec. 2.

85 At least four states (Illinois, Minnesota, Oregon, and Pennsylvania) adopted such rules in 1971, before the EEOC did so in April 1972. See Rosella Maria Gardecki, “The Labor Market Effects of Maternity Mandates” (PhD diss., Michigan State University, 1998), 15. For an illustrative example, see Sally Wagner, “Law Opens New Jobs to Women,” Chicago Tribune, September 4, 1971.

86 Sonia Pressman Fuentes, Director of the Legislative Counsel Division at the EEOC, argued in 1971 that this followed from the commission's rulings on mandatory maternity leave policies. See Koontz, “Childbirth and Child Rearing Leave,” 489; Grubb and McCoy, “Love's Labors Lost,” 269–70. John Burgess, a regional attorney in the New York EEOC office, argued that maternity leave was a “clear right,” pointing to the OFCC's rules. See Marilyn Bender, “Maternity Leave: An Employe Right?” New York Times, May 2, 1971.

87 Grubb and McCoy, “Love's Labors Lost,” n. 54; Ethel Bent Walsh, “Memorandum on Proposed and New Revised Guidelines on Sex Discrimination Dated August 31,” September 17, 1971, container 1, A1 27, RG 403, National Archives at College Park.

88 Equal Employment Opportunity Commission, “Guidelines on Discrimination Because of Sex, Section 1604,” Federal Register 37, no. 66 (April 5, 1972): 6819.

89 For more on the Equal Employment Opportunity Act of 1972, see Anthony S. Chen, The Fifth Freedom: Jobs, Politics, and Civil Rights in the United States, 1941–1972 (Princeton University Press, 2009), ch. 5.

90 These laws were passed in 1961 and 1963, respectively. See Murray and Eastwood, “Jane Crow and the Law,” 246.

91 For examples, see Citizens’ Advisory Council on the Status of Women, “Significant Changes in State Protective Legislation in 1966 and 1967,” October 25, 1967, item No. 144, box 44, A1 35080-F, Record Group 86, National Archives at College Park; David A. Levy, “State Labor Legislation Enacted in 1973,” Monthly Labor Review 97 (1974): 26; David A. Levy, “State Labor Legislation Enacted in 1974,” Monthly Labor Review 98 (1975): 17. EEOC Commissioner Aileen C. Hernandez, who later became president of NOW, was a strong proponent of reconciling protective legislation and Title VII by extending protections to men; see Aileen C. Hernandez, “Memorandum on Sex Discrimination and State Laws,” October 10, 1966, and note dated October 16, 1966, container 4, A1, RG 43, National Archives at College Park.

92 Marilyn Bender, “Many Companies Revising Maternity Leave Policies,” New York Times, December 10, 1973.

93 Erin Kelly and Frank Dobbin, “Civil Rights Law at Work: Sex Discrimination and the Rise of Maternity Leave Policies,” 1999, 455–92.

94 See testimony from union representatives in U.S. Congress, Senate, Committee on Human Resources, Subcommittee on Labor, Discrimination on the Basis of Pregnancy, 95th Congress, 1st Sess., 1977, 222–304. Notably, Leon Lynch from the United Steelworkers recounted that steel companies used the legal challenges to the EEOC guidelines that emerged in the late 1970s to justify delaying action on maternity leave.

95 Gardecki, “The Labor Market Effects of Maternity Mandates,” 15. The CAC saw such regulatory changes as a successful outcome of their advocacy efforts; see Jacqueline G. Gutwillig, “Citizens’ Advisory Council on the Status of Women Meeting of October 5 and 7, 1972: Chairman's Notes,” 1972, box 57, A1 35080-H, RG 86, National Archives at College Park. Alaska made this change legislatively, adding pregnancy and parenthood as protected categories in its employment antidiscrimination statute in 1975; see Deborah T. Bond, “State Labor Legislation Enacted in 1975,” Monthly Labor Review 99 (1976): 18.

96 Gardecki, “The Labor Market Effects of Maternity Mandates,” 96. New York also took action in its capacity as an employer. As a response to the EEOC rule, state officials eliminated their mandatory leave policy for public employees and ruled that pregnant workers could access sick leave benefits in 1973. See “State Liberalizes Policy for Maternity Leaves,” New York Times, August 21, 1973.

97 Citizens’ Advisory Council on the Status of Women, Women in 1973 (Washington, DC: Citizens’ Advisory Council on the Status of Women, May 1974), 9–10; Maurice Carroll, “U.S. Backs Child-Care Leaves for Men in a School Case Here,” New York Times, January 6, 1973. One complainant, Gary Ackerman, argued: “Arbitrarily denying me a privilege that [the Board of Education] would grant to a woman is absolutely discriminatory.” See Lisa Hammel, “Maternity Leave for Men? Two Fathers Who Say It's Only Fair,” New York Times, May 4, 1971. Ackerman was elected to Congress a decade later and recounted his lawsuit while arguing in favor of the FMLA. See U.S. Congress, House, Committee on Post Office and Civil Service, Subcommittee on Civil Service, Family and Medical Leave Act of 1987, 100th Congress., 1st Sess., 1987, 2–4.

