On August 9, 2022, Serena Williams, the undeniable G.O.A.T., said “Farewell to Tennis On Her Own Terms—And in Her Own Words,” in an emotionally riveting article for Vogue magazine. In the article, Serena recounts a precious story of her five-year old daughter, Olympia, being asked what she wanted to be when she grew up. Olympia, unaware of her mother’s listening ears, said that she wanted to be a big sister. Apparently, Olympia is not shy about her very specific requests for a baby sister (little brothers need not apply), even when her parents are listening. Serena, the youngest of five sisters gets it. Olympia’s persistence has finally paid off. Serena has decided that she wants to grow her family. In doing so, she realized that this choice means that, she is “evolving away from tennis.”
Serena’s next words are brutally honest and ring true for too many working mothers today:
Believe me, I never wanted to have to choose between tennis and a family, I don’t think it’s fair. If I were a guy, I wouldn’t be writing this because I’d be out there playing and winning while my wife was doing the physical labor of expanding our family. Maybe I’d be more of a Tom Brady if I had the opportunity.
Even one of the greatest athletes in the world (who won the 2017 Australian Open while two months pregnant), could not escape birth complications (including a pulmonary embolism that nearly killed her and postpartum depression). Through it all, she never gave up the game. Serena now finds herself at a crossroads between continuing to grow the accomplishments section of her Wikipedia page or her family. She is choosing her family.
Serena is not the only mother choosing to leave the workforce and it is having a profound impact on the labor market. In fact, according to the U.S. Bureau of Labor Statistics, women’s participation in the labor market is the lowest it has been in 30 years. According to a 2020 study by McKinsey & Company and LeanIn.Org, one in three working mothers, particularly those with young children, said that they were considering downshifting their careers or dropping out of the workforce entirely. The COVID-19 Pandemic has exacerbated the exodus. Studies show that during the Pandemic mothers have been 3 times as likely as fathers to be responsible for most of the caregiving and housework. Mothers of color have been disproportionately affected. Latina mothers are 1.6 times more likely than their white counterparts to be responsible for all housework and childcare. Black mothers are twice as likely to be solely responsible for these duties.
Supporting working mothers goes beyond doing the right thing. It makes business sense. A 2019 McKinsey & Company study found that companies that were in the top quartile for gender diversity on executive teams were 25 percent more likely to have above-average profitability than companies in the fourth quartile. So, what can employers do to support and retain working mothers?
Employers must first ensure that they comply with federal, state, and local law.
First, employers with 15 or more employees are covered by Title VII of the Civil Rights Act of 1964 (“Title VII”). The Pregnancy Discrimination Act (“PDA”) amended Title VII to prohibit discrimination against applicants and employees on the basis of pregnancy, childbirth, and related medical conditions. The PDA prohibits employer discrimination based on pregnancy in all aspects of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits (e.g. leave and health insurance), and any other term or condition of employment.
Second, if an employee is temporarily unable to perform their job due to a medical condition related to pregnancy or childbirth, the PDA requires the employer to treat the employee the same way it would treat any other temporarily disabled employee. Pregnancy will generally not qualify as a disability under the Americans with Disabilities Act (“ADA”), but impairments related to pregnancy lasting longer than six months may qualify and require reasonable accommodation.
Third, under the Family and Medical Leave Act (“FMLA”) employers who have 50 or more employees on their payroll for 20 or more calendar work weeks must provide eligible new parents (including foster and adoptive parents) up to 12 weeks of leave (unpaid or paid if the employee has earned or accrued it) to care for the new child.
Fourth, under the Patient Protection and Affordable Care Act, employers must provide the following: 1) reasonable break time to express breast milk for period of 1 year from the birth of the child; and 2) a location (other than a restroom) shielded from view and free from coworker and public intrusion where an employee can express breast milk. However, employers with fewer than 50 employees are not required to comply with the lactation break time rule if doing so would impose an undue hardship by causing significant difficulty or expense (considering the business’s size, financial resources, nature, or structure).
Employers should also be aware that there may be state and local laws that provide additional requirements.
Finally, employers who want to attract and retain working mothers can offer paid parental leave, supplement childcare costs, and most importantly provide flexibility wherever feasible (including schedules and remote work).
Alyce Ogunsola is an attorney at FordHarrison.