DOCUMENT RESUME

ED 320 652 PS 017 848

AUTHOR Radigan, Anne L. TITLE Concept & Compromise: The Evolution of Family Leave Legislation in the U.S. Congress. INSTITUTION Women's Research & Education Inst., Washington, DC. SPONS AGENCY Ford Foundation, New York, N.Y.; Rockefeller Foundation, New York, N.Y. PUB DATE 88 NOTE 31p. AVAILABLE FROMWomen's Research & Education Institute, 1700 18th Street, N.W., Suite 40C, Washington, DC 20009 ($5.00). PUB TYPE Reports - Descriptive (141) -- Historical Materials (060)

EDRS PRICE MF01/PCO2 Plus Postage. DESCRIPTORS *Federal Legislation; *Fringe Benefits; *Political Issues; Politics; *Social Action; *Social Problems; State Legislation IDENTIFIERS California; *Family Leave; Legislative History; Medical Leave; *Parental Leave; Proposed Legislation

ABSTRACT In an examination of the dynamics that mold a bill and keep it before the attention of the national legislature, this paper traces the behind-the-scenes history of the Family and Medical Leave Act (FMLA), H.R. 925, from its origin as a benefit solely for pregnant women workers to its current status as a broad remedy for the stresses of modern family life. In the space of only 4 years, the parental leave issue has captured serious public attention, building momentum to keep it squarely before the nation's policymakers. How has this happened? Why has a bill drafted by a half-dozen Washington feminists become the central item on the agendas of more than 70 organizations representing millions of Americans nationwide? This paper looks at these questions and ultimately credits: (1) changes in the roles of women and in the characteristics of U.S. families; and (2) legislators' willingness to acknowledge the current realities of American family life. Concluding remarks assert that there are powerful arguments for the federal response embodied in the FMLA, particularly in its establishment of a minimum labor standard. The guarantee of job reinstatement, at the minimum, represents a floor beneath which benefits should not fall. It is the most basic of workplace entitlements and deserves to be a nationwide standard for all employers. (RH)

*********************************************************************** * Reproductions supplied by EDRS are the best that can be made * * from the original document. * ********************************************************************** U.S. DEPARTMENT OF EDUCATION Once of Educational Research and Improvement EDUCATIONAL RESOURCES INFORMATION1 CENTER (ERIC) Nms document has been reproducel as ecmved from the person or orpandatron orronahng rt 0 Moor changes have been made to Improve reproductron duaIrtY

Pants& new or oporronsStatedulthadocu- meet do not necessarily represent othc..1 OERI pombon or pohcy

"PERMISSION TO REPRODUCE THIS MATERIAL HAS BEEN GRANTED BY &ro.. E. RIx

TO THE EDUCATIONAL RESOURCES INFORMATION CENTER (ERIC)."

C

BEST COPY AVAILABLE Congress The Evolution of FamilyLeave Legislation in the U.S. Concept and Compromise: published by .the fifth in a series of papers onwomen and work by Anne L. Radigan is (WREI). The series includesWork and the Women's Researchand Education Institute Job Perspective on Basic TrendsAffecting Women's Jobs and Women in the 1980s: A occupational segregation Opportunities by Ray Marshall;Gender at Work, with articles on comparable worth by RonnieSteinberg and Lois Haignere; by Barbara Reskin and on Employment by Cynthia B. Costello. Older Women at Work by LoisShaw; and Home-Based of this and two additional WREI is grateful to theRockefeller Foundation for its support planned for this series, and tothe Ford Foundation for its publications on family leave dissemination efforts on policy issues ongoing support of WREI'sresearch coordination and of importance to women. reflect the herein are those of theauthor and do not necessarily The views expressed the Ford Foundation. opinions of WREI, theRockefeller Foundation, or

WREI Board of Directors Jean Stapleton President J. Michael Brown Esther Coopersmith Sharon Pratt Dixon Evelyn Dubrow Dorothy Gregg Margaret M. Heckler Dorothy Height Matina Homer Juanita Kreps Helen Stevenson Meyner Donald V. Seibert Paquita Vivo

WREI Executive Director Betty Parsons Dooley

3

21 Concept & Compromise

The Evolution of Family Leave Legislation in the U.S. Congress

by Anne L. Radigan

A publication of

Women's Research & Education Institute 1988

4 © Women's Research & Education Institute 1700 18th Street, N.W., Suite 400 Washington, D.C. 20009 ii Tafrie of Con 3

Introduc:ion 1 Craft, Coalition, and Compromise 1 The Family and Medical Leave Act (H.R. 925) 2 A Bill Is Conceived 5 A California Statute in Question 5 The Dual Burden 7 Special Versus Equal Treatment 8 Universal Disability Leave and Parental Leave 9 An Outline Is Circulated 10 The Original Congressional Sponsors Bow Out 12 The Dean of Congresswomen Steps In 13

A Bill Is Introduced 15 The Luck of Timing 15 Back to the Drawing Board 16 The Issue Catches Fire 19 The Revision Is Introduced, The Opposition Is Organized 20 The Battle is Joined 21 Compromise and The Family Theme 21 The Drive to the F iish Line 23 The Pendulum Swings Back, New Themes Are Voiced 23 Bicameral Action 24 Yet Another Compromise 24 Conclusion 27 References.. ... 29

6 Ill Intro"lotion

The U.S. Congress may act this year on wide? This paper looks at these questions the Family and Medical Leave Act (H.R. and ultimately credits the changes in the 925). If this legislation becomes law, thou- roles of %wineu and in the characteristics sands of American employers, including of U.S. families, and legislators' willing- the federal government, would be required ness to acknowledge the realities of Amer- to provide job-protected, although unpaid, ican family life today. leaves of absence to employees who need time off to care far their new-born, newly Craft, Coalition, and adopted, or seriously ill children, for se- Compromise riously ill elderly parents, or for their own There are certain intangible factors that serious medical conditions. II.R. 925 would have been purposefully nurtured to pro- also require these employers to continue mote the Family and Medical Leave Act. the leave-taking employees' medical in- To begin with, should H.R. 925 be en- surance coverage. acted, it will owe a great deal of its success This paper examines the history of this to the new prominence of family issues on legislation, from its origin as a benefit solely the agendas of policymakers across the for pregnant women workers to its current political spectrum. Family issues have al- status as a broad remedy for the stresses ways been hot property for political can- of modern family life. didates, but perhaps never more so than In the space of only fun years, the pa- in this election year. In the past decade rental leave issue has captured serious pub- or so, especially, conservatives set the terms lic attention, building momentum to keep of the "family- policy" debate, defining it squarely before the nation's policymak- family concerns as school prayer, oppo- ers. How has this happened? Why has a sition to abortion, and the preservation of bill drafted by a half-dozen Washington "traditional values.- Now liberals have feminists become the central item on the seized the family theme, citing day care, agendas of more than 70 organizations rep- access to health insurance, and parental resenting millions of Americans nation- leave as key items on the family agenda. All the presidential candidates have ad- Anne L. Radigan, who is currently employed dressed family issues. "The family," what- by the New Bedford (MA) Standard Times, ever its political meaning, seems to evoke was appointed director of the Congressional a responsive chord throughout the Caucus for Women's Issues in 1984 and served electorate. inthatcapacitythrough the 99th Congress. The popularity of issues defined as fam- She is aPhi Beta Kappa graduateof the ily issues inspired feminist organizations to University of Connecticut,where sheearned recast many of their own agenda items in her bachelor's degree in English literature. the broader family context. Parental leave is probably the premier feminist concern The author wishes to thank Donna Lenhoff packaged as a family issue, and so far the and Sherry Cassidy for their helpful com- tactic appears effective with legislators. H.R. ments on earlier drafts of this paper. Need- 925 has twice cleared four subcommittees less to say, they are not responsible for any and two full committees in the House of errors or oversights. Representatives, while a companion mea-