98 Deborah Dinner, “The Universal Childcare Debate: Rights Mobilization, Social Policy, and the Dynamics of Feminist Activism, 1966–1974,” Law and History Review 28, no. 3 (2010): 360.

99 By 1975, six circuit court decisions had upheld the EEOC guidelines. See Citizens’ Advisory Council on the Status of Women, Women in 1975 (Washington, DC: Citizens’ Advisory Council on the Status of Women, March 1976), 10. For a discussion of “mandatory leave” or “pregnancy dismissal” policies, see Dowd, “Maternity Leave,” 705–709. The Supreme Court struck down a public employer's mandatory leave policy as violating the due process clause in Cleveland Board of Education v. LaFleur, 414 U.S. 632 (1974). Lower courts had struck down mandatory leave policies under the equal protection clause and the EEOC had ruled that such policies violated Title VII since the late 1960s. See Jean Karen Beasley, “Constitutional Law—Women's Rights—Mandatory Pregnancy Leave Unconstitutional,” West Virginia Law Review 77, no. 4 (1974): 796–807.

100 Amicus curiae briefs were filed by NOW, the American Civil Liberties Union, the Center for Constitutional Rights, the AFL-CIO, the International Union of Electrical, Radio and Machine Workers (IUE), the Physicians Forum, the Women's Equity Action League Education and Defense Fund, and the EEOC.

101 Opponents filing briefs included the U.S. Chamber of Commerce, the Merchants and Manufacturers Association, the National Association of Manufacturers, the Pacific Legal Foundation, and General Electric.

102 Geduldig v. Aiello, 417 U.S. 484 (1974).

103 See, for example, “U.S. Steel Is Accused of Sex Bias in Suit Filed by the EEOC,” Wall Street Journal, July 14, 1975.

104 Citizens’ Advisory Council on the Status of Women, Women in 1974 (Washington, DC: Citizens’ Advisory Council on the Status of Women, May 1975), 10; Jacqueline G. Gutwillig, “Citizens’ Advisory Council on the Status of Women Meeting of May 10–11, 1974: Chairperson's Notes,” 1974, box 58, A1 35080-H, RG 86, National Archives at College Park; Virginia Lee Warren, “The Fight for Disability Benefits in Pregnancy,” New York Times, September 16, 1975; Rhoda Bunnell, “The Impact of Geduldig v. Aiello on the EEOC Guidelines on Sex Discrimination,” Indiana Law Journal 50 (1975): 592–606.

105 This was a disparate-impact argument that went beyond the claim that the exclusion of pregnant women from benefit programs constituted sex-based disparate treatment. The lawyers expanded their argument both because of the failure of a disparate-treatment argument in Geduldig and the recent success of a disparate-impact framework in Griggs v. Duke Power (1971). See Mayeri, Reasoning from Race, 108–14.

106 General Electric Co. v. Gilbert, 429 U.S. 125 (1976).

107 Peg Simpson, “A Victory for Women,” Civil Rights Digest 11 (Spring 1979): 17. This coalition included both sides of the “equal treatment” vs. “special treatment” debate that had emerged after Title VII's passage, indicating the widespread support for using an antidiscrimination approach to maternity protections in employment. See Wendy W. Williams, “The Equality Crisis: Some Reflections on Culture, Courts, and Feminism,” Women's Rights Law Reporter 7, no. 3 (1982): 193–94.

108 Cobble, The Other Women's Movement, 217; Susan Deller Ross and Ruth Weyand, “Fact Sheet: Campaign to End Discrimination Against Pregnant Workers,” December 1976, folder 12, box 55, NOW records, Schlesinger Library. Weyand was an attorney for the International Union of Electrical, Radio and Machine Workers (IUE).

109 Deborah Dinner, “Strange Bedfellows at Work: Neomaternalism in the Making of Sex Discrimination,” Washington University Law Review 91, no. 3 (2014): 453–530; Mayeri, Reasoning from Race, 120.

110 Dinner, “Strange Bedfellows at Work,” 491, 505–11. Dinner argues that neomaternal arguments “leveraged the social value of motherhood to overcome market libertarian opposition to pregnancy-related entitlements.”

111 Susan Deller Ross recounted that the groups in the coalition “were united by one concern—the realization of Gilbert's enormous potential for harm in eradicating the rights which women workers had fought so hard to achieve in thirteen years since Congress enacted Title VII of the 1964 Civil Rights Act.” Their preferred solution was a statute that “incorporates the theory of the EEOC pregnancy guidelines which the Supreme Court declined to follow.” See U.S. Congress, House, Committee on Education and Labor, Subcommittee on Employment Opportunities, Legislation to Prohibit Sex Discrimination on the Basis of Pregnancy, 95th Congress, 1st Sess., 1977, 47–50. See also Ross and Weyand, “Fact Sheet: Campaign to End Discrimination Against Pregnant Workers.”

