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Monday, October 09, 2006

Seniority Rights and Parental Leaves

The employment discrimination listserv has been engaged in a debate about whether women who take maternity leave should be entitled to the same seniority count as other employees. Euguene Volokoh today presents a hypothetical:

Imagine that an employer has two employees. One has worked for the employer since seven years ago, but has worked all seven years, and has had seven years' worth of job experience. The other has worked for the employer since eight years ago, but has worked only five of those eight years, because she has taken three years off for pregnancy and maternity leave. She therefore has five years' worth of job experience. Both employees are women. While the latter has chosen to have three children, the former has chosen to have zero children, possibly because she doesn't want children, or because she is physically unable to have children and doesn't want to adopt. Should we treat the employer as "penalizing" the second employee for her pregnancy, when it counts the first woman as having seven years seniority, and the second woman as having five years' seniority, corresponding to the actual time spent on the job and the actual experience the women acquired? Should we therefore insist that the second woman be given more seniority than the first, even though the first has more experience? Should the law mandate such preference for women with children over women who are childless?

The discussion began with the work law blog folks presenting a recent decision by the European court, ruling that “women who take maternity leave forfeit the right to earn the same pay as male colleagues who are doing the same job but haven’t taken time off.” As Richard Carlson points out, seniority protecting seniority systems from the impact of discrimination law is common, for example, in the U.S., Title VII states:

Notwithstanding any other provision of this subchapter, it shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bona fide seniority or merit system, ... provided that such differences are not the result of an intention to discriminate because of race, color, religion, sex, or national origin....

The FMLA has a provision 29 C.F.R. 825.215(d)(2):

An employee may, but is not entitled to, accrue any additional benefits or seniority during unpaid FMLA leave. Benefits accrued at the time leave began, however, (e.g., paid vacation, sick or personal leave to the extent not substituted for FMLA leave) must be available to an employee upon return from leave.

There are several important questions that should be worked through with regard to maternity leave. First, if maternity leave is protected by the FMLA and pregnancy and post-labor leave should not be penalized for seniority, should we distinguish between those periods and more extended periods for which parents take time away from work? These first periods are distinguishable because they are largely considered physically necessary. Second, is it a penalty to deduct seniority privileges (which have value for pay, benefits, promotions, reputation) for maternity leave? Even if from the perspective of the individual employer, it is important to maintain the seniority count on the basis of time actually at work, should the state in effect subsidize people who have children to order a system that maintains their time count?

Posted by Orly Lobel on October 9, 2006 at 04:06 PM in Orly Lobel | Permalink


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