Romantic Paternalism in Philippine Labor Law: Revisiting the Tradition, Realizing its Folly and...

Romantic Paternalism in Philippine Labor Law – Revisiting the Tradition, Realizing its Folly, and Proposing Reconstruction in the Light of American ExperienceEmily Sanchez Salcedo, J.D., LL.M.De La Salle University, Manila, [email protected]

This article analyzes the paternalist legal framework of Philippine labor policies and its role in the subordination of working women in the country. It presents the inconsistency between the Philippines’ constitutional declarations of adherence to gender equality against a backdrop of paternalist labor laws that remain untouched by the legislature and uncorrected by the judiciary. It goes on to explore the evolution of American principles on the subject and explains how the latter jurisdiction similarly started with paternalist stance but gradually moved towards more enlightened principles of fairness for the sexes in the field of work. The paper urges key labor policy reforms in the Philippines in the light of the American experience with special focus on the proper treatment of employee benefits related to pregnancy and childbirth. The possibility of adopting American principles in the Philippine setting holds much promise in view of the historical ties between the two countries.

Keywords: romantic paternalism, employment discrimination, gender discrimination, pregnancy discrimination, feminine subordination, gender equality

DLSU Business & Economics Review 21.1 (2011), pp. 77-96

Copyright © 2011 De La Salle University, Philippines

The PaTernalisT legal Framework oF PhiliPPine labor Policies

The Bill of Rights of the 1987 Philippine Constitution enshrines the fundamental guaranty that “no person shall be deprived of life, liberty or property without due process of law, nor shall any person be denied the equal protection of the laws” (Phil. Cons. Art. III, Sec. 1). Although patterned after the Fourteenth Amendment of the American Constitution, the Philippine version however went further with more specifics such as declaring a

state policy of recognizing the “role of women in nation-building”, and ensuring “the fundamental equality before the law of women and men” (Art. II, Sec. 14). In the realm of labor, it reiterated the guaranty of “equality of employment opportunities for all” (Art. XIII, Sec. 3).

Despite this straightforward guaranty of equality between the sexes, the Philippine Constitution ironically made a dangerous step towards paternalism by expressly mandating the State to “protect working women by providing safe and healthful working conditions, taking into account their maternal functions, and such facilities

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and opportunities that will enhance their welfare and enable them to realize their full potential in the service of the nation” (Art. XIII, Sec. 14).

Like the Philippine Constitution, the Philippine Labor Code begins with a clear declaration of basic policy to “ensure equal work opportunities regardless of sex, race or creed” (Pres. Dec. No. 442, Art. 3) but goes on to explain the scope of the guaranty in a manner that leans toward paternalism. Just as ironic, the Labor Code categorized women as a “special group” of employees lumped together with minors, household workers, and homeworkers that required special attention and protection. Women workers are generally prohibited from performing nightwork and are at the receiving end of maternity benefits, family planning incentives and special facilities for health and safety owing to their maternal functions – benefits not made available to men.

A half-baked provision against discrimination can also be found in the Labor Code - a declaration that employers are prohibited from discriminating “against any woman employee with respect to terms and conditions of employment solely on account of her sex” (Art. 135) sadly ignoring that discrimination against male employees also occurs, as when men are excluded from jobs traditionally held by women. Thus, the following acts are considered unlawful discrimination that can be committed solely against a female employee:

1. payment of a lesser compensation, including wage, salary or other form of remuneration and fringe benefits, to a female employee as against a male employee, for work of equal value; and

2. favoring a male employee over a female employee with respect to promotion, training opportunities, study and scholarship grants solely on account of their sexes (Art. 135).

A more notable flaw of this provision is the

lack of prohibition on discriminatory hiring

practices. The law is myopic for it does not address the more primordial issue of whether or not women are given a fair chance of getting employed at all.

Fairly recently, the Philippine Congress passed the Magna Carta of Women in 2009, a much-awaited piece of legislation envisioned to overhaul the Philippine legal system to synthesize and synchronize efforts toward gender equality in all aspects of society. Many had hoped that the statute would remedy the inadequacies in existing labor legislation, among others, but the contrary result seems to have been achieved.

First, the Magna Carta did not correct the misplaced categorization of women as “special workers” under the Labor Code. It could have easily repealed the nightwork prohibition as well but it lamely directed the Philippine Commission on Women to review the same in coordination with concerned agencies and women’s groups and to submit recommendation for possible amendment or repeal to Congress. It likewise did not deem it necessary to restructure the rules on maternity benefits; instead, it added a special leave benefit exclusively for women suffering from gynecological disorders without providing a counterpart provision for men who may also suffer from reproductive health problems. Finally, it overemphasized protection of women from occupational and health hazards, always expressly taking into account their maternal functions, as if the required support services and personal protective equipment are not equally desirable for male workers.

a closer look aT The Zealous ProTecTion For womanhood and moTherhood

The nightwork Prohibition

Under the Philippine Labor Code, no

woman, regardless of age, shall be employed or permitted or suffered to work, with or without compensation:

SALCEDO, E.S. 79ROMANTIC PATERNALISM IN PHILIPPINE LABOR LAW

1. in any industrial undertaking or branch thereof between ten o’clock at night and six o’clock in the morning of the following day; or

2. in any commercial or non-industrial undertaking or branch thereof, other than agricultural, between midnight and six o’clock in the morning of the following day; or

3. in any agricultural undertaking at nighttime unless she is given a period of rest of not less than nine (9) consecutive hours (Art. 130).

The rule allows a number of exemptions based on urgency, nature and status of employment, or relationship. On the matter of urgency, nightwork may be allowed when necessary to prevent serious loss of perishable goods, in the event of actual or impending emergencies caused by disasters or calamity, or in any case where there is a need to perform urgent work to avoid serious loss which the employer would otherwise suffer if women workers are not permitted to work at night.

As regards nature and status of employment, female employees engaged in providing health and welfare services are permitted to work at nighttime. The same is true when the nature of the work requires the manual skill and dexterity of female workers and such cannot be performed with equal efficiency by male workers. Moreover, night work may be justified where the woman employee holds a responsible position of managerial or technical nature.

Finally, the law finds it reasonable to allow nightwork where a woman employee is an immediate family member of the owner or operator of the establishment or undertaking.

The foregoing rule prohibiting nightwork is an offshoot of the Philippines’ ratification of the International Labour Organization Convention on Nightwork as early as 1953, two decades before the Labor Code took effect. The said Convention prohibits employment of women during nighttime defined as the period between

the hours of ten o’clock in the evening and seven o’clock in the morning in any public or private industrial undertaking other than one in which only members of the same family are employed. The rule admits of three additional exceptions in case of force majeure, when interruption of work is impossible to foresee and is not of recurring character; in cases where the work has to do with raw materials in course of treatment and which are subject to rapid deterioration and nightwork is necessary to preserve the said materials from loss, and in the case of women holding responsible positions of managerial or technical character as well as those employed in health and welfare services who are not ordinarily engaged in manual work.