112 Advocates repeatedly stressed that the bill would only require “equal treatment” and “equal protection” in their testimonies at congressional hearings. See U.S. Congress, House, Committee on Education and Labor, Subcommittee on Employment Opportunities, Legislation to Prohibit Sex Discrimination on the Basis of Pregnancy; Senate, Committee on Human Resources, Subcommittee on Labor, Discrimination on the Basis of Pregnancy. See also Mayeri, Reasoning from Race, 121.

113 See testimonies from representatives of the U.S. Chamber of Commerce, the National Association of Manufacturers, and several industry associations in U.S. Congress, House, Committee on Education and Labor, Subcommittee on Employment Opportunities, Legislation to Prohibit Sex Discrimination on the Basis of Pregnancy, 84–121; Legislation to Prohibit Sex Discrimination on the Basis of Pregnancy, Part 2, 95th Congress, 1st Sess., 1977, 3–61; Senate, Committee on Human Resources, Subcommittee on Labor, Discrimination on the Basis of Pregnancy, 80–107.

114 To Amend Title VII of the Civil Rights Act of 1964 to Prohibit Sex Discrimination on the Basis of Pregnancy, Public Law 95-555, U.S. Statutes at Large 92 (1978): 2076–77.

115 Kelly and Dobbin, “Civil Rights Law at Work,” fig. 4. However, Kelly and Dobbin find the rate of voluntary adoption of leave policies by employers did not increase significantly after the passage of the PDA.

116 The agency's draft regulation required employers to provide a “reasonable period” of leave, rather than the eight weeks specification that would appear in the legislation. See Draft of 1971 Massachusetts Commission Against Discrimination guidelines, cited in Arthur Larson, “Sex Discrimination as to Maternity Benefits,” Duke Law Journal 1975, no. 4 (1975): n. 130. The legislation was debated as the Massachusetts attorney general investigated the validity of the state's existing mandatory pregnancy leave statute in the face of federal antidiscrimination law and jurisprudence. The AG found this statute invalid in 1971, and it was repealed in 1974. See Ayelet R. Weiss, “New Fathers, Old Rights: How the Massachusetts Maternity Leave Act Discriminates against Men,” Boston University Public Interest Law Journal 22 (2013): 442–43; Sylvia Weissbrodt, “Changes in State Labor Law in 1972,” Monthly Labor Review 96 (1973): 30.

117 Testimony of Howard Orenstein, lawyer for the Connecticut Commission on Human Rights and Opportunities, in Connecticut General Assembly, Joint Standing Committee on Labor and Industrial Relations, Hearing on Senate Bill 1565 and House Bill 8125, 1973, located in legislative history for P.A. 647 compiled by the Connecticut State Library. See also Levy, “State Labor Legislation Enacted in 1973,” 23.

118 For Washington and Kansas, see Women's Legal Defense Fund, “Appendix B”; Dowd, “Maternity Leave,” 731. For California, see California Commission on the Status of Women, “Commission on the Status of Women Newsletter, January 1975,” 1975, folder 1, box 2, Commissions on the Status of Women collection, Schlesinger Library.

119 Montana Legislative Assembly, Subcommittee on Judiciary, Equality of the Sexes (Helena: Montana Legislative Council, 1974); Herma Hill Kay, “Equality and Difference: The Case of Pregnancy,” Berkeley Women's Law Journal 1, no. 1 (1985): 10–11; Bond, “State Labor Legislation Enacted in 1975,” 24.

120 See Richard R. Nelson, “State Labor Legislation Enacted in 1978,” Monthly Labor Review 102 (1979): 26–42. This law was partially a response to the Supreme Court's ruling in Gilbert, which interest groups and legislators saw as potentially invalidating the California state agency's rule as well. See California State Assembly, Committee on Labor, Employment and Consumer Affairs, Hearing on AB 1960: Employment Discrimination Based on Pregnancy, 1978. Retrieved by request from the California State Archives.

121 Women's Legal Defense Fund, “Appendix B”; Dowd, “Maternity Leave,” 731. Hawaii had enacted a statute adding pregnancy as a protected category in its employment discrimination law in 1981; see Richard R. Nelson, “State Labor Legislation Enacted in 1981,” Monthly Labor Review 105 (1982): 29–42. A 1979 bill in Illinois would have guaranteed child-rearing leave for both men and women, but it failed to pass. See “Maternity Leave for Dads?” Chicago Tribune, July 18, 1979.

122 The states were Michigan (1978), Maine (1979), Ohio (1979), Kentucky (1980), Hawaii (1981), Connecticut (1981), and Wisconsin (1981). See Nelson, “State Labor Legislation Enacted in 1978”; Richard R. Nelson, “State Labor Legislation Enacted in 1979,” Monthly Labor Review 103 (1980): 22–39; Richard R. Nelson, “State Labor Legislation Enacted in 1982,” Monthly Labor Review 106 (1983): 44–56. Wisconsin's law was unusual: It prohibited discrimination “against any woman on the basis of … maternity leave.” It was unclear whether this provision constituted an affirmative guarantee of maternity leave. See Dowd, “Maternity Leave,” 730.

123 Note that the EEOC's 1972 guidelines simultaneously prohibited discrimination in employee benefits on the basis of pregnancy and characterized the failure to provide pregnancy leave (regardless of what other leave benefits were available) as a form of discrimination.