1 7 sere in the Senate has generated serious point out, the underlying principle of min- interest in field hearings across the country. imum job protection remains unaltered, The key to parental leave's remarkable providing a foundation of security for fam- progress in a few short years is nut, how- ilies that can be built upon in the future. ever, simply the bill's appeal to working parents with young children. While such The Family and Medical Leave families are the central beneficiaries of ll.R. Act (H.R. 925) 925, a number of other constituencies stand The contours of the bill that awaits ac- to benefit as well. In truth, the Family and tion by the full House of Representatives Medical Leave Act would serve the inter- as of June 1988 are as follows: ests :rat only of working mothers, but of the handicapped and the elderly. The diverse It applies to all employers with 50 appeal of the legislation elicits support from or more employees for the first three a broad range of organizations and individ- years after it is enacted; thereafter, uals, from the National Organization for it will apply to all employers with Women to the United Mine Workers and 35 or more workers. the U.S. Catholic Conference. It entitles eligible employeesde- Labor union support of the parental leave fined as those who have at least one bill is widespread, for H.R. 925 breaks year on the job and work at least 20 new ground in labor law, providing a min- hours a weekto up to 10 weeks of imum leave standard that supporters say is family leave over a two-year period gravely needed. Women are increasing their in order to care for a new-born, newly number and proportion in the workforce and adopted, or seriously ill child, or organized labor has responded by promot- seriously ill parent. ing initiatives that help employees balance It allows eligible employees to take the demands of family and work. up to 15 weeks of leave for the care Still, its packaging, broad supporting co- and treatment of their own serious alition, and responsive labor policy are not health problems, as certified by a entirely responsible for the progress of the physician. Family and Medical Leave Act. Most, if It permits employers to deny leave not all, bills are scaled back to enhance to high-salary workersdefined as their chances of winning the support of a those whose salaries place them in majority of lawmakers, and the family leave the top ten percent of the employer's measure before the House of Representa- salaried workersif these employ- tives is the product of extensive compro- ees' absence would cause "grievous" mise. H.R. 925 is an instructive example economic hardship to the employer's of Congress's preference for a cautious ap- enterprise. proach to change. The provisions of the It does not require that employers original parental leave proposal were con- pay leave-taking employees during siderably more sweeping than those of the their absences, but it does require version awaiting House action. The original employers to guarantee the employ- bill, discussed in detail below, would have ees jobs and to continue their health covered all employers except those with insurance coverage (if the employer fewer than five employees and thus would provides that benefit to employees) have guaranteed leaves of absence for most during the leave period. American workers. In its present form, The Family and Medical Leave Act is however, H.R. 925 would cover fewer than modest by the standards of parental leave half of all workers when it is fully phased policies in many countries, especially those in to apply to employers with 35 or more that require that leave- taking employees employees. The number of weeks of leave be paid, but it rep. esents a major step in required to be offered have also been re- family and labor policy in the United State. duced. Nevertheless, proponents of the bill H.R. 925's broad coalition may applaud 2 8 the step, but many businesses are fiercely Therefore, members of Congress, who opposed to it. Rather than lies% ing the bill are under intens, lobbying both sides as providing a reasonable and necessary on the face au eitlienrol proposition. minimum labor standard, the U.S. Cham- Further compromise on II.R. 925 may be ber of Commerce, particular, sees it as impossible. A prim.iple is at stake, both an unwarranted gm ernment-mandated for the Chamber of Commerce, which re- benefit that threatens the freedom and jek is federally mandated benefits, and fin competitive edge of the Americanmar - the measure's supporters, who have pared ketpla,The position of the Chamber ap- the bill's provisions to the bone. Legislators pears to be quite firm: federal authority must decide whether they are for or against to determine employe:: benefits, in prin- the Family and Mescal Leave Act as it ciple and in practice, is wholly unac- now stands. ceptable. Leave policies must, says the It is instructis e to look back at how this Chamber, be left to individual employers, situation developed. What follows Is a be- many of whom are already establishing hind-the-scenes history of the Family and such programs in order to retain their Medical Leave Act. skilled workforce.

9 3 A Mill ifs Coraeeived

A California Statute in Question ployment rights under the PDA. Moreover, The issue of a national parental leavt about 22 percent of Ow ntniguvernment policy in the United Stales first arose in workforce is employed by businesses with the 1920s, when he International Ulm fewer than 13 winker:, (Bureau of National Organization (ILO) met 'nd recom- Affairs. 1987. 12). In other words. an ab- mended that member nations enact mater- solute right fin pregnant VlWell to take nity leave laws. The current leave Isolicits maternity leave was Ill/I CBI 01111/41SSed by of most European countries took root from that legislation. the ILO conference, but it was nut until Even if the federal government made nu 1978 that American policy makers began pronoun, ent;rit in this area. however, the to come to terms with the issue of preg- states were free to at 1 and several did. In nancy and the workplace. Before that time, 1978. as the PDA was enacted. the Cali- women workers who became pregnant were fornia assembly passed inn amendment to frequently fired ur reassigned to less visi- the state'. Fair Employment and Housing bleand less rennmerati v ejobs. If af- Act adding to the state's existing disability forded a lease of absence, new mother:, program a 1,1mi:quit that entitled women ready to return to the workplace miglit dis- workers in the state to an unpaid, four- cover that their jobs were no longer in ad- month pregnant) disability leave v%ith jub able. Fringe benefits, such as insurance reinstatement. Um hanged were the xist- coverage, provided to other worisers un leave :fig provisions with lesl,et 1 to oilier tem- with temporary disabilities were not rou- puratily disabled employees, lot %%hum the tinely provided lo pregnant employees who statute pro% aim! wage replan emelt( hint no took leave. Congre.,s corrected this injus- job guarantees and nu nluliulum leave - tice by enacting the Pregnancy Discrimi- lengths. nation Act (PDA) of 1978. The statute was challenged by California The PDA is an amendment to Title VII Federal Savings and Loan (Cal. Fed.) after of the Civ il Rights Act of 1964, width jut- the bank was cited for refusing to reinstate laws employ merit discrimination on tItc all C1111/10)ce, 1.111kal Garland. follow mug her basis of race, t olor, religion, national ori- state-sanctioned maternity leave. gin, of sea. As amended by the PDA. Title Arnia Federa. l C...autng., and Luaut.Guerra, VII stipulates that "women affected by Cal. Fed. argued that the law allowed a pregnancy, childbirth, or related medical special bleak fin ',regnant vutnn amount- conditions shall be treated the sank for all ing to discrimination against Melt. This employment-related purposes. . as other preferential poll % y, sand the bald., Violated persons not so affected but similar in their the MM. On February 9, 1984, the U.S. ability lo work " District Coors for the Central District of This anti 'iseriminaiion remedy was a California ruled on the t ase and agreed with major vicl .iry for working women. Yet it the bank, stating. "California employers who applies only to employers who offer fringe t uniply %%itli state law alt subject to reverse benefits to disabled workers, and only if discrimination suits under fide VII [of the the employer has 15 or more employees. Civil Rights Act] bj.emporarily disabled Thus, women employed by businesses that males cho du not receive the Sallie treat- do not offer fringe benefits to disabled Mehl as Renate employees disabled by workers are riot entitled to leave and reem- pregnancy." o The district court's decision sent shuck California state legislature decided to act WaN.CS throughCalifornia's feministtAMI- the federal le el against the court's nil- munity. An appeal mas prepared. At the mg. Ilmsard Berman (1)-CA decided to same time, the U.S. Congrtssinan had set ! a 11,1litillSitle pork) to protect the juts authored the California prcbliant y disabil- of tsufking SugliCIA ItAllpul,1111 (11:411,1t-ti by ity statute when he mas a member of the pregnancy and childbirth.

Figure 1. Civilian Labor Force Participation Rates for Women Age 16 and Over, Selected Years, 1940-87

Percent 100

56.0 54.5

46.3 43.3 39.3 37.73 35.7 33.9

1940' 19501955 19601965 1970 19751980 1985 1987 Year

' Includes women cue 14 and ovc

Source. Bureau of the Censu... 1947, Table 1, Bureau of Labor Statistics. 1985, Table 5. January 1986. Table 39; and January 1988, Table 2. 6 f1 pregnant, their employer's maternity poli- The Dual Burden cies may be an unpleasant surprise. The The need for such protection has been size of the establishment in which they work amply demonstrated. More women than is a key factor. Studies done in the late ever be core Nee in the paid work force (Fig- 1970s found that the vast inhjority of firms ure 1), more than doubling their numbers %%Rh 100 or inure employees provided dis- in a single generation. Career fulfillment ability leave for pregnant Women andguar- is certainly a motivating factor, but the anteed their jobs upon return (Kamennim majority of women also work for economic et al., 1983). These findings were borne reasons. The two-paycheck family is the out by a recent study conducted by the norm among married couples. National Council of Jewish Women (NCJW) The number of mothers working outside which concluded that "theprovision of eight the home is four times greater than in 1950. or inure weeks of job-protected medical leave Today. 60 percent of women with children for maternity is now the norm in the Amer- between three and five years oldare in the ican workplace" (13ond, 1987: .395). How- labor force. Most dramatic has been the ever. according to the NCJW, firms pro- increase in the number of working mothers siding paid maternity leave arein the of young children (Table 1). Increasingly, minority. 36 percent of employers with 20 women are returning to work soon after the or more employees, and 11 percent of em- birth of a child: almost one-half of all moth- ployers with fewer than 20 employees. ers of children under the age of one are Somewhat more one-third of the establish- working outside the home (U.S. Bureau of ments survey ed by the NCJW allowed sonic the Census, 1986). These women represent job-protected family leave in addition to the fastest growing segment of the U.S. eight or more weeks of medical maternity workforce. leave; four weeks was the amount of family Approximately 75 percent of women in lease most frequently offered. flowerer, only the labor force are in their child-bearing 12 percent of employers with fewer than 20 years. For the majority of those who become workers (compared to 71 percent of those

Table 1. Labor Force and Employment Experience ofWomen with Young Children, March 1986 (in percentages) With Children With Children Family Type Under Age 3 Under Age 6 All women with children Working full-time 29/ 33.3 Working part-time 15.1 44'8 15.1)48.4

Unemployed 5.9 6.0 Not in labor force 49.2 45.6 Married, husband present Working full-time 33.2 Working part-time 307 }47.0 49'7 16.3 16.5} Unemployed 3.9 4.1 Not in labor force 49.1 46.2 Other ever married'

Working full-time 42'9 Working part-time 33'1 I46 0 }55.2 12.9 12.3 Unemployed 11.5 9.5 Not in labor force 42.6 35.4 ' Includes widowed. divorced, and married with an absentspouse.

