Taking back the right to take leave

Twenty years ago, President Bill Clinton signed the Family and Medical Leave Act (FMLA) into law, giving employees the right to take unpaid leave for certain family or medical reasons. But over the past two decades, says law professor Catherine Albiston, employees have actually had mixed experiences with the landmark law.

Consider the stories of employees "Mark Wilson" and "Shirley Harris" (pseudonyms). Mark feared taking time off from work when his son was born. Although legally entitled to 12 weeks of FMLA leave, he felt pressure to come back to work after only a single week because of negative judgments from colleagues. “Hey,” said one coworker, “you didn’t have a baby.” In contrast, the FMLA gave Shirley language to use when asking her employer for time off for a medical condition. The law “gave me a leg to stand on, and some kind of moral or ethical support knowing this is what my rights were,” she said.

According to Albiston, who is a fellow at Stanford's Center for Advanced Studies in the Behavioral Sciences, Mark and Shirley's divergent experiences illustrate a paradox. Since the FMLA became law 20 years ago, she says, it has played out in two contradictory ways.

In a recent talk sponsored by the Clayman Institute for Gender Research, Albiston explained how family and medical leave law operates in today’s courts and workplaces. Social expectations and workplace structures, she says, often limit the positive effect these laws can have. At the same time, when circumstances bring the law to the forefront of people’s minds, family and medical leave law can motivate real social change. In fact, in joint research with Stanford sociologists Shelley Correll and Traci Tucker, Albiston found that law can shape social attitudes. Once employers and coworkers become familiar with the FMLA, they begin to see leave as a "right"—and their negative judgments of leave takers diminish accordingly.

The 1993 Family and Medical Leave Act

Until the 1990s, laws about workplace discrimination typically focused on the more obvious kinds of bias, like refusing to hire women explicitly on gender grounds. These “disparate impact” laws regulate the unfair treatment of specific groups—such as women or people with disabilities—rather than changing the substantive features of work.

Twenty years ago, the FMLA mandated more fundamental changes in workplace practices. The law entitles employees to 12 weeks of unpaid leave for the birth or adoption of a new child, to care for a sick dependent, or if the employee has a serious health condition. This law applies to organizations with at least 50 employees, and the leave taker must have worked for the organization for at least a year.

Rather than providing special protection for key groups, the FMLA interrogates persistent and widespread workplace time norms. For example, most employers expect workers to follow a standard 40-hour, five-day, employer-controlled workweek. The FMLA calls this expectation into question and explicitly acknowledges exceptions to this rigid arrangement.

In today's world, only 20 percent of families fit the traditional model of a male breadwinner with a stay-at-home spouse. The FMLA acknowledges that all employees—male and female—may need time off for caretaking responsibilities. As such, the law effectively requires that employers adapt to meet the new realities of American families, rather than requiring families change to meet employers' needs.

Difficulties taking leave

Albiston found that not all workers can take FMLA leave without suffering social costs and financial blows in the form of fewer raises and promotions. Albiston interviewed workers who negotiated leave, and she found that many leave-taking women face discrimination when they return to work. Supervisors and coworkers often consider these women less competent and committed than before they took leave, and the women consequently receive less challenging assignments or reduced work schedules.

For example, when “Rhonda Miller” (pseudonym) came back from family leave, her boss assumed she was “having a problem with her kid.” “[Now] he makes me feel like I’m inadequate. Like I can’t do the job, like I’m not bright enough,” she said. Despite her seven years of job tenure as a file manager, her boss lowered his expectations after she took leave. Other researchers such as Stanford sociologist Shelley Correll have similarly demonstrated that employers judge mothers more harshly than equally qualified non-mothers. Mothers consequently receive lower wages and fewer organizational rewards such as promotions.

But it’s not just women who have these problems. Plenty of men want to take time off for family or medical leave, and they can face even harsher penalties than women do.

Remember Mark Wilson’s coworkers, who considered family leave inappropriate since he didn’t “have the baby”? Assumptions about proper gender behaviors constrain the interpretation of leave taking and make it difficult for men to exercise their legal rights without facing heavy penalties, whether social or financial.

The potential for the FMLA to motivate positive social change

Despite this disheartening trend, Albiston remains optimistic. Law, she contends, can change people's behavior—not only through fear of punitive sanctions, but also by actually changing people's values.

The FMLA, says Albiston, provides a counter-narrative for workers to use with their employers, friends, and family members. Just knowing about the FMLA can make people see leave taking as a fundamental right rather than evidence of a worker’s lack of dedication. If employees emphasize the law and its implications, our cultural expectations about work may begin to shift in a positive direction.

To evaluate the beneficial potential of the FMLA, Albiston partnered with Stanford sociologists Shelley Correll and Traci Tucker, as well as Christina Stevens from UC Berkeley. The team conducted an experimental study testing whether family-friendly laws can reduce bias against caregivers. The experimental participants compared employees who take leave to those who do not.

One group of participants received information about the FMLA, while another group did not receive any information about leave policies. Then the participants rated the employees and determined how to reward each employee financially. In the “no policy” group, participants heavily penalized the leave-taking employees. They were less likely to recommend leave takers for promotion and suggested about a $1,000 lower raise. In the FMLA condition, these differences disappeared. Leave takers were equally likely to receive promotions and raises compared to the non-leave-taking employees.

Why did participants who knew about the FMLA respond differently from those in the no-policy condition? The explanation, according to Albiston, is that people view law as a collective statement of social values, and this statement carries a moral weight that legitimates taking leave as an employee right.

Raising awareness of the FMLA

Because the FMLA frames leave taking as an important worker right, people—at least those people who know about the law—are less likely to view leave taking in a negative light. The FMLA has been on the books for 20 years—and yet, it's surprising how little many Americans know about it. According to Albiston, raising awareness of the FMLA and its provisions can open the door to positive social change.

By making the Family and Medical Leave Act salient and visible, employees can increase the chances that their employers will recognize leave as acceptable and legitimate. Employees can use the narrative framework of the FMLA to portray family and medical leave as a basic right rather than a special exemption. In this way, laws can help redesign work by reshaping traditional understandings of how work should be conducted.