124 During oral arguments, an attorney for the plaintiffs illustrated their central argument about the contradiction between the PDA and the Montana statute as follows: “Federal [equal protection] law created a round hole into which the state could have created complementary legislation. Instead, the state created a square peg.” See Jim Robbins, “Montana Court Case Raises Issue of Pregnancy and Job Bias,” The Boston Globe, September 30, 1984.

125 Briefs of the Women's Law Section of the State Bar of Montana and the Montana Human Rights Commission cited in Miller-Wohl Co. v. Commissioner of Labor & Indus., 214 Mont. 238 (Supreme Court of Montana 1984).

126 Miller-Wohl Co. v. Commissioner of Labor & Industry.

127 The Merchants and Manufacturers Association and the California Chamber of Commerce joined Cal Fed (the employer) as plaintiffs in the case. See amicus curiae briefs of the U.S. Chamber of Commerce, the Equal Employment Advisory Council, and the United States in California Federal Savings & Loan Assn. v. Guerra, 479 U.S. 272. These briefs cited similar arguments they had made in the Miller-Wohl case. For more on the Reagan administration's support for business interests’ argument in this case, see Stuart Taylor Jr., “U.S. Agency Joins Pregnancy Fight: Justice Dept. Asks High Court to Forbid More Generous Benefits for Maternity,” New York Times, November 29, 1985.

128 California Federal Savings & Loan Assn. v. Guerra, 34 Fair Empl. Prac. Cas. (BNA) 562 (C.D. Cal. 1984).

129 This coalition included some national feminist organizations (e.g., 9 to 5, National Association of Working Women, Planned Parenthood), state branches of some organizations (e.g., the California division of the American Association of University Women), several state and local professional associations and labor unions, prominent activists (e.g., Betty Friedan, Dolores Huerta), and many state legislators. See brief of Coalition for Reproductive Equality in the Workplace in California Federal Savings & Loan Assn. v. Guerra, 479 U.S. 272.

130 Brief of Equal Rights Advocates, the California Teachers Association, the Northwest Women's Law Center, the San Francisco Women Lawyers Alliance and briefs of the Employment Law Center of the Legal Aid Society of San Francisco, Human Rights Advocates, and California Women Lawyers in California Federal Savings & Loan Assn. v. Guerra, 479 U.S. 272.

131 Brief of NOW, National Women's Law Center, Women's Law Project, and Women's Legal Defense Fund and brief of the AFL-CIO, the ACLU, the League of Women Voters of the United States, the League of Women Voters of California, the National Women's Political Caucus, and the Coal Employment Project in California Federal Savings & Loan Assn. v. Guerra, 479 U.S. 272.

132 Wisensale, Family Leave Policy, 134. Berman was also pressured to act in Congress by Maxine Waters, then a state legislator in California and a cosponsor of the original 1978 law. See Ronald D. Elving, Conflict and Compromise: How Congress Makes the Law (New York: Simon and Schuster, 1996), 19. Waters also met with representatives from NOW and other organizations to consider how to respond in California, and their discussions included a proposal that would extend parental leave to both women and men. See Jack Jones, “Women's and Labor Groups Join in Opposing Maternity Leave Ruling,” Los Angeles Times, March 21, 1984.

133 Anne L. Radigan, Concept & Compromise: The Evolution of Family Leave Legislation in the U.S. Congress (Washington, DC: Women's Research & Education Institution, 1988), 9. Rep. Pat Schroeder (D-CO) recounted that Berman was “unwilling to sponsor a [parental leave bill], preferring one that called for maternity leave only—even though the California law was being challenged in the courts because by extending benefits only to women, it discriminated against men.” See Pat Schroeder, Champion of the Great American Family (New York: Random House, 1989), 50.

134 Radigan, Concept & Compromise, 9; Elving, Conflict and Compromise, 20. Wendy Williams was a lead attorney in Geduldig, and Susan Deller Ross was the cochair of the PDA coalition.

135 Elving, Conflict and Compromise, ch. 1; Elison, “Policy Innovation in a Cold Climate,” 38–40; Wisensale, Family Leave Policy, 186; Schroeder, Champion of the Great American Family, 49–50.

136 Also present at the meeting were California state legislator Maxine Waters, Diann Rust-Tierney from the National Women's Law Center, and Wendy Williams. See Lenhoff, Donna R. and Bell, Lissa, “Government Support for Working Families and for Communities: Family and Medical Leave as a Case Study,” in Learning from the Past—Looking to the Future, ed. Beeem, Christopher and Heymann, Jody (Racine, WI: Work, Family, and Democracy Project, 2002)Google Scholar.

137 This characterization of the meeting comes from Elving, Conflict and Compromise, 22–23. Elving's account is based on several interviews with advocates and legislators including Lenhoff, but he does not specify which sources were used in this section. This account's accuracy is buttressed by a similar recounting of the arguments provided for pursuing gender-neutral leave in Lenhoff and Bell, “Government Support for Working Families and for Communities,” 4. For more discussion on sources, see Appendix A.

