Garland's Bouquet

By Amy Wilentz

When she left her work as a receptionist at the California Federal Savings and Loan Association office in West Los Angeles to have her first baby, in 1982, Lillian Garland figured she would simply take a short, unpaid disability leave and return to her job, a right guaranteed by state law. But there were complications. Garland's baby girl was delivered by Cesarean section, and her doctor prescribed a three-month leave. When she returned to Cal Fed, Garland found that her position had been filled. "I didn't know what to do," she says. Unemployed and unable to pay her $550-a-month rent, Garland was eventually evicted from her apartment. She and her daughter moved into a friend's living room. Shortly after, she agreed to let the father take care of the baby until Garland found a job. By the spring of 1983, he had sued for and received custody.

Angered by this string of events, Garland filed a complaint against Cal Fed, citing a 1978 California law that requires employers with 15 or more workers to offer up to four months' unpaid leave for pregnant women with the promise of the same or a comparable job upon their return. Cal Fed responded with its own suit in federal court against the California law, arguing that it conflicted with the Pregnancy Discrimination Act, a measure passed by Congress in 1978 that outlaws discrimination on the basis of pregnancy. The California statute, claimed Cal Fed, discriminates against men by requiring special benefits that are available only to women.

Last week, in a landmark decision for working mothers, the U.S. Supreme Court upheld the California law by a 6-to-3 vote, ruling that a state is permitted to require an employer to provide special job protection for workers temporarily disabled by pregnancy. Realistic in its scope and modest in its rhetoric, the decision could have enormous impact on the growing social dilemma caused by the influx of women into the job market over the past 25 years: the heavy burden of holding down a job and having children at the same time. "It's a wonderful victory," said Feminist Betty Friedan, who lost her first job when she became pregnant. "It says that equality does not mean women have to fit the male model." The ruling opens up the possibility of radical -- and potentially costly -- changes in the employment practices of American business. Says Virginia Lamp, an attorney for the U.S. Chamber of Commerce: "The ruling is disappointing and a shock. It was a victory for proponents of special treatment for women in the workplace."

Writing the main opinion, Justice Thurgood Marshall concluded that the California law did not violate the federal law or discriminate against men, as Cal Fed claimed. Rather it "promotes equal employment opportunity" by allowing "women, as well as men, to have families without losing their jobs." The Justice noted that the California statute "does not compel employers to treat pregnant workers better than other disabled employees; it merely establishes benefits that employers must, at a minimum, provide to pregnant workers. Employers are free to give comparable benefits to other disabled employees."

The majority coalition cut across ideological lines. Sandra Day O'Connor, a Reagan appointee and the court's only woman, joined the liberal Marshall in his opinion, as did William Brennan, Harry Blackmun and (with a minor exception) John Paul Stevens. Antonin Scalia, a philosophical conservative who is Reagan's only other appointee to the bench, wrote a separate opinion that agreed with the outcome but on narrower grounds.

The U.S. is the only advanced industrialized nation with no national policy to provide maternity leave. But in recent years that has been slowly changing, state by state. Some form of pregnancy-leave law is on the books of eight states besides California: Connecticut, Hawaii, Kansas, Massachusetts, Montana, New Hampshire, Ohio and Washington. The decision is likely to spur battles on the controversial issue elsewhere.

Some 65% of women of childbearing age are now in the American work force (see chart), and 90% of them have had or will have children during their careers. Yet only about two-thirds are entitled, under state law or company policy, to pregnancy leaves that guarantee reasonable job security. Larger companies are usually better able to accommodate such leaves than are smaller ones. Among FORTUNE 500 companies, 81% offer job-protected pregnancy leaves to female employees.

The debate over pregnancy leave has created a deep rift among feminists. One side argues that pregnancy leave, even though it benefits individual women, poses a general danger to female workers because it singles them out for special protection. Historically, they point out, such privileged treatment has eventually led to discrimination against women. Says Marsha Levick of the National Organization for Women's legal defense and education fund: "That almost always backfires."

But other feminists contend pregnancy leave simply acknowledges women's childbearing function and neutralizes its effect on career advancement. The California law "in effect equalizes working men and women," argues Christine Littleton, counsel for the Los Angeles-based Coalition for Reproductive Equality in the Workplace. "It is okay to recognize that women have some difference in their requirements," says Economist Sylvia Ann Hewlett, who has criticized feminists in the past for denigrating the importance of women's child-rearing and family responsibilities. "This decision means that there is recognition at the highest legal levels that in order to get equal results for women in the workplace, you have to create family supports."

After the decision was handed down last week, feminists from both schools were generally supportive. NOW's Levick said she was "pleased that women have retained benefits for disability," but added that the next step was to extend such leaves to fathers as well. A bill requiring this type of "parental leave" will be introduced next month. It would allow up to 18 weeks of unpaid leave with job security for both new mothers and new fathers. "I think this decision gives us terrific momentum," says Colorado Congresswoman Pat Schroeder, a sponsor. "If the Reagan Supreme Court understands this issue, let us hope that the Democratic House and Senate do as well."

A formidable opponent looms. The U.S. Chamber of Commerce, which bemoaned last week's decision, has targeted the parental-leave bill for defeat. Mandated benefits, many business leaders argue, impose too big a financial burden on small enterprises. The decision "spells disaster," says Don Butler, president of the Los Angeles-based Merchants and Manufacturers Association. "Larger companies can shift to fill a hole, but small ones cannot do that very easily. If I employ ten females and two or more get pregnant at one time, I might as well file for bankruptcy." Discrimination against women might increase. Many companies "just won't hire women in their childbearing years," says the Chamber's Attorney Lamp.

Some employers have come to believe that pregnancy leaves may pay off in the long run. Merck & Co., a New Jersey-based drug firm, grants an average of six weeks of paid pregnancy leave and an additional six months of unpaid personal leave if desired. "You can't close your eyes to the fact that the work force has totally changed," says Arthur Strohmer Jr., the company's executive director of human resources. "Increasingly, entrants are women of childbearing age and working mothers. You have to make some adaptations to that pool of talent if only to stay in business." The benefits to the company, Strohmer says, are long term: "We get to keep a lot of people we can't afford to lose."

For Lillian Garland, the loss of her $850-a-month job was the beginning of a wrenching struggle. Cal Fed eventually reinstated her, but she resigned last spring and now works as a real estate agent. "It's been five years of hell," Garland says of the long legal struggle. "But even if it had taken 20 years, I'd do it again. I felt like I was fighting for all women in the work force. Women should not have to choose between being a mother and having a job."

CHART: ON THE JOB. Percent of women of childbearing age who work

Description: Rise of number of women of childbearing age as percent of total employed work force, 1960 to 1986.

With reporting by Anne Constable/Washington and Jon D. Hull/Los Angeles