Source: Bureau of Labor Statistics, unpublished data. 7 12 with more than 20 workers) set the con- iereasingly indispett,able to the work- ditions of leaves by a standard policy. The force, employers whose businesses depend absence of such standards, at. Lording to the heat ily on female produetiv itt are unlikely NCJW, "introduces uncertainty and places to diserainate agaast women employees sonic workers at considerable risk" (Bond, ',manse of a aterditS lease preference. 1987: 394). This was an argument over means, not The only federal standard with respect ends. the Lunation goal was workplace eq- to maternity and parental leaves is the Preg- uity. Nevertheless. the Issue evoked strung nancy Discrimination Act. And, as dis- feelings on bath sides, and they naturally cussed earlier, this law does not require split over the federal district court's Cal. employers to provide benefits, only to be Fed. decision. West Coast feminists were even-handed about administering those determined to appeal the ruling and win benefits they do provide. reinstatement of the maternity leave law; at the same time, Rep. Berman began to Special Versus Equal Treatment draft federal legislation that would codify The news that a member of the LS. the California measure as a national policy. Congress wanted to corree thissituation Equal treatment proponents welcomed by implementing the California statute at the idea of pushing beyond the eunfines of the national level might have been ex- the Pregnancy Diserimination Act, but they pected to prompt jubilation. Instead,it opposed reintrudueing the theme of women received a mixed reaction, of both interest as special men.'oers of the wurkfuree. Such and alarm, from feminist attorneys in the a WO% e, they feared, would spark a renewal nation's capital. of the debate about "women's place" in Why should this news cause alarm? The society. In the hands of ambivalent legis- reason is that many feminists were quietly lators, this (Amid be extremely dangerous. in partial agreement with the district court's The political climate in Washington in decision in the Cal. Fed, case. They viewed the mid 1980s was decidedly eunservative. the maternity lease statute as a well meaning The Reagan administration's platform of but nonetheless "protective" measure at odds antifederalis and "traditional values" made with the principle of equal treatment of male a strong impress; _n on many puheymakers. and female workers. Women's rights proponents were put on the Historically, protective labor laws lim- defensive, finding themselves has ing once ited the hours and kinds of jobs that women again to justify lung-accepted theories of could work in order to ensure healthy child- equal rights under the law. A phalanx of bearing. The results of these protections legislators remained eunanitted to the fe- can still be felt today in employment dis- inist agenda, but the general sentiment of erimination, occupational segregation, and Congress was one of cautious moderation. the differential between and isunicri's the narrower and more ereumseribed the wages. Those favoring the equal treatment womens issue, the better Its chances for model believed that any workplace pref- consideration. erences made solely for pregnant women, If a federal bill were introduced along no matter how noble their intent, %souk' the Imes of the Califuniia statutethat is, inevitably lead to workplace diserialination confined to providing special treatment for against women. pregnant workershow, in the prevailing West Coast aetivists and their allies who political atmosphere, could equal treatment .upperted the California maternity law proponents ever change the oquis of the countered that since women alum hear debate? These aetivists recognized that the children they are at an indisputable dis- majority in Congress was likely to be in- advantage eumpared to working men and different to the subtleties of feminist legal reqaire an edge to help them remain com- thought. II altta a narrowly dawn propoal petitive in the workplace. The law's sup- on maternity lease, legislators would be apt porters also argued that since women are to close their minds to larger issues. This 813 was precisely what the V'ashington-based 'Mese influential member, of the feminists wished to af.ad, fur the% had House, ali Democrats, included Rep. George identified a means ul ternity chairman of the Select Committee leav e policy within the equal anent oil Children, Youth and Families, and Rep. theory. Barbara Boxer, an outspoken former San Francisco city commissioner. Rep. Ber- man's close friend and ally. Rep. Henry Universal Disability Leave and Waxman. could also be counted on to play Parental Leave a role in shaping policy. All wished to re- The way to provide job protection fur spond to the judicial invalidation of the pregnant women without setting them apart Califuniia state law while also addressing from the rest of the workforce was to extend a broader Lumen, about fathers' roles in job protection to all temporarily disabled nurturing healthy families. They conceived workers. Women could not then be singled a proposal to provide both parents with job- out as requiring special treatment and run guaranteed leaves of absence upon the birth the risk of appearing burdensome to em- or adoption of a child, with an additional ployers. To add a contemporary spin to the pro% ision that the parental leave could be- issue, Washington feminists expanded this gin fur women before the baby arrived to concept to another level: both mothers and cover any disability arising from the fathers would be entitled to leaves to care pregnancy. for their newbornsgiv ing time to bond Combining the disability and child care with and nurture their infants. With this concepts was intended to address both the provision, the equal treatment model would narrow issue of maternity disability and the cross over from the minor's agenda to the larger concern of responsible parenting. The family agenda. legislators reasoned that by opening the Feminist lobbyists had been trying, in leave-taking entitlement to fathers, the pro- recent years, to make the case that wom- posal av aided the appearance of,' -women's en's concerns were family concerns. in this concern" and appealed to a broader wider context, policies to enhance wom- constituency. en's economic and societal status would The news of the California legislators' be viewed as enhancing the family unit. initiative was greeted with chagrin by the "The family" is sacred to policy makers., handful of feminist attorneys and organi- but the "pro-family" banner had, fur some zation representatives who had formed time, been appropriated by the far right. themselves into a Luinrnitl.:e to draft a the- Now, in parental leave, there appeared an oretically sound disability and parental leave issue that, although conceived as a wom- bill fit Congressional consideration. The en's rights measure. had a direct family core drafting committee included Wendy orientation that might attract conservative Williams and Susan Deller Russ of George- interest while at the same time drawing town University Law School, Donna Len- the pro-family label back to the political huff of the Women's Legal Defense Fund center. Here was an opportunity to weld veterans of the fight fur the PDAand Sherry women's and family concerns into a new Cassidy of the Congitssional Caucus fur concept for Congress. Women's Issues. This core group was fre- As the Washington based feminist lob- quently augmented by sutii individuals as byists were developing their concept, in- Sally On of the Association ofiunior Leagues terest in doing something about parental and Betty Jean Hall of the Coal Employ- leave was rising on Capitol Hill, in partic- ment Project. Wien Blank dale Children's ular among a number of other members of Defense Fund contributed her expertise to the California congressional delegation, they the early undertaking, as well. alerted their colleague Rep. Berman to their The drafting Lutnnitttee decided that the concern about the Cal. Fed ruling, and parental leave t uncept could nut be stretched their interest in a federal job-protected leave to encompass maternity leave (which is es- 9 1 4 sentially a form of liability leave) without among its on California constituents. running into the special treatment trap. since Su. even as flit drafting committee's out-