138 Elving, Conflict and Compromise, 29; Wisensale, Family Leave Policy, 136–37; Radigan, Concept & Compromise, 10–13. This proposal was entitled the “Family Employment Security Act.”

139 Berman, quoted in Elving, Conflict and Compromise, 32.

140 Radigan, Concept & Compromise, 12–13; Elving, Conflict and Compromise, 30–34.

141 In the early stages in 1984, representatives from the Association of Junior Leagues, the Coal Employment Project, and the Children's Defense Fund were involved. By 1985, the American Association of University Women, the ACLU, the National Federation of Business and Professional Women's Clubs, the National Women's Political Caucus, and the Women's Equity Action League had joined. More groups joined as the issue rose in prominence: the AFL-CIO, the National Education Association, the Coalition of Labor Union Women, the Disability Rights Education and Defense Fund, the National Council of Jewish Women, the League of Women Voters, the American Nurses Association, and the Older Women's League. See Radigan, Concept & Compromise, 9, 15, 16.

142 U.S. Congress, House, Parental and Disability Leave Act of 1985, 99th Congress, 1st Sess., introduced April 4, 1985.

143 Elving, Conflict and Compromise, 53; Wisensale, Family Leave Policy, 138–40.

144 Elving, Conflict and Compromise, ch. 3; Wisensale, Family Leave Policy, 138–42. Schroder had worked to recruit Clay, who held a crucial position as chair of the subcommittee on labor management. The change of terminology from “disability” to “medical” leave was a response to disability rights activists’ concerns; see Radigan, Concept & Compromise, 16.

145 Radigan, Concept & Compromise, 11.

146 For a clear statement of this argument, see WLDF statement in U.S. Congress, House, Committee on Education and Labor, Subcommittee on Labor-Management Relations, Parental and Medical Leave Act of 1986, 99th Congress, 2nd Sess., 1986. When recounting this decision, Lenhoff and a former WLDF colleague emphasized that the decision to combine childbearing and temporary disability leave in a gender-neutral framework would ensure that the proposal was “consistent with the language of the Pregnancy Discrimination Act.” See Lenhoff, Donna R. and Becker, Sylvia M., “Family and Medical Leave Legislation in the States: Toward a Comprehensive Approach Symposium: Legislative Approaches to Work and the Family,” Harvard Journal on Legislation 26 (1989): 434Google Scholar. See also Williams, Wendy W., “Equality's Riddle: Pregnancy and the Equal Treatment/Special Treatment Debate,” New York University Review of Law & Social Change 13 (1985): 325–80Google Scholar.

147 Eleanor Holmes Norton, former EEOC chair, stated this argument clearly: “The fact remains that if [the pregnancy-only leave policy upheld by the Supreme Court's 1987 ruling in Cal Fed] becomes the model, employers will provide something for women affected by pregnancy that they are not required to provide for other employees. This gives fodder to those who seek to discriminate against women in employment.” Although such discrimination would be illegal on paper, Norton noted that proving discrimination placed heavy burdens on the plaintiff, especially “in the present climate of diminished EEO enforcement.” See U.S. Congress, House, Committee on Post Office and Civil Service, Family and Medical Leave Act of 1987. Many other advocates made similar arguments; see, for example, statement by WLDF and testimony of Irene Natividad, chair of the National Women's Political Caucus, in U.S. Congress, House, Committee on Education and Labor, Subcommittee on Labor-Management Relations, Parental and Medical Leave Act of 1986.

148 See testimony of Lenhoff in U.S. Congress, House, Committee on Education and Labor, Subcommittee on Labor-Management Relations, Family and Medical Leave Act of 1987; testimony of Cheryle Mitvalsky (on behalf of the Association of Junior Leagues) in Senate, Committee on Labor and Human Resources, Subcommittee on Children, Family, Drugs, and Alcoholism, Parental and Medical Leave Act, Part 1, 100th Congress, 1st Sess., 1987.

149 Lenhoff and Bell, “Government Support for Working Families and for Communities,” 4.

150 Elving, Conflict and Compromise, 38–39; Radigan, Concept & Compromise, 10; Bernstein, The Moderation Dilemma, 94–95, 98.

151 California Federal Savings & Loan Assn. v. Guerra, 758 F.2nd 390 (U.S. Ct. App., 9th Cir. 1985); California Federal Savings & Loan Assn. v. Guerra, 479 U.S. 272 (1987). The Supreme Court ruled that the California statute served to advance the PDA's goal of equal employment opportunity and that while the PDA barred benefit ceilings for pregnant workers, it did not prohibit the creation of floors above which employers could equalize benefits if they wished.

152 Elving, Conflict and Compromise, 45–46.

153 Testimony of Rep. Berman in U.S. Congress, House, Committee on Education and Labor, Subcommittee on Labor-Management Relations, Family and Medical Leave Act of 1987; opening statement of Sen. Dodd in Senate, Committee on Labor and Human Resources, Subcommittee on Children, Family, Drugs, and Alcoholism, Parental and Medical Leave Act, Part 1.

