35 hearing on s 110 851 supra note 24 at 3 fmla has

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35. Hearing on S. 110-851, supra note 24, at 3 ("FMLA has been good for businesses, as well, with lower turnover and a boost of morale, retention rates, productivity rates-ninety percent of employers told the Department of Labor in 2000 that they had a neutral or positive effect on the profits of their company."). 36. 29 U.S.C. § 2612(a)(1)(A)-(D), (c). Although FMLA also provides leave for medical reasons unrelated to pregnancy, the scope of this Comment is limited to an analysis of leave to care for a new child. 37. See Bhushan, supra note 2, at 685 (noting that the underlying purposes of the FMLA identified by Congress are based on ideals of gender- neutrality). 38. See Lauren J. Asher & Donna R. Lenhoff, Family and Medical Leave: Making Time for Family is Everyone's Business, 11 THE FUTURE OF CHILDREN 115, 115-16 (2001) (describing the origins of the FMLA and the recognized need to "establish a national family and medical leave that was comprehensive and gender-neutral"). 39. 29 U.S.C. § 2614(a)(1)-(2). 40. See id. § 2651(b) ("Nothing in this Act or any amendment made by this Act shall be construed to supersede any provision of any State or local law that provides greater family or medical leave rights than the rights established under this Act or any amendment made by this Act."). 20151
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HOUSTON JOURNAL OF INTERNATIONAL LAW family leave, all of which require payment of less than the employee's usual salary. 41 The stated purpose of FMLA includes facilitating work-family balance through "minimiz[ing] the potential for employment discrimination on the basis of sex by ensuring generally that leave is available ... on a gender-neutral basis; and... to promote the goal of equal employment opportunity for women and men . .. 42 This goal was affirmed by the U.S. Supreme Court, which has expressly recognized that FMLA was necessary to combat the longstanding stereotype that men are primary breadwinners and women are primary caregivers. 43 Because FMLA applies to both women and men, employers cannot avoid providing family leave simply by, for example, refusing to hire women. 44 A. Notable Problems with FMLA in Practice Despite some of the positive effects FMLA has had on encouraging work-family balance, it still fails to provide for American workers with families in a number of ways. FMLA's application only to employers with 50 or more employees, as well as its requirement that employees have worked for the employer for at least a year before taking leave, means that many employees are not covered by FMLA. 45 Further, because FMLA leave is unpaid, many employees who may be covered do not take leave because they cannot afford to do so. 46 Finally, although FMLA covers both mothers and fathers, the gender-neutral 41. WORLD ECON. FORUM, supra note 6, at 72 tbl.E1. 42. 29 U.S.C § 2601(b)(1),(4)-(5). 43. Nev. Dep't of Human Res. v. Hibbs, 538 U.S. 721, 736 (2003). While the Supreme Court's discussion of the purpose of FMLA is noteworthy, the primary holding of this case is beyond the scope of this Comment. In brief, the Court determined that state employees may recover monetary damages from an employer for violations of the family-care provision of FMLA. Id. at 724.
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  • Fall '17
  • David Capco
  • Biology, FMLA, ........., Leave, parental leave

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