Authors: Joan C. Williams, J. D., Washington College of Law, American University; Molly T. Tami, J. D., Center for Women's Studies, University of Cincinnati

Date: 10/28/03

Basic Concepts & Definitions

Modern workers often suffer adverse employment actions, such as termination, lack of promotion or lower pay, because of their family caregiving responsibilities. An important legal trend finds mothers- and fathers- challenging these adverse actions as unfair discrimination. Job practices that relate to hiring, promotion, and termination have been the subject of lawsuits alleging discriminatory treatment of pregnant women, women with children and men in the role of family caregiver. Through claims of gender discrimination and gender stereotyping, these cases make a number of distinct legal arguments for potential recovery under both federal and state law.

This legal trend conceptualizes the work/family conflict in a "discrimination" framework. The discrimination model, reflects the notion that workers have legal rights protecting them from adverse employment actions based on their family caregiver role (See Joan C. Williams & Nancy Segal, Beyond the Maternal Wall: Relief for Family Caregivers Who Are Discriminated Against on the Job, 26HARV. WOMEN'S L.J. 77(Spring 2003).) Lawsuits successfully brought under existing law challenge gender stereotypes that disadvantage employees who are also family caregivers. By interpreting the work/family conflict through the lens of discrimination, women and men who assume the role of family caregiver can begin to view their workplace disadvantages as reflecting discrimination rather than their own choices or their own personal inadequacies.

Importance of Topic to Work-Family Studies

Economists have documented the negative impact on women's economic stability caused by the lack of family friendly workplaces. (See e.g., Jane Waldfogel, The Family Gap for Young Women in the U.S. and Britain; 5 Employee Rts. & Emp. Pol'y J. 273 (2001); The Effects of Children on Women's Wages, 62 Am. Soc. Rev. 209 (1997); and Anne Crittenden, The Price of Motherhood (2001).) The traditional economic and ethical arguments in support of family friendly work environments are being joined by gender equality arguments emerging in the area of legal rights, which is the subject of this article. The potential for employer liability is starting to be seen as an integral part of a strategy for creating workplaces that are truly responsive to family caregivers' needs. The law helps fuel social change by shaping people's interpretations of who owes what to whom. As labor and employment practices are highly regulated by the law, legal developments in these areas reflect an on-going shift in the social understandings surrounding work.

The traditional notion that an employer is entitled to an "ideal worker," who works full time and overtime while supported by a flow of family work from a spouse, is being challenged by the model of the "balanced worker," who has other personal commitments and family obligations. While ethical grounds are often cited for this shift, employers are increasingly recognizing the economic justification, or the "business case," for adopting family friendly policies that improve the bottom line. These ethical and economic arguments are being joined by legal arguments addressing the "rights" of workers- women and men- who serve as family caregivers. Substantial awards and settlements are making employers take notice of what may prove a major new trend in gender discrimination law.

State of the Body of Knowledge

Legal theorists have typically assumed that the needs of family caregivers should be conceptualized within the framework of "accommodation." This formulation of the work/family conflict asks whether employers should be required to accommodate women's family responsibilities, even if such accommodation proves expensive (See, e.g., Kathryn Abrams, Gender Discrimination and the Transformation of Workplace Norms, 42 VAND. L. REV. 1183, 1220-26 (1989).) Several commentators have offered explicit arguments in favor of the accommodation model. This entry, however, argues that the "accommodation, though it's expensive" model is a flawed way to conceptualize work/family issues, and that the more helpful model is one of "discrimination, backed up by the business case" (Williams & Segal, 2003).

The Accommodation Model

Several variations of the accommodation model have been suggested. One commentator has recently argued that employers should have a duty to accommodate parental obligations that conflict with work obligations when this accommodation can be achieved without incurring an "undue hardship" (See Peggie R. Smith, Accommodating Routine Parental Obligations in an Era of Work-Family Conflict: Lessons From Religious Accommodations, 2001 WIS. L. REV. 1443, 1446 (2001).) The accommodation model that provides the best blueprint to address work/family concerns, according to this commentator, is the religious accommodation provision in the Title VII of the Civil Rights Acts of 1964. Several inherent problems exist with this proposed approach. First, it would be necessary to pass a new statute that specifically prohibits discrimination on grounds of parenting. Furthermore, this statute would need to be interpreted less narrowly by the courts than the religious accommodation requirement has been interpreted if this strategy was to prove effective.