154 Lenhoff and Becker, “Family and Medical Leave Legislation in the States,” 420.

155 Elving, Conflict and Compromise, 108–109. The resistance to this proposal cannot be explained only because it came from a conservative Republican. As discussed below, advocates and congressional allies were willing to make a number of major compromises in order to win Republican support.

156 Sholar, Megan, Getting Paid While Taking Time: The Women's Movement and the Development of Paid Family Leave Policies in the United States (Philadelphia, PA: Temple University Press, 2016), 4243CrossRefGoogle Scholar; Bernstein, The Moderation Dilemma, 46.

157 Elving, Conflict and Compromise, 23, 30–32, 38–39.

158 For example, in a 1987 hearing, Rep. Schroeder argued: “Every other country has figured this is family legislation. Here people want to play like it is women's legislation. Well, I mean, this is really parents’ legislation. All these children have fathers too, and they are concerned about this.” Later in that hearing, Eleanor Smeal, president of NOW, argued “[This] deals with parental leave. And that is what we need today. A maternity leave bill alone would be old fashioned today. This is a very modern bill. It is also a family bill.” See U.S. Congress, House, Committee on Education and Labor, Subcommittee on Labor-Management Relations, Family and Medical Leave Act of 1987. See also testimonies of Massachusetts state Representatives Mary Gibson and David Magnani in U.S. Congress, Senate, Committee on Labor and Human Resources, Subcommittee on Children, Family, Drugs, and Alcoholism, Parental and Medical Leave Act, Part 1.

159 Lenhoff and Becker, “Family and Medical Leave Legislation in the States,” 418.

160 The advocacy coalition's very first draft, the “Family Employment Security Act,” had included ten days of paid leave, but this was not included in any of introduced bills. Elving, Conflict and Compromise, 29.

161 Members also cited the prominence of deficit concerns in Congress as another reason why a paid leave bill would not be viable. Radigan, Concept & Compromise, 11; Elving, Conflict and Compromise, 30; Wisensale, Family Leave Policy, 138.

162 The provision for a study commission persisted through the final version of the FMLA, but it was no longer charged with exploring possibilities for paid leave.

163 See testimonies of Wendy Williams and Joan Krupa (on behalf of the Association of Junior Leagues) in U.S. Congress, House, Committee on Post Office and Civil Service and Committee on Education and Labor, Parental and Disability Leave, 99th Congress, 1st Sess., 1985; testimonies of Thomas Donahue (AFL-CIO) and Irene Natividad (National Women's Political Caucus) and written statement of the WLDF in U.S. Congress, House, Committee on Education and Labor, Subcommittee on Labor-Management Relations, Parental and Medical Leave Act of 1986; testimonies of Karen Nussbaum (9 to 5, National Association of Working Women, SEIU) and Donna Lenhoff (WLDF) in U.S. Congress, House, Committee on Education and Labor, Subcommittee on Labor-Management Relations, Family and Medical Leave Act of 1987; testimony of Eleanor Holmes Norton in House, Committee on Post Office and Civil Service, Subcommittee on Civil Service, Family and Medical Leave Act of 1987.

164 U.S. Congress, House, Committee on Post Office and Civil Service and Committee on Education and Labor, Parental and Disability Leave, 20.

165 See, for example, Elving, Conflict and Compromise, 39; Bernstein, The Moderation Dilemma, 45. See also testimony of Massachusetts state legislators in U.S. Congress, Senate, Committee on Labor and Human Resources, Subcommittee on Children, Family, Drugs, and Alcoholism, Parental and Medical Leave Act, Part 1.

166 Alex Waddan, “The U.S. Welfare State Since 1970,” in Oxford Handbook of U.S. Social Policy, ed. Daniel Béland, Kimberly J. Morgan, and Christopher Howard (New York: Oxford University Press, 2014), 95–111; Slessarev, “Racial Tensions and Institutional Support”; Jacob S. Hacker, “Privatizing Risk without Privatizing the Welfare State: The Hidden Politics of Social Policy Retrenchment in the United States,” American Political Science Review 98, no. 2 (2004): 243–60.

167 For representative examples, see testimonies of Susan Hager (representing the U.S. Chamber of Commerce) in U.S. Congress, House, Committee on Education and Labor, Subcommittee on Labor-Management Relations, Parental and Medical Leave Act of 1986; Virginia B. Lamp (U.S. Chamber of Commerce) and Marsha Burridge (Independent Insurance Agents of America) in U.S. Congress, House, Committee on Education and Labor, Subcommittee on Labor-Management Relations, Family and Medical Leave Act of 1987; John J. Motley (National Federation of Independent Businesses) in Senate, Committee on Labor and Human Resources, Subcommittee on Children, Family, Drugs, and Alcoholism, Parental and Medical Leave Act, Part 2, 100th Congress, 1st Sess., 1987; and Earl H. Hess (U.S. Chamber of Commerce) and John J. Motley in U.S. Congress, House, Committee on Education and Labor, Subcommittee on Labor-Management Relations, Hearing on H.R. 770, the Family and Medical Leave Act of 1989, 101st Congress, 1st Sess., 1989.