Obviously, the submitted rationale for the nightwork prohibition is the protection of women from health and safety risks. These may range from minor difficulties, such as adequate access to mass transport systems, to major safety concerns, such as exposure to criminal elements that are perceived to be greater at nighttime. Theories of deleterious effects of disrupted sleep patterns and body rhythms on fertility and the ability to sustain healthy pregnancy likewise abound. Finally, nightwork hinders women from fulfilling their traditional nurturing roles at home, hence, the prohibition.

Pregnancy and Related Benefits

Under the Labor Code, it is unlawful for any employer to discharge a female employee on account of pregnancy, or while on leave or in confinement due to pregnancy, and to discharge or refuse re-admission upon her return to work for fear that she may again be pregnant (Art. 137). The laudable nature of this provision is however diluted by another provision in the same statute providing a mandatory maternity leave for a period of two weeks prior to expected date of delivery and additional four weeks thereafter (Art. 133). Thus, while one part of the Labor Code assures the female employee that she will not be forced out of her job due to pregnancy, another


part of the same statute effectively requires her to do just that – give up her job for a fixed period of time - without considering whether or not she actually needed, or wanted, a long break for child delivery. The period was even lengthened by the Philippine Social Security Act of 1997 to sixty days in case of normal delivery or miscarriage and seventy-eight days in case of caesarian delivery. The benefit covers up to a maximum of four deliveries or miscarriages and may be availed of regardless of the female employee’s marital status (Rep. Act. No. 8282, Sec. 14-A).

On the other hand, the maternity benefit for women employed in government service covers a period of sixty calendar days with full pay for female employees who have rendered an aggregate of two or more years of service, half pay for those who have rendered less than one year of service, and a pro-rated computation for those with tenure falling somewhere in between. The benefit may be availed in every instance of pregnancy, irrespective of frequency (Omnibus Civil Service Rules, Rule XVI, Sec. 11).

Another point worthy of consideration is the lack of equitable counterpart of the foregoing maternity leave benefits for fathers who may be similarly interested in caring for their newborn. For the longest time, Philippine society had assumed that childcare is purely a mother’s obligation. It was only in 1996 that the Paternity Leave Act was passed into law granting married male employees in the private and public sector a paternity leave of seven days with full pay for the first four deliveries or miscarriages of the legitimate spouse with whom they are cohabiting. The Philippine Legislature finally realized that men should be given an opportunity to effectively lend support to their wives in their period of recovery and/or in the nursing of their newborn child (Rep. Act No. 8187, Sec. 2). Obviously, the very short period of seven days appears inadequate if the intention is really to share the joys and pains of parenthood between father and mother but it is nonetheless better than nothing at all.

Finally, the Magna Carta of Women introduced an exclusive privilege that entitles a female

employee who has rendered continuous aggregate employment service of at least six months for the past twelve months to a special leave benefit of two months with full pay based on her gross monthly compensation following surgery caused by gynecological disorders (Rep. Act. No. 9710, Sec. 18). The term is understood in the Implementing Rules and Regulations to refer to disorders of the female reproductive organs such as the vagina, cervix, uterus, fallopian tubes, ovaries, breast, adnexa and pelvic floor. Gynecological surgeries are deemed to include, but are not limited to, dilation and curettage, hysterectomy, ovariectomy, and mastectomy (Implementing Rules and Regulations, Sec. 7-M). Sadly, the Magna Carta has just taken one step forward and two steps backward.

Special Facilities for Health and Safety

As earlier noted, the Magna Carta of Women directs employers to ensure the provision of support services and gears to protect women from occupational and health hazards taking into account their maternal functions. In furtherance of this end, the Implementing Rules and Regulations of the Magna Carta provide that women workers shall be “protected against safety and health hazards, including, but not limited to, exposure to hazardous chemicals, infections, conditions leading to musculoskeletal disorders, work environment leading to noise-induced hearing loss, and exposure to radiation and psychological stressors”. They should likewise be provided with appropriate “personal protective equipment to prevent injury or impairment in any part of their bodies resulting from engagement in hazardous jobs” (Sec. 25-A-2). The Rules likewise echoed a provision in the Labor Code requiring employers to provide special facilities such as comfortable seats appropriate for women (Sec. 20-B-4).

Again, it is worth noting that the vigilance of the statute is focused solely on the protection of women as if implying that men need not be accorded the same privilege.


The Case of Philippine Association of Service Exporters, Inc. v. Drilon

True to the Constitutional promise to protect

working women, the Philippine Supreme Court, in the case of Philippine Association of Service Exporters, Inc. v. Drilon (1988), interestingly upheld the constitutionality of an administrative order issued by the Department of Labor that temporarily prohibited Filipino women from deployment as overseas domestic workers but without similarly limiting the ability of Filipino men to seek employment in foreign countries. In deciding the issue, the Supreme Court took judicial notice of the -

unhappy plight that has befallen our female labor force abroad, especially domestic servants, amid exploitative working conditions marked by, in not a few cases, physical and personal abuse. The sordid tales of maltreatment suffered by migrant Filipina workers, even rape and various forms of torture, confirmed by testimonies of returning workers, are compelling motives for urgent Government action. As precisely the caretaker of Constitutional rights, the Court is called upon to protect victims of exploitation. In fulfilling that duty, the Court sustains the Government’s efforts.

The Supreme Court noted that the same cannot be said of Filipino men working abroad, hence, there was no need for the Government to act similarly with respect to them. In the midst of the “terrible mistreatment Filipina workers have suffered abroad”, the Court had no doubt that “a ban on deployment will be for their own good and welfare.” Knowing only too well that this conclusion will draw vigorous criticisms, the Philippine Supreme Court justified its opinion as follows:

[t]he Court, of course, is not impressing some male chauvinistic notion that men are superior to women. What the Court is saying

is that it was largely a matter of evidence (that women domestic workers are being ill-treated abroad in massive instances) and not upon some fanciful or arbitrary yardstick that the Government acted in this case. It is evidence capable indeed of unquestionable demonstration and evidence this Court accepts. The Court cannot, however, say the same thing as far as men are concerned. There is simply no evidence to justify such an inference. Suffice it to state, then, that insofar as classifications are concerned, this Court is content that distinctions are borne by the evidence. Discrimination in this case is justified.

lessons From american laws and JurisPrudence

Romantic Paternalism Reflected in Early American Jurisprudence

Early American jurisprudence had its own

share of doctrines reflecting romantic paternalism. In the case of Bradwell v. Illinois (1873), the American Supreme Court ruled that the State of Illinois was not in violation of the Privileges and Immunities Clause of the Fourteenth Amendment when it refused to grant married women the privilege to practice law. The rationale offered by Justice Bradley in his concurring opinion was most interesting -

