Happy Mother’s Day!

This article was written by guest author Rona Kaufman Kitchen, Assistant Professor of Law at Duquesne University School of Law.

With May’s commemoration of Mothers upon us, this is an opportune time to contemplate whether our laws and policies honor and protect mothers and the care they provide. Is Mother’s Day a celebration of the value of mothers in our society and an affirmation of our national appreciation for their work, or is Mother’s Day just the momentary pause to applaud mothers by an otherwise ungrateful nation?

On May 3, 2011, Save the Children published its 12th annual Mothers Index which found Norway to be the best place in the world to be a mother and Afghanistan to be the worst place in the world to be a mother.[i] The United States ranked an unimpressive 28th, due in large part to high maternal and child mortality rates.[ii] The United States’ maternal mortality rate of 1 in 4,800 is higher than thirty-five out of forty-three developed countries “including all the Western, Northern and Southern European countries (except Estonia and Albania) as well as Australia, Bulgaria, Canada, Czech Republic, Hungary, Japan, New Zealand, Poland, Slovakia, and Ukraine.”[iii] A woman in the U.S. is five times more likely to die from pregnancy-related causes than one in Italy or Greece and she is nearly 10 times more likely than a woman in Ireland.[iv]  For a nation that prides itself on having one of the highest standards of living in the world – this report is a sobering indication that we may be leaving our mothers behind.

Evaluation of maternity leave policies was another factor included in making the Mothers Index ranking determinations. The United States was cited as having the “least generous maternity leave policy – both in terms of duration and percent of wages paid – of any wealthy nation.”[v] In the United States, pursuant to the Family and Medical Leave Act (FMLA), eligible mothers are entitled to take up to 12 weeks of unpaid job-protected leave to care for a newborn or recently adopted or foster-placed child.[vi] In 1993, when President Clinton signed the FMLA, it was heralded by many as an important beginning of a new era for working mothers.[vii] While the FMLA was initially considered progressive, as compared with many other countries’ family supports, since its adoption most countries have enacted much more generous legislation. The United States is now one of only four industrialized nations that fail to offer any paid maternity leave.[viii] The others are Lesotho, Papua New Guinea, and Swaziland.[ix] The lack of paid leave forces many mothers to choose between earning income to afford basic necessities like food and shelter, and providing the care that their children need. Consequently, only one-fifth of eligible employees take leave, with over three-quarters citing the inability to afford the leave as a reason. [x]

In addition to failing to offer any paid leave, FMLA has other significant deficiencies as well. Due to its strict eligibility requirements – such as the requirement that an employee work for an employer that employs at least 50 employees for at least 1,250 hours during the 12 months preceding the requested leave – two-thirds of steadily employed mothers have no FMLA rights and therefore no right to any federal job-protected leave at all.[xi] Consequently, these mothers can be terminated from their employment for taking any time off to care for a newborn or a child with a serious health condition.

Why are American mothers behind their European sisters? Why is the United States an outlier in the area of family-friendly legislation? Why has Congress failed to enact legislation to better enable mothers and other primary caretakers to successfully combine paid work with mothering? Academicians and activists have offered multiple reasons for this national failure. Some assert that discrimination against women is the culprit. Others argue that the ideal worker[xii] norm, the expectation that an employee will be fully devoted to work all-day, every-day, with no breaks for childbearing or child rearing, is so engrained in our cultural work-ethic that there cannot be any support for mothers or others with care responsibilities to combine work with care.  I would add that an additional explanation for Congress’s inaction is that mothering, the care work provided to children, families, and communities, is undervalued by American society and policymakers and as a result there is no political will to pass comprehensive family leave legislation.

If we could harness the appreciation that Americans feel and express on Mother’s Day and incorporate it into our long-term societal values, maybe Congressional action would soon follow.

[i] Save the Children, State of the World’s Mothers 2010: Women on the Front Lines of Healthcare, 32 (2011), http://www.savethechildren.org/atf/cf/%7B9def2ebe-10ae-432c-9bd0-df91d2eba74a%7D/SOWM-2010-Women-on-the-Front-Lines-of-Health-Care.pdf?msource=wexyhgaf1010.

[ii] Id. at 32-35.

[iii] Id. at 34.

[iv] Id.

[v] Id. at 35.

[vi] Family and Medical Leave Act, 29 U.S.C. §2601 (1993).

[vii] For an in-depth history of the purpose and passage of the FMLA, see Marcus D. Ward, The Family Medical Leave Act of 1993: A Sound Investment, or an Expensive Lesson in Employee Benefits?, 20 T. Marshall L. Rev. 413, 415 (1995).

[viii] Jody Heymann, Alison Earle & Jeffrey Hayes, Work, Family, and Equity Index: How Does the U.S. Measure Up? The Project on Working Global Families & Harvard School of Public Health and Institute for Health and Social Policy, 1-2 (2007), http://www.mcgill.ca/files/ihsp/WFE12007FEB.pdf.

[ix] Id.

[x] U.S. Dep’t of Labor, FMLA Survey (2000), available at http://www.dol.gov/whd/fmla/chapter2.htm.

[xi] Gillian Lester, A Defense of Paid Family Leave, 28 Harv. J.L. & Gender 1, 2 (2005).

[xii] For an in-depth discussion of the “ideal worker” see Joan Williams, Unbending Gender: Why Family And Work Conflict And What To Do About It (2000).