168 For a discussion of the tension between civil rights law's emphasis on individual rights and New Deal liberalism's (partial) redistributive orientation, see Schiller, Reuel, Forging Rivals: Race, Class, Law, and the Collapse of Postwar Liberalism (New York: Cambridge University Press, 2014)Google Scholar. See also Dinner, Deborah, “Beyond Best Practices: Employment-Discrimination Law in the Neoliberal Era,” Indiana Law Journal 92 (2016): 1059–118Google Scholar.

169 U.S. Congress, House, Family and Medical Leave Act of 1986, H. Rep. 99-699/2, 99th Congress, 2nd Sess., reported August 8, 1986. Radigan reports that Roukema requested this change; see Radigan, Concept & Compromise, 22. The notion of covering leave to care for dependents other than children was not entirely new; the advocacy coalition's first draft in 1984 included a pool of short-term leave to care for oneself or dependents when ill, although this had not been seriously pursued.

170 All House bills after August 1986 bore this new name and structure. Senate bills followed suit starting in 1990; see U.S. Congress, Senate, Family and Medical Leave Act of 1990, S. 2973, 101st Congress, 2nd Sess., introduced August 3, 1990.

171 See testimonies of Eleanor Holmes Norton (on behalf of the advocacy coalition) and Beth Moten (National Federation of Federal Employees) in U.S. Congress, House, Committee on Post Office and Civil Service, Subcommittee on Civil Service, Family and Medical Leave Act of 1987; testimony of Gerald McEntee (AFSCME) in Senate, Committee on Labor and Human Resources, Subcommittee on Children, Family, Drugs, and Alcoholism, Parental and Medical Leave Act of 1987, Part 1.

172 Elving, Conflict and Compromise, 66, 157; Radigan, Concept & Compromise, 21–22. See also testimony of Helen McDonald, AARP board member, in U.S. Congress, Senate, Committee on Labor and Human Resources, Subcommittee on Children, Family, Drugs, and Alcoholism, Parental and Medical Leave Act of 1987, Part 2; Louise Crooks, “Care-Giving at Home Should Not Cost You Your Job,” New York Times, May 20, 1990.

173 Marks, “Party Politics and Family Policy.” See also Bernstein, The Moderation Dilemma, 98–99.

174 Imagine a counterfactual scenario where Rep. Howard Berman's proposal for a pregnancy leave-only bill became the focus of congressional activity. Debate over such a bill would not have presented opportunities for adding types of leave in the same way that a gender-neutral bill that distinguished temporary disabilities and caregiving did.

175 Radigan, Concept & Compromise, 20; Wisensale, Family Leave Policy, 143; Bernstein, The Moderation Dilemma, 101–5; Marks, “Party Politics and Family Policy,” 59. Republican legislators consistently invited representatives from pro-business interest groups to give testimony during hearings on the leave bills.

176 Although most Republicans opposed the bill throughout, support from a few such as Rep. Marge Roukema (R-NJ) and Sen. Arlen Specter (R-PA) helped the bill's eventual passage and enabled advocates to claim that support for the bill was bipartisan. See Elving, Conflict and Compromise, ch. 5.

177 Bernstein, The Moderation Dilemma, 98. Advocates also firmly rejected amendments that would have incentivized rather than required employers to provide leave. See Bernstein, The Moderation Dilemma, 104.

178 Advocates and legislative allies were initially more willing to compromise on eligibility restrictions than leave duration. As the bill struggled to pass with a veto-proof majority during 1988–92, they made concessions on leave duration. See Elving, Conflict and Compromise, 66, 95, 165, 210, 225; Radigan, Concept & Compromise, 21–25; Elison, “Policy Innovation in a Cold Climate,” 38–41.

179 Lenhoff and Becker, “Family and Medical Leave Legislation in the States,” 416. Conversely, for a discussion on how state legislative activity affected the federal process, see Bernstein, The Moderation Dilemma, 108–13.

180 Garand and Monroe, “Family Leave Legislation in the American States,” 343.

181 Steven K. Wisensale and Michael D. Allison, “An Analysis of 1987 State Family Leave Legislation: Implications for Caregivers of the Elderly,” The Gerontologist 28, no. 6 (December 1, 1988): 780. Only Massachusetts included paid benefits in its proposed law.

182 For sources, see Appendix C. Vermont, which passed the last pregnancy-specific leave law in 1989, amended its law into a gender-neutral family and medical leave law in 1992.

183 Elving, Conflict and Compromise, chaps. 9–10.

184 Ibid., chaps. 11–15.

185 Waldfogel, Jane, “Family Leave Coverage in the 1990s,” Monthly Labor Review 122, no. 10 (1999): 13–21Google Scholar.

186 Han, Wen-Jui and Waldfogel, Jane, “Parental Leave: The Impact of Recent Legislation on Parents’ Leave Taking,” Demography 40, no. 1 (2003): 191–200CrossRefGoogle ScholarPubMed; O'Leary, Ann, “How Family Leave Laws Left Out Low-Income Workers,” Berkeley Journal of Employment and Labor Law 28, no. 1 (2007): 1–62Google Scholar.