…the civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, woman’s protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that


which properly belongs to the domain and functions of womanhood. The harmony, not to say identity, of interests and views which belong, or should belong, to the family institution is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband. So firmly fixed was this sentiment in the founders of the common law that it became a maxim of that system of jurisprudence that a woman had no legal existence separate from her husband, who was regarded as her head and representative in the social state; and, notwithstanding some recent modifications of this civil status, many of the special rules of law flowing from and dependent upon this cardinal principle still exist in full force in most States. One of these is that a married woman is incapable, without her husband’s consent, of making contracts which shall be binding on her or him. This very incapacity was one circumstance which the Supreme Court of Illinois deemed important in rendering a married woman incompetent fully to perform the duties and trusts that belong to the office of an attorney and counsellor. It is true that many women are unmarried and not affected by any of the duties, complications, and incapacities arising out of the married state, but these are exceptions to the general rule. The paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator. And the rules of civil society must be adapted to the general constitution of things, and cannot be based upon exceptional cases (pp. 141-142).

Thirty-five years after, in Muller v. Oregon (1908), the American Supreme Court reiterated the belief that a “woman’s physical structure, and the functions she performs in consequence thereof, justify special legislation restricting or qualifying the conditions under which she should

be permitted to toil.” Thus, an Oregon statute limiting a woman’s working day to a maximum of ten hours only was declared constitutional. According to Justice Brewer -

That woman’s physical structure and the performance of maternal functions place her at a disadvantage in the struggle for subsistence is obvious. This is especially true when the burdens of motherhood are upon her. Even when they are not, by abundant testimony of the medical fraternity, continuance for a long time on her feet at work, repeating this from day to day, tends to injurious effects upon the body, and as healthy mothers are essential to vigorous offspring, the physical well-being of woman becomes an object of public interest and care in order to preserve the strength and vigor of the race. Still again, history discloses the fact that woman has always been dependent upon man. He established his control at the outset by superior physical strength, and this control in various forms, with diminishing intensity, has continued to the present. As minors, though not to the same extent, she has been looked upon in the courts as needing especial care that her rights may be preserved. Education was long denied her, and while now the doors of the school room are opened and her opportunities for acquiring knowledge are great, yet even with that and the consequent increase of capacity for business affairs it is still true that in the struggle for subsistence she is not an equal competitor with her brother. Though limitations upon personal and contractual rights may be removed by legislation, there is that in her disposition and habits of life which will operate against a full assertion of those rights. She will still be where some legislation to protect her seems necessary to secure a real equality of right. Doubtless there are individual exceptions, and there are many respects in


which she has an advantage over him; but looking at it from the viewpoint of the effort to maintain an independent position in life, she is not upon an equality. Differentiated by these matters from the other sex, she is properly placed in a class by herself, and legislation designed for her protection may be sustained, even when like legislation is not necessary for men and could not be sustained. It is impossible to close one’s eyes to the fact that she still looks to her brother and depends upon him. Even though all restrictions on political, personal and contractual rights were taken away, and she stood, so far as statutes are concerned, upon an absolutely equal plane with him, it would still be true that she is so constituted that she will rest upon and look to him for protection; that her physical structure and a proper discharge of her maternal functions -- having in view not merely her own health, but the well-being of the race -- justify legislation to protect her from the greed as well as the passion of man. The limitations which this statute places upon her contractual powers, upon her right to agree with her employer as to the time she shall labor, are not imposed solely for her benefit, but also largely for the benefit of all. Many words cannot make this plainer. The two sexes differ in structure of body, in the functions to be performed by each, in the amount of physical strength, in the capacity for long-continued labor, particularly when done standing, the influence of vigorous health upon the future well-being of the race, the self-reliance which enables one to assert full rights, and in the capacity to maintain the struggle for subsistence. This difference justifies a difference in legislation and upholds that which is designed to compensate for some of the burdens which rest upon her (pp. 412-423).

In a similar vein, the American Supreme Court upheld the constitutionality of a statute prohibiting

women from engaging in nightwork at restaurants in first and second class cities in the State of New York. In Radice v. New York (1924), Justice Sutherland upheld the statute against the twin challenges that it violated (1) the due process clause, by depriving the employer and employee of their liberty of contract, and (2) the equal protection clause, by making an unreasonable and arbitrary classification.

The basis of the first contention is that the statute unduly and arbitrarily interferes with the liberty of two adult persons to make a contract of employment for themselves. The answer of the State is that night work of the kind prohibited, so injuriously affects the physical condition of women, and so threatens to impair their peculiar and natural functions, and so exposes them to the dangers and menaces incident to night life in large cities, that a statute prohibiting such work falls within the police power of the State to preserve and promote the public health and welfare. The legislature had before it a mass of information from which it concluded that night work is substantially and especially detrimental to the health of women. We cannot say that the conclusion is without warrant. The loss of restful night’s sleep can not be fully made up by sleep in the day time, especially in busy cities, subject to the disturbances incident to modern life. The injurious consequences were thought by the legislature to bear more heavily against women than men, and, considering their more delicate organism, there would seem to be good reason for so thinking. The fact, assuming it to be such, properly may be made the basis of legislation applicable only to women (pp. 293-294).

Finally, in Goesaert v. Cleary (1948), the American Supreme Court upheld a Michigan statute prohibiting a woman from working as a licensed bartender unless she is the wife or


daughter of the male owner of a licensed liquor establishment. Justice Frankfurter opined that bartending by women may give rise to moral and social problems against which the legislature may appropriately devise preventive measures.

Michigan evidently believes that the oversight assured through ownership of a bar by a barmaid’s husband or father minimizes hazards that may confront a barmaid without such protecting oversight. This Court is certainly not in a position to gainsay such belief by the Michigan legislature. If it is entertainable, as we think it is, Michigan has not violated its duty to afford equal protection of its laws. We cannot cross-examine either actually or argumentatively the mind of Michigan legislators nor question their motives. Since the line they have drawn is not without a basis in reason, we cannot give ear to the suggestion that the real impulse behind this legislation was an unchivalrous desire of male bartenders to try to monopolize the calling (pp. 466-467).

The Civil Rights Act of 1964 - the Road to Reversal of Protective State Laws

There is no doubt that even the most freedom-

loving nation on the face of the earth, had a “long and unfortunate history” of sex discrimination traditionally “rationalized by an attitude of romantic paternalism which, in practical effect, put women not on a pedestal, but in a cage” to borrow from Justice Brennan in Frontiero v. Richardson (1973). The foregoing cases are but a few of those that reached the American Supreme Court while there are countless others decided in the light of the same principles by lower courts based on State laws prescribing minimum wages and maximum working hours, prohibiting nightwork, prescribing occupational as well as weightlifting limitations, prescribing mandatory leaves before and after childbirth, requiring mandatory rest and meal periods, and requiring physical facilities, such as

suitable seats, lunch rooms, dressing rooms, and toilet rooms for women. Such were considered most appropriate response to the clamor of social reformists towards the end of the 19th century that bore witness to the unprecedented entry of working women in the labor force brought about by rising trends in commerce, finance and industry. Unfortunately, many of these working women were unskilled and unprotected by labor unions and fell easy prey to exploitative employers, hence, the perceived need for the government to intervene for their protection.

