“Family-Leave Values”

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Last Sunday’s NYT had this article about family leave. Here are a couple of excerpts:

… Until recently, lawsuits claiming workplace discrimination because of family care-giving obligations were rare : in part because, however harsh it may seem to lose your job under circumstances like Deonarain’s, employers could often get away with it. The 1993 Family and Medical Leave Act guarantees workers some unpaid time off in the event of a serious health problem, after the birth of a child or to care for a sick family member, but the law’s scope is limited. (It doesn’t cover companies with fewer than 50 employees, for example. Computer Literacy World had just under 50 at the time.) And no federal antidiscrimination statute exists that explicitly protects family caregivers in the workplace.

But what constitutes discrimination in the eyes of the law is changing. And one reason it’s changing is that the ranks of people like Karen Deonarain have grown. Since the mid-1990s, the number of workers who have sued their employers for supposed mistreatment on account of family responsibilities : becoming pregnant, needing to care for a sick child or relative : has increased by more than 300 percent. More than 1,150 such lawsuits have been filed in federal and state courts, a trend that has not gone unnoticed in the business world, not only because companies are well aware of the negative publicity lawsuits can generate but also because numerous plaintiffs have walked away with hefty damage awards. In one case, a jury granted $11.65 million to a hospital maintenance worker who was penalized for having to care for his elderly parents. In Ohio recently, a jury awarded $2.1 million to an assistant store manager who was demoted because she has several kids.

The workers pressing such claims have invoked a dizzying array of laws to prove they were mistreated. Some have relied on Title VII of the 1964 Civil Rights Act, which a number of courts have ruled prohibits not only overt sex discrimination but also seemingly neutral policies that have a disparate impact on women. Others have invoked the 1990 Americans With Disabilities Act, which covers both individuals with disabilities and, to a lesser extent, the people who care for them. Others still have drawn on the many state and local laws passed in recent years to safeguard the rights of employees with families.

The flood of cases reflects not just the increased presence of women in the workplace but also the growing difficulty Americans of all social backgrounds seem to be having in balancing the demands of work and family. Unlike so-called”glass ceiling”cases involving women barred from the top rungs of a handful of elite professions, the plaintiffs in these new work-family disputes have ranged across the occupational spectrum, from physicians to police officers to grocery clerks. While not all have become millionaires, more than half have prevailed in court : a success rate significantly higher than that of more conventional employment-discrimination cases, which is below 20 percent. Beyond causing headaches for their employers, the lawsuits are serving notice that the battle over”family values”is no longer just about gay marriage and abortion: it’s also about workplace attitudes that some advocates believe do significantly more to undermine family life than those controversial practices do.

No person has made this argument with more vigor in recent years than Joan C. Williams. A professor at the University of California’s Hastings College of the Law in San Francisco, Williams, 55, is tall and slender, with reddish-brown hair and something approaching rock-star status among the small but growing network of lawyers and scholars who litigate or study family-responsibility discrimination cases. …

… Williams has been racing across the country giving such speeches since 2000, the year her book “Unbending Gender” appeared. In the book, which set in motion the legal trend that now consumes much of her time, Williams argued that the growing tension between work and family was not simply a product of economic necessity. It stemmed, rather, from a marketplace structured around an increasingly outdated masculine norm: the”ideal worker”who can work full time for an entire career while enjoying”immunity from family work.”At a time when both adults in most families had come to participate in the labor force, Williams argued that this standard was unrealistic, especially for women, who remained the primary caregivers in most households. …

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