only women would iable to1 claim a Keg line was being delivered to the California Haney -related medical problem. All the representatives, the committee set out to same, the drafting t ummittee members' enlist a wider range of organizational in- commitment tu the equal treatment ap- terest in its proposal. Brought ui at this proach to polit }making did nut Jim their stage were traditional tvonitm's gum's, such appreciation of the sensitive situation that as the American Association of University now arose; they would have to alert the Women. inure specialized associations like parental:Maternity leave bill spunburb in- the Pension Rights Center. and several la- fluential members of Cungtess with whom bor organizations. including the United Auto the committee shared respect and admi Workers, the Serviee Employees interna- rationthat their proposed legislation was tional Union, the Cumnionications Workers unacceptable, and that the only tolerable of America, and the International Ladies initiative was one that dibtinguislied dis- Garment Workers' Union. The drafting ability leave front parerr.ing leave while en- committee's btrattgr was to involve these suring both for everybody. groups in fleshing out its outline for pa- With man, assurances of good will. the rental and disability leave. and thereby es- drafting committee gingerly conveyed its tablish a coalition invested in the proposal. reservations. The Represent .1i% es It This is an important element in developing sponded graciously. "Show us real commitment to a measure, while bar- they said. Little did they know that the :Ulth lobbying groups may unite in support current carrying the parental leave propo- of a particular proposal, their degree of sition was about to shrift from Capitol Hill commitment to itand its priority on their to the outside organizations. The nascent agendasmay vary. The inclusive ap- proposal escaped the hands of legislators proach adopted by the drafting committee and was nut to return fur quite some time. promised the participating organizations a hand in developing the proposal in return An Outline Is Circulated for their conunitment to work actively for The leave proposal outlined by the the bill's advancement. drafting committee fur curibidera..on by This initial coalition-I. Jading strategy was the members of Congress had a wide reach. risky. Hopeless decentralization, his of no employer exc.-mm*1.mb from the pro- control, aimlessness any of these prob- posed policy were env:biuned, it was meant lems could ha% t beset such au undertaking. to provide for all workers who may expe- The mission of the committee. after all, was rience a disabling, medical condition, need to put both a bill and a coalition together time to estal,:ish family cohesion with a in fairly short order. Fortunately, the (-lose new baby, or administer to a gravely ill personal and professional associations among child. The outline tlitl not call tat em- the organizational reprentatives, and their ployers to pay wages to workers on leave, common goals, protected against break- but did require pre- existing health in- downs. Possibly because at this early point surance benefits to he continued. in the history of parental leave legislation, The drafting committee members rec- the issue was not generally viewed as one ognized that theirs %Va.:, a considerably likely tu move through Congress in the near grander idea than the unc their congres- tut even distant) future, no competition arose sional allies had in mind. Mort UVCI, it was among the various groups for control over plain that a half-dozen or so Washington the measure. The women who had consti- lawyer-lobbyists, no matter their extraor- tuted the curt drafting committee continued dinary commitment and expertise on the tu UYtISCU all matters, determining, agen- PDA, had little weight with which to sway das, calling the countless meetings, and a congressional delegation amply sup- following up on all issues related to the ported in its point of view by the feminists proposal taking shape. Not surprisingly. this coalition- building ily intended for > alusion 111 the bill, but strategy did make decision-making, Lunt- to ensure that the . umniittee ptis.essed ex- bersome. Each detail of the proposaland pertise in the subjet t area. there turned out to be scoreswas sub- To the members of Congress who had jected to the democratic process. This ap- reeelsed the drafting t...almittee"s original proach was laborious anti time-consuming bill outlinethese efforts must have ap- (a major frustration to some participant. as peared futile. Rep. Berman had already the proposal developed). but it did allow sent his copy of the outline to the House's difficult issues to be aired and debated by legislative counsel's office' and a hill. in- the various organizations. tegrated with the Congressman's original For instance, while there was little this- parental - maternity leave concept. was ready sent on the need to initiate a least bill that to be dropped in the hopper. Neither Rep. provided for both disability and parental Berman o.,r any of his colleagues wished leave but treated them as separate con- to introduce a measure that encompassed cepts, and very little discord over the amount uhisersal disability leave. In their view. of leave time that should be made avail- this was not germane to the matter of child- ablesix months for disability leave. four birth and child care. months for parental leavethe matter of The coalition was stunned by the legis- not requiring paid leaves of absence was a lat.rs- rejection of its approach. The leg- source of serious disagreement. Low-in- islators explained their position. It was nut come workers would be very unlikely to that they rejected the equal treatment the- exercise a right to take a leave without pay. ory. it was that the equal treatment theory. The core of any social policy regarding lea%es in the fume of the bill developed by the for disability or parenting, it__ was pointed drafting committee, was MULL h u broad to out, must be some wage replacement mech- attract serious attention. Rep. Berman felt anism, so that persons at every level of the certain that Congress might move 1.41 a leave workforce could participate. bill, but not on the version proposed by the Admittedly, the drafting committee had drafting committee. experienced its own deep conflict over this Representatives of the coalition met sev- issue, but ultimately concluded that a bill eral times with the lawmakers to debate requiring employers to pay their absent this assertion. The members of Congress, workers would be viewed by most legisla- reminding the coalition that they'd been tors as much too extreme. The principle of around the legislative block before, re- the matter, :h. eur.anittee made clear, was mained behind their own approach to the the entitlenualt of a basic right to take a leave legislatiuu. Coalition representatives, leave wilier. special dr. Lutist_ant s de- who attempted to dramatize the breadth of manded without losing one's job. If wage support fur their approach by appearing en replacement had to be forfeited, at least the masse at the conference table, were equally proposal would apply to all businesses. large steadfast. Nu doubt the amount of work they and small. had already expended in developing their The intensive work of the drafting com- proposal was a factor. but more important mittee took on a life of its own. It dealt with was 11-.!. principle at stake. the broad issues as intently as it explored If the groups in the coalition had any the intricacies of labor law, federally and leverage, it was the growing excitement over privately sponsored t.inpluy cc benefits, col- the politic al phenomenon known as the gen- lective bargaining agreements, and all tither tle! gap. This was 1984, a presidential elec- factors relevant to the devising of a first- tion year, anti the gentler gap inspired poi- of-its-kind national shun-term disability anti his laws of every stripe to du something for parental leave policy. The findings of this exhaustive effort by the committeeall of ' Earl' House of Congress has a separate staff of whose members had other ongoing profes- leap...taint. experts who transform draft proposals sional responsibilitieswere not necessar- Intro the proper hal form for offn mail nanswarun. I I 1 6 the nation's female electorate. The per- to furnish a report on its elnitelliS and ceived clout of the women's organizations purposes for the rest of the [louse. certainly had an impact on the discussion hi must %.ista ithe exceptions invoke bills of the parental leave proposal. But um on- consideted completely nuncuntroversiab, nected, more immediate cunt erns such as before a bill tan Louie before the whole the national elections soon overtook both Mum: fur consideration, it must gu to the the co iition and the legislators, and the Rules Committee, whose function is to de iiscussii ti had to be suspended. tide the circumstances under which the Then it was 1985. Contrary to the pre- measure will be considered by the House dictions of many feminists. the gender gap ful example, how many hours of debate will had noteery wide enough to unseat Pies- be allowed, and whether there will be any ident Reagan. On Capitol Hill. legislators restrictions on amendments offered .rum the reacted negatively to the failure of the Dem- flour of the House. Jnly when the bill has ocratic presidential ticket and its feminist been granted a rule can it be brought before adherents. W:iere only a few weeks earlier the full House for debate and a vote by all politiciars had beaten a path to their doors, the member,. Should the bill then win a now feminist women's groups found them- majority of votes cast in the House. it is selves and thei: agenda held at a cool and referred to the Senate. where a substantially measured distance. Although the California similar process begins all over again. Democrats remained sympathetic, the co- Members of the House of Representa- alition was perceived as politically weak tives typically sit on at least two full com- when it resumed the quest for a parental! mittees and several subcommittees of each. disability leave bill. They spend a great part of their working hours mastering the intricacies of the topics The Original Coligrssional and issues handled by their committees and Sponsor Bow Out subcommittees. House members normally As the 99th Congress began, the Cal- appoint one or two of their own staff persons ifornia members showed signs of hating to assist them in this chore, and they also second thoughts about their earlier re- rely on conimitte and subcommittee staff- jection of the coalition's all-inclusive leave ers. All other subject mattersthat is, th.,se proposal. However, they were now per- outside the members' committee jurtsdic- plexed by other, more practical concerns ifUltart dealt with by members on a catch- that arose from the way Congress oper- as-catch-can basis. Legislative aides han- ates in particular. from the demands and dling noncommittee issues fur members constraints of the committee system. generally are responsible for a staggeringly When a bill is introduced in the House diverse and oft-times inconsequential) pile of Representatives, it is referred to the of subjects. committee and subcommittee with juris- The length of the process and the com- diction over the subject matter of the bill. mittee responsibilities of members of Con- (Many bills get no further, they languish gress inCAO, this. members tend to resist and die with the end of the Congress.) assuming principal authority for issues out- Action on a bill generally begins with at side their cummittee.s. purview. least one subcommittee bearing convened The parental disability lease proposal for the purpose of gathering relevant in- developed by the coalition of women's formation and airing the pros and cons. measure MAN tentatively entitled If there is sufficient interest in the bill the Family Et o itSecurity Actwas among the subcommittee members, the niurt than just a theoretical problem for the panel meets to "mark up," or amend, the interested members of the California bill and then sends it to the full com- congressional delegation. Not one of these mittee, where the foregoing process is typ- members sat on the panels (the Education ically repeated. The full committee's final dim! Labor Committee and the Post Office acts are to vote on the bill and, if it passes, and Civil Service Committee) to which such 12 1 7 a proposal would be referred. The draft bill eminent employees. Federal workers were urged by the coalition was VIA ilaisly wide included in the t oalition's proposal. And, in its math, to advance it %wild require asco -chair of the Congressional Caucus both substantial personal and staff re- for Women's Issues, a legislative service st/1111X: and time. commodities hardly in- organization comprising, more than 100 finite to legislators. House members and a staff that acts as Rep. Berman remained deeply con- liaison with the women's organizations, Rep. cenied about resolving the California di- Schroeder had a !Milt-ill t UllgteSsiUllail lemma left by the court's decision in the which to taunt!' the bill. Cal. Fed. casean appeals court ruling on As it happened. the Colorado Democrat the case was expected at any minuteand had been looking for a popular issue to it must have betu deeply disappothung to ,,new the flagging post election interest him that his initiative in this regard i%ds worneds rights. and the parental leave not wholly embraced by the coalition. idea was a perfect tonic. It crossed over Nevertheless, lit informed the coalition into the "pro-family- domain. which was members that he would not act against their particularly attractive to Rep. Schroeder interests. He gladly promised to cosponsor because it nut only broadened the appeal their proposal and to work for its approval, of a wonitlis initiative but it also stole the but lie could not act as its chief sponsor. thunder of the new right. A savvypoliti- Rep. Berman has been true to his word: elan with a knack for delivering memo- remaining actively behind leave legisla7 rable one-liners, Rep. Schroeder was the Lion. While other legislators went on to tarn ideal pitchwonicin for the parental:dis- considerable attention fur their key spon- ability leave proposal. All in all, Rep. sorship of the Family and Medical Leave Schroeder was perfect for the bill and the Act, it should not be forgotten that the leg- bill was perfect for her. islation ones its conception to Rep. Howard Su, happily for all involved, the work of Berman of California. the drafting committee was to be rewarded after all. In a final flurry of activity, the The Dean of Congresswomen coalition completed its magnum opus. The Steps In proposal delivered to Rep. Schroeder in- The coalition had demonstrated its cluded. four months of unpaid parental leave dominance over the direction of parental upon the birth, adoption, or serious illness leave,. Yet now there was no congressional of a child, with post-leave job reinstate- sponsor fur the tualition's proposal. This ment, six months of unpaid short-term dis- situation prevailed fur perhaps art hour ability leave, with job reinstatement, con- after Rep. Berman announced that lit could tilimilite of pre-existing health insuranee not spol...or tiltbill.It took about that and maintenante of all other pre-leave em- long fur Congresswoman Patricia Schroe- ployee benefits, such as seniority and pen- der to offer her leadership fur the coali- sion accrual, a civil court right of action tion's proposal. against employers who deny leave; and .:s- Rep. Schroeder, the senior woman in tablisliment of a commission to study and the House, is generally regarded as the make reto lllll lendations vd 'thin two years of foremost women's rights attiv ist in Con- thatiMelit with respect to a IldtiVIM Me paid gress. A Harvard-educated lawyer, she is parental and disability leave policy. (This very smart, a quick study, and an inde- provision overeanit most of the remaining fatigable legislator. Furthermore, Rep. discord in the coalition over the unpaid Schroeder chairs the Civil Service Sub- nature of the leaves tailed for by the pro- committee of the House Post Offiee and posal.) All employers involved in interstate Civil Service Committeethe subeurn- commerce were to be covered, as Well as mince with jurisdiction over legislation to allgovernment clatitie from the federal levd provide parental/disability leave for gov- down.