A broad spectrum of social reformers - suffragists, labor-oriented liberals and socialists, settlement house workers, and others - fought for passage of these protective labor laws for women from the turn of the century until after World War I, with very little doubt about the correctness of their cause. It was self-evident to them that women were among the worst-exploited and lowest-paid workers in industry, and that this injustice was directly related to the fact that they were women; it was all the more offensive because of women’s roles as wives and mothers of the coming generation (Lehler, 1987).

Enlightenment must have dawned in the 1960’s as the wisdom of paternalism began to be questioned and the propriety of according women special privileges examined closer. If female workers must be protected from exploitative employers by establishing minimum wages and maximum working hours, shouldn’t the same protection be extended to male workers? If nightwork prohibition results in less employment opportunities for women compared with men, shouldn’t the rule be scrapped altogether? The shift from paternalism to equal rights has begun.

In 1963, the Equal Pay Act abolished wage disparity on the basis of sex. Employers were mandated to grant equal pay for equal work on jobs the performance of which requires equal


skill, effort, and responsibility, and which are performed under similar working conditions, except only when the pay differential is due to the implementation of a valid seniority or merit system, a system which measures earnings by quantity or quality of production, or when such is based on any other factor other than sex. This was to be followed shortly by the passage of the Civil Rights Act of 1964.

When first introduced before the House of Representatives, the then Civil Rights Bill made no mention of equal rights for women but, as history would have it, Representative Howard Smith from the State of Virginia, a staunch supporter of racial segregation, proposed such amendment with the intention of causing the Bill’s immediate demise. However, the strategy failed and the proscription on discrimination on the basis of sex became an integral part of the Civil Rights Act of 1964, dealing a severe blow to protective state laws. Specifically, Title VII of the said Act declares it an unlawful employment practice for an employer -

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin. As of 1964, forty states as well as the District

of Columbia had maximum daily or weekly hour laws for women. These were eventually repealed by State legislatures, invalidated by the judiciary for being in conflict with Federal law, or rendered ineffective though State attorney general opinions

or administrative rulings. Almost all States with minimum wage laws originally intended to protect women and minors started to extend coverage to male workers with the exception of Colorado, Utah and Wisconsin. Similarly, States that provided meal and rest periods as well as special physical facilities for women required employers to extend the same privilege to men unless precluded by business necessity, in which case, employers were not required to provide them for members of either sex. Among the last few States that retained provisions for meal periods exclusively for women were Arkansas, California, Colorado, Kansas, Louisiana, New Mexico, Rhode Island and Utah. The remaining States that provided rest periods exclusively for women were Arkansas, California, Colorado, Utah and Wyoming. Nightwork limitations for women were lifted in all but four States - California, Kansas, Rhode Island and Utah - as well as in Puerto Rico. Wyoming remained as the only State prohibiting women from working in mines. Similarly, Puerto Rico was left alone in prescribing specific weightlifting limitations at forty-four pounds for women and at one hundred eleven pounds for men. Finally, New York held the distinction of being the only State prohibiting women from working for a period of four weeks after childbirth (Women’s Bureau, U.S. Department of Labor, 1976).

Certainly, the enactment of the Civil Rights Act of 1964 was the turning point that transformed State laws and practices towards equal protection. But the Act was not the proverbial cure-all potion specially when pregnancy and childbirth became relevant. The proper interpretation of the Equal Protection Clause vis-à-vis Title VII was the pressing issue in cases such as Geduldig v. Aiello (1974) and General Electric Co. v. Gilbert (1976) where the Supreme Court ruled that state and private employers, respectively, can deny disability benefits for pregnancy partly because of fiscal concerns1 and partly because pregnancy is considered an “extra”, an additional risk unique to women, hence, its exclusion from disability coverage does not violate equal protection.


In Geduldig, the Court said that California’s disability insurance program divides potential recipients into two groups – pregnant women and non-pregnant persons. While the excluded group is exclusively female, the second group includes both men and women. The fiscal and actuarial benefits of the program thus accrue to members of both sex.

In Gilbert, the Court justified its conclusion by explaining that under the employer-sponsored sickness and accident benefits package, there was no risk from which men were protected while women were not. Similarly, there was no risk from which women were protected while men were not, hence, the absence of impermissible discrimination.

Verily, Geduldig and Gilbert attracted a barrage of criticisms that ultimately led to the passage of the Pregnancy Discrimination Act.

The Proper approach to Pregnancy

In 1978, Title VII of the Civil Rights Act

of 1964 was amended by the passage of the Pregnancy Discrimination Act to prohibit sex discrimination on the basis of pregnancy. Specifically, it brought pregnancy, childbirth, or related medical conditions within the meaning of discrimination “because of sex” or “on the basis of sex”. Moreover, it expressly mandated that women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work.

In the popular case of International Union, UAW v. Johnson Controls, Inc. (1991), a fetal-protection policy adopted by a battery manufacturing company that precluded women who are pregnant or who are capable of bearing children from placement in jobs involving lead exposure was struck down for being in violation of the Pregnancy Discrimination Act. The Supreme Court, speaking through Justice Blackmun, ruled that notwithstanding employers’ professed moral and ethical concerns about the

welfare of the next generation, “decisions about the welfare of future children must be left to the parents who conceive, bear, support, and raise them rather than to the employers who hire those parents.” It noted in no uncertain terms that “concern for a woman’s existing or potential offspring historically has been the excuse for denying women equal employment opportunities”. It bluntly stated that “employers are not prevented from having a conscience” but politely implied that they are, however, warned against pretentious magnanimity - depriving female workers of employment opportunities in the guise of protecting them and their unborn babies from harm while refusing to clean up the workplace2 where male workers are exposed to just as much risk.3

True enough, Title VII has created the so-called BFOQ exemption - an employer may discriminate on the basis of sex if the same is a bona fide occupational qualification reasonably necessary to the normal operation of its particular business or enterprise. The Supreme Court cited its earlier ruling in Dothard v. Rawlinson (1977) as an example, where sex discrimination was tolerated because sex was reasonably related to the employee’s ability to do the job, that of maintaining prison security. Indeed, the job of maintaining order in a maximum security facility where a number of inmates are serving sentence for grievous sexual offenses may pose personal danger to a female guard but that alone does not justify discrimination. Instead, it is the real risks of safety to others that might result if violence broke out owing to the fact that the guard is a woman that justifies the decision to render her ineligible to hold the job.

