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. …

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