13 1. 8 Key developments in evolution of the Family and Medical Leave Act: September 1978: California statute entitling women workers to four-month job- protected pregnancy disability leave signed into law. October 1978. Congress approves Pregnancy Discrimination Act. August 1983: California Federal Satings and LoanL. Guerra filed, challenging California's pregnancy leave statute. February 1984: U.S. District Court for Central District of California rulesin Cal. Fed. case, finds California pregnancy leave statute violates Title VII. March 1984: Informal committee to draft disability and parental leave legislation has first meeting in Washington, D.C. April 1985: Rep. Schroeder introduces H.R. 2020, Parental and Disability Leave Act, in House of Representatives. April 1985: U.S. Court of Appeals for Ninth Circuitreverses district court's decision in Cal. Fed. case. October 1985: First congressional oversight hearingon H.R. 2020. March 1986: Parental and Medical Leave Act, revised version of H.R. 2020, introduced in House of Representatives as H.R. 4300. April 1986: Parental and Medical Leave Act introduced in Senateas S. 2278. June 1986: House Post Office and Civil Service Committeepasses H.R. 4300. June 1986: House Education and Labor Committee amends andpasses H.R. 4300; now called Family and Medical Leave Act, bill includes leave for care of seriously ill elderly parents. January 1987: S. 249 introduced in Senate. Otherwise identicalto H.ti. 4300 as amended by House Education and Labor Committee in June 1986, Senate bill has no provision for care of ill parents. January 1987: U.S. Supreme Court affirms appellate court decision in Cal. Fed. case: California pregnancy disability leave statute dues not violate Title VII. February 1987: H.R. 925, identical to H.R. 4300as amended by House Ed- ucation and Labor Committee in June 1986, introduced in House. October 1987 73ipartisan compromise on H.R. 925 announced, includesre- duction leave time and higher small-employer exemption. November 1987: House Education and Labor Committeepasses compromise version of H.R. 925. February 1988: House Post Office and Civil Service Committeeapproves, without revision, federal employee section of H.R. 925. June 1988: H.R. 925 awaits consideration by House of Representatives. I

19

14 A ill Is Intronee

On April 4, 1985, the formally titled The Luck of Timing Parental and Disability Leave Act' (PDLA) With a mere 20 cosponsors and a great was introduced in the House of Represen- deal cf groundwork still needed to prepare tatives. The PDLA drew only 20 original for its advancement, the PDLA might have cosponsors, but the list included many been expected to languish. However, the prominent and highly respected legislators. legislation seemed to possess a charmed A few of them were Republicansmaking life from the very beginning. An early the bill arguably bipartisanand, signifi- happy omen was the number it was given cantly for the effort to enlist support for the H.R. 2020. An easily t..nembered bill bill beyond the feminist constituencyRep. number can be enormously helpful in Christopher Smith (R-NJ), one of the fore gaining attention, and sympathetic mem- most anti-abortion spokesmen in the House, bers of Congress would later state that the was among them.' PDLA was as clear-sighted as its number The endorsing organizations were the suggested. American Association of University Women, Then, less than two weeks after the the American Civil Liberties Union, the PDLA was introduced, the U.S Court of Association of Junior Leagues, the Coal Appeals for the Ninth Circuit handed down Employment Project, the National Feder- its decision in the Cal. Fed. case. To the ation of Business and Professional Wom- surprise of many observers, the appellate en's Clubs, the National Organization for court reversed the lower court's ruling and Women, the National Women's Political found the California maternity leave stat- Caucus, the Pension Rights Center, the ute compatible with Title VII. The Ninth Women's Equity Action League, and the Circuit held that the federal Pregnancy Women's Legal Defense Fund. Discrimination Act was intended to pro- Interestingly, the fact that the Parental vide "a floor beneath which pregnancy and Disability Leave Act covered tempo- disability benefits may not dropnot a rary disabilities of all kinds prompted little ceiling above which they may not rise." remark from observers on or off Capitol Rather than provoking more equal-versus- Hill. It is likely that the sheer novelty of special treatment acrimony, the finding the proposal distracted attention from its served to consolidate support for action substantial reach. Certainly true is that the at the federal level. Now, more than ever, measure's proponents dwelt largely on the a national leave policy appeared timely. parental leave component, which was the The backers of H.R. 2020 looked no bill's central and undeniable appeal. further for a press strategy. The North Cir- cuit Court's clear ruling, and Cal. Fed.'s 2 The name of the bill was to change Amu.. inure, immediate appeal to the Supreme Court, but the move away from using "family" in the title made the issue of parental leave eminently of the prototype bill was due to the apprehension of drafters that the measure would be mistaken for newsworthy. Most reporters covering the the property of the far right. issue gave the bill a favorable spin.' The The anti-abortion connection has been made re- peatedly in behalf of parental leave, but it has yet Several reporters who spoke with the author in- to create a really firm attachment among anti-abor- dicated that their personal sympathies were en- tion forces, despite the lobbying effort devoted to gaged, sum; many of diem had infants themselves parental leave by the U.S. Catholic Conferee e. and enjoyed but meager benefits from their own 15 fortunes of the infant legislation soared, had to be booked to accommodate the par- as did the prestige of its sponsor ari en- ticipants. Notable additions to the com- dorsing organizations, who appeared to mittee at this point were the AFL-CIO, the possess remarkable foresight. National Education Association, the Coa- lition of Labor Union Women, the Dis- Back to the Drawing Board ability Rights Education and Defense Fund, As the Ninth Circuit decision raised the National Council of Jewish Women, the the profile of the parental leave issue, two League of Women Voters, the American allies of the women's groups took a second Nurses Association, and the Older Wom- and closer look at H.R. 2020 and quietly en's League. Also, for the first time, staff pronounced it unacceptable. Organized expertsnotably Ellen Battistelli, Fred- labor identified passages in the bill that erick Feinstein, and the late Linda Hiner were vague enough to imperil the seniority from the relevant congressional eumnattees system.° At the same time, disability rights took part. activists took issue with the very use of Remarkably, the inclusive approach used the term disability throughout the bill. earlier by the drafting committee worked They pointed out that H.R. 2020 defined once again. Not only were the bill's prob- di; ability as a total inability to perform a lems mit:I-ebbed successfully, but the car- job, a notion ur disability that the disabled uperativt effort produced real commitment rights advocates had been struggling fur from a larger and inure diverse coalition years to overcome. than before. Any disgruntlement that may And then, congressional committee ex- have lingered among organizations not in- perts pointed out that the free-standing :Amit] in the development of the prototype bill did not dovetail with existing labor bill soon dissulved. It should be noted, law. however, that participation in the drafting The message was clear. the PDLA dearly process did not ensure an organization's appealed to groups beyond the women's or- endorsement of the product, as had oc- ganizations, but its shortcomings were too curred earlier. For sumo groups with many glaring fur their unqualified support. As it levels of bureaucracy dr! AFL-CIO, for stood, H.R. 2020 would not du, alienating exampleendorsement of parental leave the labor and disability-rights communities legislation followed lengthy intraurganiza- was unthinkable. The drafting committee tional debate. wuald have to be reconstituted, a revised The redrafting proceeded smoothly fur bill would have to be introduced. the most part ant' largely unbeknownst to A new round of seemingly endless meet- the congressional sponsors. Coalition mem- ings began. So many more individuals paled bers continued to call for a national parental the drafting eummittee that conference halls and disability leave policy but avoided ask- ing legislators specifically to cosponsor the imperfect H.R. 2020. employers' leave policies. In this connection, an The congressional experts' concern about ironic situation arose in the spring of 1986, when the Department of Labor had to cancel a long- the free-standing nature of H.R. 2020 was planned family pole les seminar Lo-hosted by the solved by Li,, !ding the revision on the ex- private sector Bureau of National Affairs (BNAi. isting Fair Labor Standards Act. Labor's The Newspaper Guild went on strike against 1311.1 problem with the bill's unintended threat and U.S. Labor Secretary William Brock did not want to cross the picket line. Prominent among the to the seniority system was solved with the reasons fur the strike was BMA's refusal to dllov, addition of a single paragraph making clear the issue of parental leave to be brought to the that, in the event of a layoff, leave-takers bargaining table. would not be eligible for their jobs ahead s This particular problem dwelt in the unintended of more senior workers. inference that leave-takers would have an uncon- ditional tight to their jobs, superceding the right Resolving the disability-rights commu- of more senior nonleave-taking employees, m sue h nity's quarrel with the bill was even easier. cases as widespread layoffs. the term "medical lea e" was substituted 2 1_ for "disability leave" throughout H.R. 2020. with fewer than fiv e workersthe same ex- Medical leave more precisely defined the emption that pertains to the Fair Labor matter anyway, since H.R. 2020 construed Standards Act, which established the min- this type of benefit to cover health cndi imum wage and was used as a model for twins ranging from pregnancy- related var- rt.itsing H.R. 2020. tlinder Title VII of the icositie,, to chemotherap`y treatments for Civil Rights Act, of which the Pregnancy cancer patients. Disability Act is a part, the employer ex- Once these problems were disposed of, emption is higherfewer than 15 new issues arose. By mid-1985, the first employees.) negative rumblings about H.R. 2020 began At this point, the coalition felt somewhat to be heard. The bill's coverage of small magnani,nuus about compromising at all. emplo!'zrs was troublesome to sonic legis- After all, there was as yet no organized lators. This was a thorny issue, putting pro- opposition to H.R. 2020's universal em- ponents on the defensive. The "redrafting" ployer coverage. Nevertheless, if It soothed committee (hereafter referred to as the co- congressional concerns to exempt small alition) decided to compromise. By estab- employers from coverage, why not? The lishing their own limits on the bill's cov- prospects fur the revised legislation could erage, proponents hoped not only to reinforce only be strengthened by this modest their control over the terms of the debate concession. now the measure could be but also to signal their responsivenet., to addressed as a pro- family initiative that also concerns about hardships for employers. was sensitive to the needs of small The compromise that the coalition could businesses. agree on was an exemption for employers