In a similar vein, the Supreme Court cited a number of cases (Harris v. Pan American World Airways, 1980; Burwell v. Eastern Air Lines, Inc., 1980; Condit v. United Air Lines, Inc., 1977; In re: National Airlines, Inc., 1977) where layoffs of pregnant flight attendants by airline companies at different points during the first five months of pregnancy were declared valid on the ground that the employer’s policy was necessary to ensure the safety of passengers. It is not the inconvenience


that may be felt by a woman heavy with a child while maneuvering a beverage cart through the narrow aisles of the plane, nor the possible danger of air pressure on her unborn baby, that justified the layoff of pregnant flight attendants. Instead, it is the inability to adequately fulfill the essential duties of the job - to look after the safety of the passengers on board at all times, including the ability to execute emergency evacuation procedures when necessary.

Thus, the Supreme Court held that the safety exception is limited to instances in which sex or pregnancy actually interferes with the employee’s ability to perform the job.4 Similarly, the legislative history of the Pregnancy Discrimination Act could not be any clearer -

Under this bill, the treatment of pregnant women in covered employment must focus not on their condition alone but on the actual effects of that condition on their ability to work. Pregnant women who are able to work must be permitted to work on the same conditions as other employees… Under this bill, employers will no longer be permitted to force women who become pregnant to stop working regardless of their ability to continue (p. 205).

Duty-bound, the American Supreme Court ruled -

It is no more appropriate for the courts than it is for individual employers to decide whether a woman’s reproductive role is more important to herself and her family than her economic role. Congress has left this choice to the woman as hers to make (p. 211). Another case worth looking at is Newport

News Shipbuilding and Dry Dock v. EEOC (1983). Here, the employer implemented a health insurance plan that covered its employees as well as their dependents. While the plan provided

equally extensive coverage for all medical conditions requiring hospitalization for both its male and female employees along with their spouses, a lower amount of benefit was granted in case of hospitalization due to pregnancy of the wives of its male employees. The Supreme Court ruled that the plan unlawfully gives married male employees a benefit package for their dependents that is less inclusive than the dependency coverage provided to married female employees.5 The Pregnancy Discrimination Act makes clear that it is discriminatory to treat pregnancy-related conditions less favorably than other medical conditions.

The ruling in Wimberly v. Labor and Industrial Relations Commission of Missouri (1987) completes the scenario.

After having been employed by the J.C. Penney Company for approximately three years, Wimberly requested a leave of absence on account of her pregnancy which was granted by the company but without guaranty of reinstatement. When the employee sought to return to work, she was told that there were no positions open, prompting her to file a claim for unemployment benefits which was denied by Missouri’s Labor and Industrial Relations Commission.

The Federal Unemployment Tax Act under which Wimberly was seeking relief envisions a cooperative federal-state program of benefits to unemployed workers. It establishes certain minimum federal standards that must be satisfied in order for a State to participate in the program, among which is the standard at issue in this case that “no person shall be denied compensation under such State law solely on the basis of pregnancy or termination of pregnancy.” Wimberly argued that the denial of her claim for unemployment benefits was a violation of this standard.

Apart from the aforementioned minimum federal standards, States are granted discretion under the Act to promulgate rules that will govern the administration of unemployment compensation programs in their respective territories. It is common to see the implementation of a three-part test to qualify claimants for the benefit -


First, all States require claimants to earn a specified amount of wages or to work a specified number of weeks in covered employment during a 1-year base period in order to be entitled to receive benefits. Second, all States require claimants to be “eligible” for benefits, that is, they must be able to work and available for work. Third, claimants who satisfy these requirements may be “disqualified” for reasons set forth in state law. The most common reasons for disqualification under state unemployment compensation laws are voluntarily leaving the job without good cause, being discharged for misconduct, and refusing suitable work (p. 515).

Under the third part of the test, the State of Missouri deemed it necessary to disqualify claimants who have “left work voluntarily without good cause attributable to their work or their employer”. Wimberly failed under this criterion because her pregnancy was obviously a cause not attributable to her work nor to her employer but to her own choice.6

The Supreme Court, speaking through Justice O’ Connor, held that the Federal Unemployment Tax Act does not prohibit a State from disqualifying a claimant who leaves her job because of pregnancy where the State imposes the same disqualification on all claimants who leave their jobs for a reason not causally connected to their work or their employer. Both the legislative history and the Federal Department of Labor’s interpretation of the statute indicate that the same was intended only to forbid a State from singling out pregnancy for disadvantageous treatment, but was not intended to compel a State to afford preferential treatment for women on account of pregnancy.7

Maternity Leave or Parental Leave? A mandatory maternity leave rule requiring a

pregnant public school teacher in Cleveland, Ohio to cease teaching five months before the expected

birth of her child and to resume work no earlier than the beginning of the next school semester after her child is three months old was declared unconstitutional in the case of Cleveland Board of Education v. La Fleur (1974). Writing for the majority of the Court, Justice Stewart reiterated the doctrine that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment. By acting to penalize the pregnant teacher for deciding to bear a child, overly restrictive maternity leave regulations can constitute a heavy burden on the exercise of these protected freedoms.

The mandatory termination provisions of the Cleveland and Chesterfield County rules surely operate to insulate the classroom from the presence of potentially incapacitated pregnant teachers. But the question is whether the rules sweep too broadly. That question must be answered in the affirmative, for the provisions amount to a conclusive presumption that every pregnant teacher who reaches the fifth or sixth month of pregnancy is physically incapable of continuing. There is no individualized determination by the teacher’s doctor -- or the school board’s -- as to any particular teacher’s ability to continue at her job.

xxx xxx xxx…[T]he ability of any particular pregnant woman to continue at work past any fixed time in her pregnancy is very much an individual matter. Even assuming, arguendo, that there are some women who would be physically unable to work past the particular cutoff dates embodied in the challenged rules, it is evident that there are large numbers of teachers who are fully capable of continuing work for longer than the Cleveland and Chesterfield County regulations will allow. Thus, the conclusive presumption embodied in these rules, like that in Vlandis, is neither “necessarily


[nor] universally true,” and is violative of the Due Process Clause.

xxx xxx xxxIt is [likewise] clear that the factual hypothesis of such a presumption -- that no mother is physically fit to return to work until her child reaches the age of three months -- is neither necessarily nor universally true… Of course, it may be that the Cleveland rule is based upon another theory -- that new mothers are too busy with their children within the first three months to allow a return to work. Viewed in that light, the rule remains a conclusive presumption, whose underlying factual assumptions can hardly be said to be universally valid (pp. 644, 645-646, 650).

