Pregnancy in Pieces: The Potential Gap in State and Federal Pregnancy Leave
Source: Sarah Stewart Holland, Berkeley Journal of Employment and Labor Law, 2006, Volume 27, no. 2
... Pregnancy, childbirth, and bonding with a newborn are part of a continuous experience and should be treated as such under the Family and Medical Leave Act and complementary state leave laws. ... As the Gerety decision shows, however, pregnant employees facing gaps in coverage have not always been successful when alleging disparate impact under anti-discrimination statutes. ... The FMLA does not automatically cover a pregnant employee, like Gerety, who wants to use medical leave for illness related to gestation before childbirth. ... While some employees, like Gerety, may be able to meet this higher standard because of the high-risk nature of their pregnancies, a pregnant employee attempting to receive medical leave for normal pregnancy-related illness would face a much stricter standard than a pregnant employee attempting to receive medical or parental leave for childbirth. ... Specifically, Gerety would have exhausted her pregnancy-related illness leave two months before the birth of her twins, and she would have faced a larger gap without coverage then she actually faced under Hilton's leave policy and the FMLA. ... Second, courts continually refuse to see pregnancy as a medical condition unique to women and, therefore, that any leave policy affecting only pregnant women should be seen as per se discrimination as stated in the PDA. ...