.2 2

17 The Issue Catches Fire

There were a few observers of the coa- H.R. 2020 had been referred agreed toa lition's rewriting marathon who wondered joint oversight hearing. These members of what purpose would be served bya fresh Congress and their panels were: William bill if no actual congressional action had ("Bill") Clay (D -M0( and Austin Murphy occurred suggesting the need fora more (D-PA), chairs respectively of the Labor- substantive initiative. The normal legisla- Management Relations Subcommittee and tive process would call fora thorough airing the Labor Standards Subcommittee of the of the legislation before the markup began, Education and Labor Committee, and Pa- but here was a situation where the markup tricia Schroeder and Mary Rose Oakar (D- (albeit unofficial) was already well under- OH), chairs respectively of the Civil Ser- way. Congressional staffers feared that the vice Subcommittee and the Compensation quest to revise was turning into an obses- and Employee Benefits Subcommittee of sion. It was time to act. the Post Office and Civil Service Committee. H.R. 2020 had aroused enough public On October 17, 1985, the four panels enthusiasm by the fall of 1985 to warrant met to conduct the first congressional probe an oversight hearing on the prevalence of into leave policies for employees in Amer- maternity and paternity leaves among ica. The event was enormously successful. American businesses. Since congressional Substantial and eloquent testimony entered oversight hearings explore issues, rather the record, making a strong case fora fed- than specific legislation, such a hearing eral response. With all the skillful orches- was a perfect approach to the matter at tration behind the scenes, the outcomewas hand. The revised bill was not yet ready hardly surprising. for introduction, but its subject was ready Ten witnesses, carefully chosen by Hill for a national forum. Parental leave had all staffers to express impassioned support for the ingredients to make a fine oversight a federal bill from different vantage points, hearing: a well-defined problem, real peo- appeared before the joint panels. It wasan ple ready to r-late how their lives had been artful display that included a self-styled affected by the lack of leave, solid statis- "macho man" from the United Mine Work- tics, many stellar spokespersons, anda ers juxtaposed with a spokeswoman for the simple-sounding solution. Association of Junior Leagues. The homey Parental leave way sufficiently intriguing pediatrician T. Berry Brazelton, who rolled that the chairs of all subcommittees' to which a short film of happy infants bonding with their parents, charmed legislators from both The multiple committee and subcommitte: re- sides of the aisle. The mood was mellow. ferral of H.R. 2020 stemmed from the broad areas of law touched on by the bill. Since it involved It is likely that panel members who har- workers not only in the private and nonfederal gov- bored reservations about a federalresponse ennent sedum but also in the federal gin eminent, to the kart, problem felt that an oversight it was referred to two full committees: the Education and Labor Committee, where it was referred to both the Labor Standanls Subcommittee (because of its it was referred to two of that committee's subcom- similarity to the Fair labor Standards Act) and the mittees, (I) Civil Service and (21 Compensation labor-Management Subcommittee (because of its and Employee Benefits. The current version of the impact on employee benefits and labor law), and bill, H.R. 925, was subject to the same multiple the Post Office and Civil Service Committee, where referral. 19 hearing was a harmless affair and therefore forec iewed 11. R. 1300 as a dangerous not the place to express hostility. It is also pre,. edent. Consequently, the Chamber's probable that, since little public opposition pros ions rd octane c to be seen as the bad had surfaced at this time, nu members were guy by and& king parental lease quickly willing to appear negative. Whatever the evaporated. reason, a few congressional panelists ex- The Chamber hastens d to alert its local pressed sonic careful skepticism but nu un- affiliates around the country that a new control edible opposition. In its first anial mandated-benefits bill was gaining inn outing, the issue of parental lease emerged popularity in Washington. Orellestiated unscathed. by the Chamber, local mom-and-pop shops began flooding Capitol Hill with their The Revision Is Introduced, complaints. They argued, first and fore- The Opposition Is Organized most, that the bill was too costly for em- The momentum &eloped by the suc- ployers. holding jobs open while employ- cessful oversight hearing ',jacd up speed ee:, were on lease would cause small over the next few months. The Supreme employers to founder. They argued that Court agreed to consider the ultimate fate the bill was unneeessary because em- of the California pregnancy lease statute, ployees were taking steps on their own to setting off a new round of press coverage pros ide leaves and job guarantees. They, for thepossibilityof a nationwide parental argued that women them:wises would be lease requirement. Shortly thereafter, the ietims of the bill because. as a practical coalition completed its recisions and the matter, women would be the only em- four congressional subeummittee chairs ployee, to demand the proposal's protec- agreed not only to be the principal spon- tions, tnus making employers reluctant to sors of the new bill but to get it musing hire %yawn. They argued that employers immediately. Most significantly, the pro. would be :need to du ass...)with other pusal found hosts in the Senate. Senators popular employee benefits in order to af- Christopher Dodd (D-CT) and Arlen ford to pros ide the benefits called for by Specter (R-PA). On March 4, 1986, the the legislation. new bill, with a new name, the Parental These were damaging assertions and many and Medical Lease Act, and a nes, number legislators took notice. 11.R. 300's ad- (11.R. 1300) was introdue' House, %mates were Nast!) outmatched 'Li>its op- on April 9, its counterpart, S. 2278, was ponents in time generation of a grass-routs introduced in the Senate. campaign. Because of the largely negative All the positive press euserage and good nature of what Congress was hearing from will toward the legislation finally suc- the lot al level, critics of the Parental and ceeded in arousing the U.S. Chamber of Medical Lease Act charged that the mea- Connnerce, which had been following the sure was an "inside- the -\ ashington- parental leave issue in relative silence. Be Itvv phenumenunan The Chamber it a lung-standing opponent dieamed up by people out of total' with the of most federal intersentiun in the free real needs and concerns of grassroots market. It had, in fact, opposed the PRA America. Although the Chamber of Cum- when that measure was first introduced. niertt was as Lucy as (um bush' than) the The organization bad lately been attempt- coalition at lobbying, moan:is of Congress, ing to hold the line against gucernment- the oiganized opposition to I I.R. 4300 had mandated employee benefits, and there- the appearance of a populist crusade.

