New Yahoo! (YHOO) Chief Executive Officer Marissa Mayer gave birth to a boy on Sept. 30. When Yahoo hired her in July, she was already in her third trimester. “My maternity leave will be a few weeks long, and I’ll work throughout it,” Mayer said at the time. Now that the kid is here, she’s sticking with that plan, which Time referred to as “blink-and-it’s-over” maternity leave.
The Wall Street Journal’s Allison Lichter wondered if Mayer’s decision will inspire “HR departments and heads of businesses to begin to expect other mothers” to eschew maternity leave, while Stew Friedman at the Huffington Post declared Mayer a “harbinger of social change.” But the idea that Mayer’s actions will have any social effect beyond dinner party discussion is somewhat absurd. There’s simply no comparing the picture for most American women pre- and postpartum with the rarefied situation in Mayer’s C-suite.
Let’s start with the fact that Mayer is a brand-new employee at Yahoo. Her “choice” to take a short maternity leave is being framed as just that: her decision. But the Family and Medical Leave Act (FMLA), which allows women 12 weeks of unpaid, job-protected maternity leave, doesn’t apply to workers who have been with a company for fewer than 12 months. (Yahoo hasn’t said whether Mayer would have been granted 12 weeks if she’d asked.)
Some have argued that Mayer’s wealth and status at Yahoo are what set her apart from other new mothers. As New York magazine’s Lisa Miller says, Mayer “will work out her conflicts, however difficult, with the luxury of more-than-ample resources.” Yet successful moms’ careers are more vulnerable than those at lower levels when it comes to maternity leave. That’s another FMLA loophole: If you’re in the top 10 percent of earners (a “key employee” in government legalese) and you take maternity leave, your company doesn’t have to reinstate you to your old job.
The flexibility of Mayer’s situation—it sounds like she’ll be able to work from home as needed—also doesn’t apply to many women. Take Jennifer Christiansen, an associate director of consumer marketing at Bayer (BAYN:GR), who had excellent reviews and even won an employee of the month award in June 2010. During her pregnancy, Christiansen inquired about joining Bayer’s job-share program, which would allow her more flexible hours. Her request was denied by a superior, who allegedly said, “I need to stop hiring women of reproductive age.” Christiansen alleges that she was fired while on maternity leave and is now part of a $100 million proposed class action against the pharmaceutical giant. Bayer denies the allegations.
In September, Democratic Senators Bob Casey Jr. of Pennsylvania and Jeanne Shaheen of New Hampshire co-sponsored the Pregnant Workers Fairness Act to help bridge the gap between women like Mayer and women like Christiansen. GovTrack, a website that follows pending legislation, gives the bill a dismal 6 percent chance of passing in the House, where it was introduced in May. Similar worker protection laws have been shot down by House Republicans.
Which brings us back to the argument that Marissa Mayer’s decision about maternity leave will somehow set a precedent—either good or bad—for working women everywhere. That’s unlikely, given the entrenched legal barriers. Perhaps Mayer’s choice has created such controversy because it makes the rest of us so painfully aware that we’re stuck without options at all.