In 1993, the Family and Medical Leave Act (FMLA) was passed by the American Legislature anchored on the principle that joint participation of both fathers and mothers in early childrearing and in the care of family members who have serious health conditions is of paramount importance. Congress formally acknowledged that due to the nature of the roles of men and women in American society, the primary responsibility for family caretaking often falls on women, and such responsibility affects the working lives of women more than it affects the working lives of men. As a result, employment standards that apply to one gender only have serious potential for encouraging employers to discriminate against employees and applicants for employment who are of that gender. Thus, among the declared purposes of the FMLA is to minimize the potential for employment discrimination on the basis of sex by ensuring generally that leave is available for eligible medical reasons, including maternity-related disability, and for compelling family reasons, on a gender-neutral basis; and to promote the goal of equal employment opportunity for women and men, pursuant to the Equal Protection Clause of the Fourteenth Amendment.

The FMLA entitles eligible employees of covered employers to take an unpaid leave up to a total of twelve workweeks within a twelve-month period for one or more of the following:

a. the birth of a child and to care for the newborn child within one year of birth;

b. the placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement;

c. to care for the employee’s spouse, child, or parent who has a serious health condition;

d. a serious health condition that makes the employee unable to perform the essential functions of his or her job.

The statute guarantees that upon return

from such leave, the eligible employee shall either be restored to the same position held when the leave commenced or be restored to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment.

The constitutionality of the FMLA was challenged, and upheld, in the case of Nevada v. Hibbs (2003). The main issue was whether the State of Nevada is immune from a suit instituted by a state employee in federal court for violation of the FMLA. The Supreme Court, through Chief Justice Rehnquist, ruled in the negative and proceeded to make a detailed explanation of the legislative history of the FMLA. He noted that while many States offered women extended maternity leave that far exceeded8 the typical four- to eight-week period of physical disability due to pregnancy and childbirth, very few granted men a parallel benefit. Such differential leave policies were not attributable to any differential physical needs of men and women, but rather to the pervasive sex-role stereotype that caring for family members is women’s work; that women’s family duties trump those of the workplace. Against the foregoing backdrop, Chief Justice


Rehnquist concluded that Congress is justified in enacting a “prophylactic legislation” -

…Historically, denial or curtailment of women’s employment opportunities has been traceable directly to the pervasive presumption that women are mothers first, and workers second. This prevailing ideology about women’s roles has in turn justified discrimination against women when they are mothers or mothers-to-be. Stereotypes about women’s domestic roles are reinforced by parallel stereotypes presuming a lack of domestic responsibilities for men. Because employers continued to regard the family as the woman’s domain, they often denied men similar accommodations or discouraged them from taking leave. These mutually reinforcing stereotypes created a self-fulfilling cycle of discrimination that forced women to continue to assume the role of primary family caregiver, and fostered employers’ stereotypical views about women’s commitment to work and their value as employees. Those perceptions, in turn, Congress reasoned, lead to subtle discrimination that may be difficult to detect on a case-by-case basis.

xxx xxx xxx By creating an across-the-board, routine employment benefit for all eligible employees, Congress sought to ensure that family-care leave would no longer be stigmatized as an inordinate drain on the workplace caused by female employees, and that employers could not evade leave obligations simply by hiring men. By setting a minimum standard of family leave for all eligible employees, irrespective of gender, the FMLA attacks the formerly state-sanctioned stereotype that only women are responsible for family caregiving, thereby reducing employers’ incentives to engage in discrimination by basing hiring and

promotion decisions on stereotypes (pp. 736, 737).

conclusion

A very recent development in health care reform in the United States is the Patient Protection and Affordable Care Act signed into law by President Barack Obama on March 23, 2010. A remarkable provision of this Act requires employers to allow their nursing employees to take reasonable breaks from work to express breast milk. Employers are further required to provide a suitable place for this purpose, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public. This privilege may be availed by a female employee whenever necessary within a period of one year from the birth of her child but an employer with less than fifty employees is exempted from this requirement if the same would impose undue hardship by causing significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the business. Likewise, an employer is not required to compensate an employee receiving reasonable break time for any work time spent for this purpose.

The Philippine counterpart was signed into law a year earlier, the Expanded Breastfeeding Promotion Act of 2009. The said law similarly requires the establishment of lactation stations which are not located within a toilet and equipped with necessary facilities, such as a lavatory for hand-washing, refrigeration or appropriate cooling facilities for storing expressed breastmilk, electrical outlets for breast pumps, a small table and comfortable seats. Interestingly, the lactation period provided in the Philippine statute are counted as compensable worked hours. Nursing employees are granted paid breaks at intervals set by the Department of Labor that should not be less than a total of forty minutes for every eight-hour working period.

While the two laws have identical objectives, that of recognizing the unique need of working


mothers to express breast milk for their newborn babies, the means employed by the two jurisdictions are remarkably different. Again, the Philippines seems to have blurred the boundaries between acknowledgment of reality and misplaced generosity. Forcing employers to bear the economic cost of paid lactation breaks is likely to create a disincentive for hiring women workers.

The Philippine approach towards breastfeeding is yet another indication that paternalism remains at the core of the country’s labor policies. The ruling of the Philippine Supreme Court in the case of Philippine Association of Service Exporters, Inc. discussed earlier in this work smacks of the same paternalist stance. It is sad, to say the least, to see such unanimous en banc decision at a time when the Philippine Supreme Court had three incumbent female justices who were all nationally acclaimed for upholding gender equality.9

In any event, the case could have been decided in a more gender-neutral manner. While it may be true that some female overseas workers were subjected to torture and abuse and the State is justified in seeking to alleviate their plight, such experience is not shared by all female overseas workers, hence, a sweeping generalization could not be made without infringing on the liberties of other women not similarly situated. Indeed, countless female Filipinos have found gainful employment abroad that uplifted their economic status as well as that of their families, not to mention, that of the country. The constitutional guaranty of liberty, which includes the liberty to travel, seek employment and pursue personal growth and development, is undeniably an individual right that should not be unduly restrained by statistical generalizations that may be true for most but not for all.

Moreover, by deciding the way it did, the Supreme Court extended its stamp of approval to the female stereotype of fragility and vulnerability as opposed to men who are perceived as naturally endowed with adequate ability to guard their own safety. Certainly, such ruling does not constitute good precedent for future cases.

The Philippines is a proud signatory of the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) which entered into force as an international treaty on September 3, 1981, even predating the country’s present Constitution. Among others, Article 11 of the Convention mandates its States-Parties to take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, “on a basis of equality of men and women,” the same rights to employment opportunities, remuneration, promotion, job security, and all benefits and conditions of service, including social security, health and workplace safety, as well as in safeguarding the function of reproduction. The same Article continued to provide that protective legislation related to the foregoing “shall be reviewed periodically in the light of scientific and technological knowledge and shall be revised, repealed or extended as necessary.”