24 20 attle is Jjohneall

By the ti:ne the four I louse sub( tonmit- one thing, they argued, employers can re- tees with jurisdiction took up the legisla- dire( I the murk load 01 lure temporary work- tion. parental Ica% e had beeone Olden- ers Imam; of %hum arc actually less costly t ious issue. The Chamber of Conuncrt c etas than permanent staff pertnms) to handle the successful in altering the terms of the de- tasks of absent personnel. And, as it prat.- bate, so that man) legislators began to per- tit al Miller, sine the lease would I e Un- ceive the Y ictims in question as the em- paid, fc n employees mould be able to afford ployers who would be forted by the to take the full amount of leave tune pro- government to pro% hie leave rather than the vided under I 1.R. .1300. employees mho currently lacked protec- All the same. the t ost of parental leave tions. This shift in sy mpathies pertained In a amt. the driving issue. The void:turn not only to some members of Congress but needed badly to reassert Its IlifillenCe With also to administration officials, mho ex- message that defused or utilshuuled the pressed strong opposition to the Parental cost argument. and Medical Leave Act. The potential financial impact tot 5111.111 Compromise and The Family business discomfited even some of I 1.R. Theme 4300's cosponsors. Large companies might By late spring of 1986, support for I1.11. have lilt le problem adapting to the measure; 4300 %vas dividing almost .0plarcly on par- many already offer more generous benefits tisan lines. Although several Republican than those provided by the bill, and a larger members of Congress played an active role workforce more easily enables shifting of on the measure's behalf, those who sat on employees to take up any slack left by leave- the Education and Labor Committee were takers. But the Chamber of Commerce either resistant or openly hostile toit. claimed that small companieswhich in Compromise %vas essential if the bill was recent years have collectively accounted for to attract general support from GOP reg- the greatest number of new jobswould ulars and conservative Democrats. pay some SI3 billion ill employee replace- Working %vitt' Republican as well as ment and ruhnimstrative expenses were I 1.R. Democratic. committee staff, the lead co- 4300 to be enacted. alition representativessuch as the This figure !limed out to be a gross over- Women's Legal Defense Fund, the Asso- estimate of probable costs.' Parental leave ciation of Junior Leagues, the National backers contended that the financial impact Council of Jewish Women, and the A FL- of the legislation would be minimal. For CIOhammered out a painful compro- ndse. Its key elements were raising the Acconling to the General Accounting Office, "in the estimate prepared by the Chamber of (,ono- cap On the small-employer exemption from men the balk of the t ost oas the result of as- five to 15 workers. and capping at 36 weeks suitiptioos math about the workets tlk tota/ amount of allowable leay e time and productivity losses. Tile Chamber's method- (that is, fur family and medicalica..eave I com- ology assumed that 100 percent of workers on Irate bined) an employee could take in a twelve were replaced, a premium wage was paid 08 per- mit higher than the worker on lea% el. and the month period. These were concessions to repla, tumid, Nei. sumo, hal less lautlta lit e than worries about cost. Their, to broaden its the worker replaced" Wainer. 1987. 51. pro-family appeal, the measure mas ex- 21 25 paraded to alloy leaves of absenee to (-arc Republicans critical of the legislation tried for an ill elderly parent as %%ell as a child. to detail the prut cetlings by parliamentary This brought the politically poacriul mane uve is and amendments 1iet% eel as American Association of Retired Persons dilatory by the it Demucratit colleagues. into the coalition and gac the bill a molt: - bolt eel, these amendments nett: merely generational "family" character. delaying tactics, in the course of the time- The strategy succeeded in a inning only consuming debate on them, GOP commu- three Republicans on the &bleat ion and te( members mate it dear thatill line Labor Committee, and their support aas nith the Chamber of Cut:mien. e posit inn grudging at best. Still, two of them acre Ilicy %%mild IRA .1k ceps t///1 %ersiun of a fed- quite influential: Reps. Jim Jeffords (R- erally mandated benefit bill. VT), ranking minority member of the full Time tan out on the 99t1u Congress before conunittee, and Marge Ronkema (R-NJ). the pared-back bill could be brought to the ranking minority member of the Labvr- !louse fluor. It may !oe been just as 1t,e11. Management Relations Subeommittee. It The reception ac eurtled the lull by the Ed- aas Rep. Ruukuna aho asked that the bill ucation and Lbw Committee Indicated that include elder ..are. To balance the addi- the leae ish y aas nut ready for full !home tion of net beneficiaries, huacer, Rep. debate, and the Senate grand taken nu aetiun Roukcma canted to cunt the weeks of al- ah.tsoetca on its eutinterpart bill. The Co- loaable leave-time from 26 to 13 aceks alition and s1 :,ula set their sights un the for medical care, and front 18 to 8 for nett Congress that %wadd convene in 1987, family care. More important, she aanted the y ear marking Congress's bieententlial, to limit the legislation's ',overage to stn and perhaps a you thai %%yuld usher ith a ployers with more than 50 workers a limit Denim-rata_ majunty oil Capitol Hill. that would leave 44 percent of the Amer- ican workforce without the bill's protee- tiuos. This proposal was rejected by the The rust thine and Cii,11.Servsee Conomuee, nu coalition, but Rep. Roulcema remained Contrast to the Education and Labor Committee, appraced lilt. 4300 without dissent. Because the adamant that hers was the only version Post Office Committee sees she &Arral goveniment that could attract a majority in Congress. as a model empluer, kith Denim rats :nutRepub- The coalition's eompromise, mutt entitled lik dim utidie pa net autrAlserally tetepiRe to'ex- the Family and Medical Lease Act, passed perimenting unit innJvatitins all the federal work- the House Edneatiea and Labor Commutee" force. For example, that committee has had little trouble passing abillto require astudyof pay on June 24, 1986, but a chaotic. atmosphere equity in the federal workforce, a propoAal that has ['mailed in the committee room that slay. diet ..utinderable uppusinun m the aline Hume.

26

22 The Drive to the Finish Line The Pendulum Swings Back, a "hook," a way of expressing themselves New Themes Are Voiced so that their listeners got an immediate, With the advent of the 100th Congress, favorable, and indelible impression uf the the Democrats retook control of the Senate issue. Accordingly, the principal sponSurs and kept control of the House. Proponents identified positive ways fur their cautious of the Family and Medical Leave Actwere colleagues to view a bill widely held at arms reinvigorated. When the new Congress Icagth because of its alleged cost. opened for business early in 1987, the Rep. Clay took the holistic approach, sponsors of the Family and Medical Leave calling the bill "preventive medicine," be- Act (FMLA), newly introduced as H.R. 925 cause it "went to the heart of what is causing in the House, and its Senate companion families to struggle." In other words, the bill, S. 249°, came out of theircorners Family and Medical Lea... Act is good for swinging. Other legislative comMitments what ails you. Sen. Dodd unabashedly re- might have kept these members of Con- ferred to the bill as "pro - family." These are gress from giving their all to the FMLAuu messages that Rep. Schrueder terms "warm the past, but the measure was now se- fuzzies" because they give policy makers a curely at the top of their agendas. Both nice warm feeling. Warm fuzzicalone, congressional legislative schedules and the however, can make their spunsurs look weak efforts tithe supporting coalition ensured and impractical. H.R. 925 also needed mure priority fur parental leave. All could see muscular rhetoric, so supporters empha- that the issue was a durable une, despite sized the harder-edged theme uf family leave the Chamber of Conme.trce onslaught, the as a minimum labor standard. Anti-abor- bill was continuing tu receive favorable at- tion legislators supporting the bill even went tention from the press and was picking up so far as to call parental leave a "pro-life" speed at the local level. A number of state measure. legislatures were acting on similar initia- On January 13, 1987, the Supreme Court tives, many mudded directly on H.R. 925. ruled in the Cal. Fed. case and revived Encouraged by the genuine grassruots parental leave as a women's equity issue. support for their measure, the FMLA's By a six tu three margin, the justices upheld sponSurs decided to launch a full-scale ef- the California maternity -!cave statute, fort to enact the bill. holding that Title VII does not pre-empt The first prong of attack was to reassert states from prov iding additional muternity- the reasons fur the bill, tu restate the pop- leave benefits. The California law promotes ular concerns that necessitated a national equal employment opportunity, wrote the leave policy. Members uf Congress needed ccurt, because it "allows women, as well as men, to have families without losing their jobs." ' As introduced on February 3, 1987, 11.11. 925 The high court's decision was a windfall was identical to the compromise passed by the for the supporters of the Family and Med- Education and Labor Committee the previous June. S. 249, which was introduced on January 0, 1987, ical Leave Act. Occurring as it fortuitously differed from H.R. 925 in that it had nu provision, did at the beginning of the new term of allowing leave for the care of a benuusly ill parent. Congress, the rulingand the publicity