Another model mentioned by several commentators is the Americans with Disabilities Act (ADA) (See Smith, at 1460-65; Laura Kessler, The Attachment Gap: Discrimination Law, Women's Cultural Caregiving, and the Limits of Economic and Liberal Legal Theory, 34 U. MICH. J.L. REFORM 371 (2001).) This proposal builds on a long line of articles that argue for accommodating pregnancy based on the ADA. A major drawback of the ADA model is the U.S. Supreme Court's narrow interpretation of its provisions. Moreover, individuals with disabilities should be accommodated to the maximum extent possible on a case by case basis, given the wide range of disabilities. In the work/family context, however, the key issue is whether workplaces will continue to be designed around the bodies and life patterns of men, with "accommodations" offered to women- or whether workplace norms will be redesigned to take into account the reproductive and social roles of women as well as men. What women need is not accommodation, but equality. Equality is not achieved when women are offered equal opportunity to live up to ideals framed around men.

Another difficulty with the "accommodation" model lies with the perpetuation of the conventional wisdom that "accommodating" women costs employers money (Jolls, 2001). The rapidly developing literature on the business case for work/family policies finds otherwise. As discussed extensively by one co-author in another context, family-friendly policies constitute potentially effective cost-saving techniques for businesses (Williams, Unbending Gender at 84-94). Key elements of the business case in this context include not only costs of attrition, but recruiting, quality control, increase in productivity, and decreases in absenteeism. Once the focus is shifted away from employer-financed maternity leaves to family-responsive workplaces, the business case for restructuring workplaces to take family care into account can be well documented.

The Discrimination Model

Because the accommodation model presents significant drawbacks to alleviating the work/family conflict, the model should be replaced with a new theoretical formulation that links "discrimination" to the business case. The discrimination model is persuasive for the simple reason that difficulties experienced by family caregivers fall into documented patterns of bias. Specific gender stereotypes emerge to disadvantage family caregivers at work. Mothers with caregiving responsibilities are assumed to be less present, less competent, and less committed than they really are. A supervisor to a woman eight months pregnant told her: "I was going to put you in charge of that office, but look at you now" (Moore v. Alabama State University).

Motherhood is often seen as all-consuming, which has given rise to the perception that women cannot be good workers and good mothers. A Boston lawyer relates that "When I returned from maternity leave, I was given the work of a paralegal. I wanted to say, 'I had a baby, not a lobotomy'" (Williams, 2000). (See also Santiago-Ramos v. Centennial P.R. Wireless Corp; Trezza v. Hartford, Inc.).

Stereotyping affects fathers as well as mothers. Fathers who assume, or seek to assume, active caregiving roles are not viewed as good fathers- often they are treated as losers (Malin, 1994). They are performing gender in an unconventional fashion that finds them living up neither to the ideal-worker norm nor ideals of masculinity, in which manliness is closely linked with work success. A striking element found in many of the cases alleging discrimination against men as well as women engaged in family care is the openness of gender stereotyping that views mothers as not belonging in the workplace, and fathers are not belonging in the traditionally feminine role of family caregiver. This type of open bias is one reason workers have succeeded in the courts.

The discrimination model for addressing the work/family conflict experienced by both men and women is built on the concept that workers have legal "rights" protecting them from adverse employment actions based on their family caregiver role. While rights talk, with its accompanying discussion of inappropriate gender stereotyping, will not lead to immediate widespread workplace restructuring under court order, it may well begin to fuel social and institutional change. Rights talk can change what people feel they are entitled to from their employers and what employers feel they need to provide to their employees. If discrimination language and rights talk in the work/family context is successful in the court of public opinion, it may help spur courts of law and legislators to ensure that family caregivers' rights are protected by the law. A discrimination analysis redefines work/family conflict, so that is no longer seen as a personal inability to balance one's responsibilities, but as a structural problem that requires a structural solution (Williams & Segal, 2003).