Today, almost three decades after, the suggested review seems to be long overdue. For instance, the Philippine Government acknowledged in its most recent Country Report on the implementation of the Convention in 2006 that while the nightwork prohibition was aimed to protect women workers, it actually “discriminates against women, as it does not address the real issue of security for women working at night” (par. 351). As earlier noted, the Magna Carta of Women passed in 2009 did nothing to correct this. In the same Country Report, the Philippine Government further acknowledged that –

[i]n many places in the country, the responsibility of managing or running homes and ministering to family needs rests with women… In households with young children that require intensive care, women’s home production time is at least double that of men. Adding this to the hours worked by women in wage and/or market production activities results to the much-cited women’s double work burden (par. 85-c).


In simple, straightforward terms, the protectionist labor policies in Philippine law and jurisprudence have failed, ironically, to fully protect the working Filipino woman, because they have kept her from succeeding in the workplace by keeping her longer at home. Her ability for motherhood had been the constant excuse for sheltered treatment, forgetting that “in safeguarding the function of reproduction” the Convention envisioned equality of men and women and recognition of “the same rights and responsibilities as parents, irrespective of their marital status, in matters relating to their children” (Art. 15-1-d). Indeed, a distinction should be drawn between reasonable accommodations that take into consideration a woman’s childbearing function on the one hand, as when the government recognizes her special nutritional needs by providing supplemental food benefits,10 and impermissible grant of privileges based on gender stereotypes attached to the function of childrearing on the other, as in the case of mandatory maternity leaves that far exceed the actual period of disability.

For quite a time, the Filipino woman has been considered a “special worker”, much like a minor that needs constant guidance, or a person suffering from illness that needs to be treated with a greater degree of care. But, just like such minor who, with the passage of time, reaches sufficient maturity to stand on its own, and just like the sick person who recovers strength and vitality with proper medication, a woman should be empowered with sufficient resources to reach her full potentials in due time. Sadly, Philippine labor law policies consider her instead a damsel in distress in endless wait for her knight in shining armor.

Not too long ago, American policies were just as protective but soon enough they realized that the consequence of misplaced chivalry is not too far from slavery, hence, the constant struggle to achieve genuine gender equality up to the present. Significant victories have so far been achieved but there remain a lot of challenges to hurdle.11 Today, the world of work in the United States is confronted with more contemporary problems such as the so-called “glass ceiling” that limit

women’s capacity to succeed in the workplace.12 Commentators even say that most women never get near it at all as they are trapped by the maternal wall.13 Likewise, a lot of criticisms are hurled against the Family and Medical Leave Act for its failure to provide paid maternity leaves.14 Nonetheless, America strives to be true to its guarantees of liberty and equal protection for her sons and daughters.

With a colorful history of almost forty years under American rule, it is not imprecise to say that the Philippines had a valuable opportunity to learn from a good mentor. Indeed, it should have.

noTes

1 The cases were decided during the 1970’s when inflation, unemployment, overproduction and rising energy costs plagued the American economy. Scott A. Caplan-Cotenoff suggests that the Court may have felt that requiring employers to include pregnancy in disability plans might unduly burden them financially (Caplan-Cotenoff, 1987).

2 Matthew F. Weil points out that employers must seek facially neutral, non-discriminatory options if fetal protection remains a professed aim, whether motivated by fear of liability or of the damage that may be caused. He agrees that a more attractive option, when the economics of the situation are not prohibitive, is to clean up the workplace and to provide complete information on risk exposures to dangerous chemicals so that women employees can make a learned choice (Weil, 1993).

3 Sheryll Rosensky Miller suggests that the rationale behind Johnson Controls’ exclusive application of the safety measure for female employees was rooted in the generalization that women need guidance in making decisions regarding personal choices while men do not, an unacceptable gender stereotype (Miller, 1993).

4 But what about a pregnant woman who is temporarily unable to perform some, but not all, her assigned job duties and wants or needs to continue working through her pregnancy? Is there a right to necessary accommodations? For a discussion of the desirability and legality of work modification, colloquially referred to as light duty, see Grossman, J. L. & Thomas, G. L. (2009), Making Pregnancy Work : Overcoming the Pregnancy Discrimination Act’s Capacity-Based Model, Yale Journal of Law and Feminism, 21, 15-50.


5 In the view of Sherri L. Thornton, the decision rendered in Newport equalizes the monetary burden each sex must carry with regard to the support of their dependents during these times of economic strife and hardship when there is constant struggle for American employees to achieve financial stability. It reflected an overall concern of the judicial system to right the wrongs of unequal treatment between the sexes wherever apparent in employment-related matters (Thornton, 1984).

6 Another way to look at it is from the point of view of pro-choice principles. Unlike other short-time non-occupational disabilities, pregnancy disability is a risk that can either be intentionally assumed or entirely eliminated. Under the present liberal state of laws on contraception and abortion, women are legally free to decide when and whether to remain pregnant, even if they do not initially become pregnant by choice, as in the case of rape or incest (Hylton, 1991).

7 In a lecture that she presented at the Willamette University College of Law in Salem, Oregon on September 12, 2008, Justice Ruth Bader Ginsburg made an interesting distinction between the pregnant woman ready, willing, and able to work, and the woman who sought benefits for a disability caused by pregnancy. While the former met a reality check – she sought, and was prepared to take on, a day’s work for a day’s pay; the latter sparks a doubt – was she really a member of the labor force, or was a drop out who, post child-birth, would retire from the paid labor force to devote herself to the care of her home and family? (Ginsburg, 2009).

8 The earlier case of California Federal Savings & Loan Assn. v. Guerra (1987), may be worthy to recall at this juncture where the Supreme Court upheld the validity of a provision of the California Fair Employment and Housing Act which permits employers to provide unpaid leave up to four months to employees disabled by pregnancy against the contention that it violated the Pregnancy Discrimination Act for giving special treatment to pregnant employees. The Supreme Court emphasized that the statute is narrowly drawn to cover only the period of actual physical disability on account of pregnancy, childbirth, or related medical conditions. Accordingly, unlike the protective labor legislation prevalent earlier in this century, it does not reflect archaic or stereotypical notions about pregnancy and the abilities of pregnant workers. While the law does not discriminate against a woman’s childbearing function, it affirms that childrearing is a different realm which is not exclusively feminine in nature. For a more comprehensive discussion of this point, see Jacobson, M. (1988) Pregnancy and Employment: Three Approaches to Equal Opportunity, Boston University Law Review, 68, 1019-1045.

See also Law, S.A. (1983), Rethinking Sex and the Constitution, University of Pennsylvania Law Review, 132, 955-1040 for her proposal to develop a concept of equality that distinguishes between reproductive biological difference and cultural generalization and that prohibits regulation of reproductive biology whenever it oppresses women or reinforces cultural sex-role stereotypes.