23 2 7 arising from itacted like adrenalin on the at least 150 members (some 50 more than bill and its advocates. With its sponsors in H.R. 925 had by lind-1 987) ant ilk its sup- a fighting mood and the issue itself appar- porters ability to deliver a Wail/City Usi the witty once more firmly ensconced on the I louse floor. side of the angels. the FMLA took off. Yet Another Compromise Bicameral Action The House Education and Labor Com- Forthe first time, action on a parental mittee can be at fractious pan el, given to leave measure took place in the Senate as extreme partisanship on soeial legisla- well as the House. It is a ERA that, even tion. A bill that passes the committee among congressional allies, a shared con- along party lines is very likely to fall prey, cern can give way to unbridled and det- on the House floor, to the majority which rimental competition between the t..) Republicans and conservative Democrats chambers. Wisely, the House and Senate constitute. H.R. 925, des:iite its momen- sponsors cEJ auz let this happen. They tum and renewed %Igor, faced this danger. convened hearings almost back-to-back at By October 1987, the sponsors needed times, but used the opportunity to build to get the bill through the Education and un each other's momentum. By October Labor Committee with SWIM Republican 1987, the FMLA had been the subject of members on board ur risk losing the leg- a dozen committee ur subcommittee meet- islation altogether. Reps. Jeffords and ings, including field hearings in Boston, Rouktuna demanded further compromise Los Angeles, Chicago, and Atlanta. in exchange for their support, and other However, while the number of House members of both parties said they needed members cosponsoring the bill climbed sonic cuncessions to business euneerns steadily during these months, several key before they could support the FMLA. Du legislators held back. They were sympa- something, they told the bill's leading thetic to arguments in favor of establishing sponsors, so that we can say that the bill a national lease policy, but could not en- balances the needs of employers and dorse the bill before them. It did not, they employees. felt, respond sufficiently to the concerns The two provisions of H.R. 925 that put raised by small businesses. By this time, some otherwise sympathetic members of the principal sponsors had sensibly referred Congress off were the length of lease time the question of cost to the General Ac- it allowed (26 weeks for medical care. 18 counting Office (GAO), an independent, for family care) and the size of the small - nonpartisan government investigative employer exemption (fewer than 15 em- agency, and the GAO's study was under- ployees). To these members, the numbers $1,1). But Republic .tils slith as Reps. Olym- appeared arbitrary and there was no reason pia Snowe (ME), Nancy, Johnson (CT), not to adjust them to the magic point where Claudine Schneider (RI), as well as Jim they "sounded right." However, the num- Jeffunls and Marge Roukemaall mem- bers were nut in fact arbitrary. they cor- beiS to whom moderates of both parties responded to leave periods in comparable looked for a sense of direction on this is- state programs and small,- mployer exemp- suewanted substantive prow of the FMLA tions in comparable federal Lbw laws. Most sponsors sympathy for the Colit,Lrilb of small important, the numbers determined the employers. proportion of the American workforce that The House Democratic leadership also would be covered by the hill ,mtl the ad- held back from the FMLA. These members equacy of the coverage it afforded. Under- wanted proof, too, but of another kind. They standably, further compromise on these wanted to be certain that the bill would not central points was a heated issue fur the fail and be an embarrassment to the party. coalition. Ev idence of its prospects for success would Nonetheless, flic leading representatives be reflected in the bill's cosponeurship by of the coalition once again met with the 248 House sponsors and Reps. Jeffurds and Accounting Office, 19881. These estimates Roukenta to hammer out an acceptable re- were certainly a great deal less alanising vision of the DILA. Filially agreed upun those uf the Chamber uf Cummerce. ss as a cumpromise ss ith the fulluss ing H.R. 925 truss appeared tu represent a ',A- concessions; fur the first three years after dm. ed pullt,i, wit: that responded butte tu enactment. the bill ssuuld apply tu em- the needs uf ssurking families and tu the plojers uith 50 ur inure employees, and legitimate concerns uf business, especially thereafter to those ss"...b 35 or more: it would small businesses. entitle ssurkers tu 10 seeks uf family lease With the pruminent Republican uumen over a two -year periud and 15 seeks uf uf the Cungressiunal Caucus fur Wumen's medical lease during a single year, it ssuuld IssuesReps. Snusse. Julinsun, and not require ernpluyers tu allu% lease tu em- Schneideron buard, as %s ell as the key ployees %%jilt less than a year uf sersict ur Education and Labor Committee Republi- with less than 20 ssork-huurs per ueek, and cans, Reps. Jeffurds and Roukenia, the it would allow employers to deny lease to FN1LA uas nuts ready fin markup. The cum- employees earning salaries in the tup ten mince met un Nus ember 1., %shell unix salary percentile of the empluyer's ss urk- again the legislatiun met with a hustile re- forte if the absence uf these employees ceptiun from its Republican critics. Tu these pro% ed a financial hardship un the em- members. ssliu were true tu the unswerving ployer. Unchanged sere the uther pros i- pusitiun uf the Chamber uf Cummerce. the sions of the bill, e.g., that employers cub- cuncessiuns meant little. As a matter uf ered by the bill must guarantee lease-taking principle, they uppused federally mandated empluyees' jubs and continue. their health employee benefits. The cumprumise passed insurance coverage. the Education and Labor Committee by a The neu limits un the legislatiun met the suit: uf 21 tu 11. uf the GOP members. unit stipulations uf Rep. Ruuktnia and the uther Reps. Jeffurds and Ruuktma suted in favor moderate Huuse Republicans insulted. The uf H.R. 925, uf the Demucrats, unit' une-- endorsement of the compromise by the pre- Timothy Fenny kNIN)--sutetl against it. viously reluctant Republicans was su sig- On February 3, 1988, the Huuse Pust nificant tu the primary sponsors that they Office and Cis il Sersit e Cummittee ap- held a press conference tu annuunte the prused the Jectiun uf H.R. 925 that et,. ers new bipartisan comprumise. At the same federal empluyteb. Significantly, this cum- time, the Jpunburs annuunceil the findings mittee did nut adopt the lease-time reduc- of a study by the General Accuunting Office tiun embodied in the Educatiun and Labor showing that the cumprumisc ssuuld Cummittee cumprunuse. Shuuld 11.R. 925 cost employers natiums -lilt about $188 as it stands becun, lass. federal Lisa serv- million annually, rising tu $212 million unce ants %s ill be entitled to up tu 18 %seeks uf the bill uas fully phased in (LS. General family leave and 26 ss eeks uf medical lease.

25 2 9 Conclusicim

As this is written, the ,ompromise Fa- on their own to establish lease policies, as ily and Medical Leave Act awaits consid- the Chandler of Commerce contends. Must eration by the whole House. As required sun eys slum that American companies are by the Democratic leadership. the bill has inure likely than they used to be to offer 150 cosponsors. It has the endorsement of maternity and child care leas es, in re- more than 70 organizations. If there is one sponse, to the number of women in the ssurk- sterling measure of the H.R. 925's appeal force and the pressure to retain skilled em- to mainstream America. it is that Ann Lm- ployees. In time. lease polict may. Indeed. ders recently recommended it to her mil- be more common than they are today. even lions of readers. if the FMLA is not enacted. Nevertheless, This paper has attempted to describe the there remain powerful arguments for the dynamics that mold a bill and keep it before federal response embodied ill the FMLA, the attention of the national legislature. A in particular its establishment of a num- great deal of hard work by committed peo- mum hibur standard. The guarantee of job plewithin and without Congressisgen- reinstatement. at the minimum, represents erally involved. although it may appear to a flour beneath which benefits should not the cynical observer that theatrics andma- fall. It is the most basic of workplace en- nipulation are foremost. Certainly, the art titlemeois and deserves to be a natiumside of image-making helps to drise the poli- standard for all employers. cymaking process. But neither hard stork If there is a major ueakness in the leg- nor artistry will be effectis e unless there is islatiou before the House, it is in the num- a demonstrable reed for the legislation. ber of employees whom the bill ssdl not 11 the ease cf the Family and Medical help because their enipluy cr.'s' establish- Leave Act. the dentop-aphics prose the need. ments are exempt from its requirements. Women svith family responsibilities are in Es en the failure of the bill to require paid the workforce 'a stay, and theirand their leases pales before this shortcoming. 1-lim- families'needs are, in many cases, nut ner. if the basic guarantees of 11.R. 925 being met by employers' lease policies. The become lass, legislators are free to revisit American economy is increasingly depen- the issue and mate a more generous statute. dent on female labor and families are iii- In fact. 11.R. 925 calls for a panel to in- creasiligly dependent on women's earnings. sestigate and report back to Congress on These facts are coming to be accepted by nays to implement a paid family and med- legislators of all political stripes.111 the ical lease policy. This is the proverbial consciousness of policy makers, the 1950s "Lamers nose wider the tent.' ssarned against family model is hying replaced by today's by the Chamber of Commerce, but itis true typicalitericall family a family with a that, once the principle of the minimum woman in the workforce. labor standard is established in law, further It is fair to ask whether these demo- refinements can be made. graphic changes will not cause employers

30 27 eferences

Bond. James T. "Medical and Parental Leave Working Women. Neu York. Columbia Benefits Currently Available to Female University- Press, 1983. Workers in the United States.- In The U.S. Bureau of the Census. Current Pop- Family and Medical Leate Act of 1987: ulation Reports, Series P-50. No. 2. Joint Hearings Before the Subcommit- Labor Force Employment and Unem- tee on Labor-Management Relations and ployment in the Z; fitted States. 1940- the Subcommittee on Labor Standards 46. Washington, D.C.: U.S. Depart- of the Conunittee on Education and La- ent of Commerce. 1947. bor. House of Representatives. One Current Population Reports, Hundredth Congres. First Session. Se- Series P-20, No. 406. Fertthty of rial No. 100-20. Washington, D.C.: American If omen: June 1985. Wa.,h- U.S. Government Printing Office. 1987. ington, D.C.: U.S. Government Print- pp. 390-402. ing Office, June 1986. Bureau of National Affairs. Inc. (B: 11. U.S. Bureau of Labor Statistics. Handbook Pregnancy and Employment: The of Labor Statistics 1985. Washington, Complete Handbook on Dist riination, D.C.. U.S. Government Printing Of- Maternity Leave, and Health & Safety. fice, 1985. Washington, D.C.: BNA, 1987. Employment and Earnings. Gainer, William J. Testimony on the Gen- Washington, D.C.. U.S. Government eral Accounting Office's cost estimate Printing Office, January 1986 and Jan- of S. 249. the "Parental and Medical uary 1988. Leave Act of 1987," before the Sub- U.S. General Accounting Office. Parental committee on Children, Families, Leave: Estimated Costs of H.R. 925, Drugs. and Alcoholism of the Senate the Family and Medical Leave Act of Committee on Labor and Human Re- 1987. GAM IRD-88-34. Washington, sources. October 29, 1987. D.C.: U.S. General Accounting Of- Kaerman, Sheila B., Alfred J. Kahn, and fice, 1988. Paul Kingston. Maternity Policies and

31

29