187 U.S. Bureau of Labor Statistics, National Compensation Survey: Employee Benefits in the United States, March 2020 (Washington, DC: U.S. Department of Labor, Bureau of Labor Statistics, September 2020), table 31.

188 Albiston, Catherine R., Institutional Inequality and the Mobilization of the Family and Medical Leave Act: Rights on Leave (New York: Cambridge University Press, 2010)CrossRefGoogle Scholar.

189 A Better Balance, Overview of Paid Family & Medical Leave Laws. For an example of model state-level legislation supported by the contemporary paid leave advocacy coalition, see A Better Balance and National Partnership for Women & Families, “Model State Paid Family and Medical Leave Statute,” 2015, https://www.nationalpartnership.org/our-work/economic-justice/state-paid-leave-laws.html.

190 National Partnership for Women & Families, Fact Sheet: The Family and Medical Insurance Leave (FAMILY) Act.

191 Lenhoff and Becker, “Family and Medical Leave Legislation in the States,” 439–40; Lenhoff and Bell, “Government Support for Working Families and for Communities,” 13–14. For an account of early efforts at adopting paid leave policies following the passage of the FMLA, see Bernstein, The Moderation Dilemma, ch. 6.

192 National Partnership for Women & Families, Expecting Better.

193 Wisensale, Steven K., “Two Steps Forward, One Step Back: The Family and Medical Leave Act as Retrenchment Policy,” Review of Policy Research 20, no. 1 (March 1, 2003): 135–52CrossRefGoogle Scholar.

194 National Partnership for Women & Families, “More Than 340 Organizations Urge Congress to Support Real Paid Leave, Reject Trump's ‘Inadequate and Unworkable’ Proposal,” press release, June 28, 2017, https://www.nationalpartnership.org/our-impact/news-room/press-statements/more-than-340-organizations-urge-congress-to-support-real-paid-leave-reject-trumps-inadequate-and-unworkable-proposal.html; Claire Cain Miller, “Republicans Now Support a Form of Paid Leave. So What's the Holdup?” The New York Times, November 21, 2019.

195 See, for example, PL+US, “With Emergency Paid Leave Expired, PL+US Urges Biden-Harris Administration to Prioritize Paid Leave in Coronavirus Relief Package,” press release, January 12, 2021; Vicki Shabo and Steven Findlay, “Paid Sick Days and Paid Leave Are Health and Economic Recovery Requirements,” The Hill, May 5, 2020, https://thehill.com/opinion/healthcare/496129-paid-sick-days-and-paid-leave-are-health-and-economic-recovery; Katie Bethell and Becka Klauber Richter, “Biden's Proposed Stimulus Package Includes Paid Leave and Childcare Support. These Policies Need to Be Permanent,” Business Insider, January 24, 2021, https://www.businessinsider.com/biden-stimulus-paid-family-leave-childcare-support-permanent-policy-2021-1.

196 Rose, Deondra, Citizens By Degree: Higher Education Policy and the Changing Gender Dynamics of American Citizenship (New York: Oxford University Press, 2018)Google Scholar; Thurston, Chloe N., At the Boundaries of Homeownership: Credit, Discrimination, and the American State (New York: Cambridge University Press, 2018)CrossRefGoogle Scholar; Tani, Karen M., States of Dependency: Welfare, Rights, and American Governance, 1935–1972 (New York: Cambridge University Press, 2016)CrossRefGoogle Scholar; Frymer, Paul, Black and Blue: African Americans, the Labor Movement, and the Decline of the Democratic Party (Princeton, NJ: Princeton University Press, 2007)Google Scholar.

197 Berkowitz, Edward D., “A Historical Preface to the Americans with Disabilities Act,” Journal of Policy History 6, no. 1 (1994): 96–119CrossRefGoogle Scholar; Erkulwater, Jennifer L., Disability Rights and the American Social Safety Net (Ithaca, NY: Cornell University Press, 2006)CrossRefGoogle Scholar; Howard, The Welfare State Nobody Knows, ch. 4; Burke, Thomas F. and Barnes, Jeb, “Layering, Kludgeocracy and Disability Rights: The Limited Influence of the Social Model in American Disability Policy,” Social Policy and Society 17, no. 1 (2017): 1–16Google Scholar.

198 This case study offers some initial suggestions. One possible advantage is that the civil rights policy regime offered advocates of social policy expansion new resources during a period of social policy retrenchment when creating new social insurance programs was difficult. One possible limitation is that the civil rights policy regime does not offer a bridge to redistributive policy design, since making an antidiscrimination claim generally requires pointing to some group that is already receiving a benefit in order to claim that benefit for another group. As such, the logic is not easily applied to the creation of comprehensive redistributive programs. One possible downstream consequence is that a civil rights approach to social policy expansion reinforces the public-private welfare state, where many social protections are delegated to private actors or rely on market mechanisms. Since the enforcement mechanisms of the civil rights policy regime generally involve the use of regulatory authority, it is more readily used to affect the behavior of private actors than to create complex public programs.

199 Hamilton, Dona Cooper and Hamilton, Charles V., The Dual Agenda: Race and Social Welfare Policies of Civil Rights Organizations (New York: Columbia University Press, 1997)Google Scholar.

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