9 Of the fifteen-member Philippine Supreme Court, two male justices were on leave at the time of the promulgation of the decision. Of the thirteen who voted unanimously, three were female justices who were purportedly supporters of gender equality. Never before had the Philippine Supreme Court had such number of female incumbent justices at the same time.

10 Under the Special Supplemental Food Program for Women, Infants and Children (WIC), pregnant and lactating women who are considered nutritional risks and belong to families with inadequate income are provided with nutritional supplements through vouchers or food packages as well as some preventive health care, educational programs and referrals.

11 See Barnard, T.H. & Rapp, A.L. (2005) Are We There Yet? Forty Years after the Passage of the Civil Rights Act : Revolution in the Workforce and the Unfulfilled Promises that Remain, Hofstra Labor and Employment Journal, 22, 627-670.

12 A term first popularized in a Wall Street Journal article in 1986 referring to invisible structural barriers within the workforce that prevent the advancement of women and minorities (Blumenthal, 1986).

13 A term that refers to discrimination suffered by women after childbirth. Just as pregnant women are perceived to be less committed to their jobs and less available, new mothers are viewed in the same stereotypical way. One study suggests that employers believe there is a “lack of fit” between career and family because, in order to be good parents, working mothers must spend more time at home than their male colleagues, and thus necessarily, less time at work. This perceived disconnect between career and family may be aggravated when women decide to adopt a part-time schedule, tending to confirm that her primary role is that of a homemaker. As a result, new mothers may be deprived of valuable career opportunities because an employer assumes, without asking, that they are less available for business travel or taxing assignments. Although the motivation for this stereotyping may be construed as benevolent, the employer is nevertheless depriving the woman of valuable work opportunities in response to stereotypes about what a good mother should want, rather than permitting her to make those determinations herself (Huhta, Westfall & Williams, 2003).


14 Most European and Western countries provide paid leave, including Austria, Belgium, Canada, Denmark, Finland, France, Germany, Greece, Ireland, Italy, the Netherlands, Norway, Portugal, Spain, Sweden, Switzerland, and the United Kingdom. The number of weeks ranges from eight (Switzerland) to twenty-six (France), and the percentage of the woman’s regular pay that she receives on leave ranges from 50% to 100%. Some countries provide paid maternity leave through state social security systems while others require employers to pay the leave benefits. The United States does neither, and in this particular practice it is in the company of countries such as Lesotho, Liberia, Swaziland and Papua New Guinea (Anthony, 2008).

reFerences

A. Philippine Laws, Rules and Jurisprudence

1987 Philippine Constitution Expanded Breastfeeding Promotion Act, Republic

Act No. 10028Labor Code of the Philippines, Presidential

Decree No. 442Magna Carta of Women, Republic Act No. 9710Paternity Leave Act, Republic Act No. 8187Social Security Act, Republic Act No. 8282Implementing Rules and Regulations of the

Magna Carta of WomenOmnibus Civil Service RulesPhilippine Association of Service Exporters, Inc.

v. Drilon,163 SCRA 386 (1988)

B. American Law and Jurisprudence

Equal Pay Act, 1963 Civil Rights Act, 1964 Special Supplemental Food Program for Women,

Infants and Children, 1981 Family and Medical Leave Act, 1993Patient Protection and Affordable Care Act,

2010Bradwell v. Illinois, 83 U.S. 130 (1873)California Federal Savings & Loan Assn. v.

Guerra, 479 US 272 (1987)Cleveland Board of Education v. La Fleur, 414

U.S. 632 (1974)

Dothard v. Rawlinson, 433 U.S. 321 (1977)Frontiero v. Richardson, 411 U.S. 677 (1973)Geduldig v. Aiello, 417 U.S. 484 (1974)General Electric Co. v. Gilbert, 429 U.S. 125

(1976)Goesaert v. Cleary, 335 U.S. 464 (1948)International Union, UAW v. Johnson Controls,

Inc., 499 U.S. 187 (1991)Muller v. Oregon, 208 U.S. 412 (1908)Nevada v. Hibbs, 538 U.S. 721 (2003)Newport News Shipbuilding and Dry Dock v.

EEOC, 462 U.S. 669 (1983)Radice v. New York, 264 U.S. 292 (1924)Wimberly v. Labor & Industrial Relations

Commission of Missouri, 479 U.S. 511 (1987)

C. International Instruments

Convention on the Elimination of All Forms of Discrimination Against Women, 1979

Combined Fifth & Sixth Periodic Country Report, Republic of the Philippines, 2006

International Labour Organization Convention on Nightwork, 1953

D. Books and Journal ArticlesAnthony, D.J. (2008), The Hidden Harms of

the Family and Medical Leave Act: Gender-Neutral versus Gender-Equal, American University Journal of Gender, Social Policy and Law, 16, 459-501.

Caplan-Cotenoff, S.A. (1987) Parental Leave: The Need for a National Policy to Foster Sexual Equality, American Journal of Law and Medicine, 13,71-104.

Ginsburg, R.B. (2009), Muller v. Oregon: One Hundred Years Later, Willamette Law Review, 45, 359-380.

Huhta, S.E., Westfall, E.S. and Williams, J.C. (2003), Litigating the Glass Ceiling and the Maternal Wall : Using Stereotyping and Cognitive Bias Evidence to Prove Gender Discrimination : Looking Forward and Back : Using the Pregnancy Discrimination Act and Discriminatory Gender / Pregnancy Stereotyping to Challenge Discrimination


Against New Mothers, Employee Rights and Employment Policy Journal, 7, 303-328.

Hylton, M.O. (1991), Parental Leaves and Poor Women: Paying the Price for Time Off, University of Pittsburgh Law Review, 52, 475-519.

Lehrer, S. (1987), Origins of Protective Labor Legislation for Women, 1905-1925. Albany NY: State University of New York Press.

Miller, S.R. (1993), From the Inception to the Aftermath of International Union, UAW v. Johnson Controls, Inc.: Achieving its Potential to Advance Women’s Employment Rights, Catholic University Law Review 43, 227-278.

Thornton, S.L. (1984), Title VII : The Equalization of Spousal Benefits in View of the Pregnancy Discrimination Act of 1978 Newport News Shipbuilding & Dry Dock Co. v. Equal Employment Opportunity Commission, Howard Law Journal, 27, 653-680.

Weil, M.F. (1993), Protecting Employees’ Fetuses from Workplace Hazards: Johnson Controls Narrows the Options, Berkeley Journal of Employment and Labor Law, 14, 142-178.

E. Periodicals

Blumenthal, K. (1986, March 24). Room at the Top, Wall Street Journal, 7D.

F. Others

Women’s Bureau, U.S. Dep’t Of Labor, Pamphlet No. 15, State Labor Laws In Transition : From Protection To Equal Status For Women (1976).

Romantic Paternalism in Philippine Labor Law: Revisiting the Tradition, Realizing its Folly and...

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