Implications for Policy and Practice

While a discrimination analysis is important in a social or cultural context, the crucial role of this analysis in court cases cannot be overlooked. Family caregivers already are suing, and employers are becoming increasingly aware of the potential for legal liability. A survey of recent court decisions reveals roughly twenty cases where mothers and fathers have successfully challenged the discrimination they face at work due to family care responsibilities. Ten different legal theories have emerged, offering the potential for recovery based on federal and state anti-discrimination and labor statutes, federal and state constitutions, and state common law (see Williams & Segal, 2003, for an exhaustive discussion of these cases).

While no federal statute specifically protects workers from adverse employment actions based on their family caregiving responsibilities, federal and state statutes and common law principles have been used in innovative ways to obtain remedies for these workers. Under federal law, workers have relied on Title VII of the Civil Rights Act of 1964, the Equal Pay Act (EPA), the Family and Medical Leave Act (FMLA) [see Encyclopedia entry, Family and Medical Leave Act], and the Americans with Disabilities Act (ADA).

Title VII, which prohibits employment discrimination on the basis of sex, has been relied on more than any other statute when challenging employers' treatment of family caregivers. Claims under Title VII can be brought under many different legal theories: disparate treatment, disparate impact, hostile work environment and retaliation. Other legal theories will undoubtedly be tested as this legal trend continues.

As employers increasingly conceptualize the work/family conflict as discrimination, they will begin to recognize that they may be perpetuating workplace practices that are creating a chilly climate for adults with family caregiving responsibilities- a climate at odds with values that command widespread support in American life.

References

Abrams, Kathryn. Gender Discrimination and the Transformation of Workplace Norms, 42 Vanderbilt L.Rev. 1183 (1989).

Crittenden, A. (2001). The price of motherhood: Why the most important job in the world is still the least valued. New York, NY: Metropolitan Books

Jolls, Christine. Antidiscrimination and Accommodation, 115 Harv.L.Rev. 642 (2001).

Kessler, Laura. The Attachment Gap: Discrimination Law, Women's Cultural Caregiving, and the Limits of Economic and Liberal Legal Theory, 34 U. MICH. J.L. REFORM 371 (2001).

Malin, Martin. Fathers and Parental Leave, 72 TEX.L.REV. 1047 (1994).

Moore v. Alabama State University, 980 F.Supp. 426, 431 (M.D. Ala. 1997).

Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46 (1st Cir. 2000).

Smith, Peggie. Accommodating Routine Parental Obligations in an Era of Work/Family Conflict: Lessons From Religious Accommodations, 2001 WIS. L. REV. 1443 (2001).

Trezza v. Hartford, Inc., No. 98 Civ. 2005 (MBM), 1998 U.S. Dist. LEXIS 20206 (S.D.N.Y. Dec. 30, 1998).

Waldfogel, J. (1998). The family gap for young women in the U. S. and Britain. Journal of Labor Economics, 16(3), 505-545.

Waldfogel, J. (1997). The effects of children on women's wages. American Sociological Review, 62, 209-217.

Williams, Joan & Segal, Nancy. Beyond the Maternal Wall: Relief for Family Caregivers Who are Discriminated Against on the Job, 26 HARV. WOMEN'S L.J.77 (Spring 2003).

Williams, J. (2000). Unbending gender: Why work and family conflict and what to do about it. New York, NY: Oxford University Press.

Locations in the Matrix of Information Domains of the Work-Family Area of Studies

The Editorial Board of the Teaching Resources section of the Sloan Work and Family Research Network has prepared a Matrix as a way to locate important work-family topics in the broad area of work-family studies. (More about the Matrix…)

To download the matrix, click here:

http://wfnetwork.bc.edu/downloads/Discrimination_Against_Employees.pdf