Saturday, July 28, 2007
This weekend's New York Times Magazine has a feature story by Eyal Press on family leave in the U.S. The story is too long to properly summarize, but it discusses topics such as sex discrimination lawsuits under Title VII lawsuits based on stereotypical views of family obligations and the EEOC's recent guidance on that issue. The story is well worth a read, in part for several of real-life examples which, even to someone who reads about this area regularly, were eye-popping. Particular note should be made of the story's focus on Joan Williams (Hastings), who has been a major force in this area. Press describes Williams as:
. . . 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 It stemmed, rather, from a marketplace structured around a increasingly outdated masculine norm: the “ideal worker” who can work full time for an entire career while enjoying “immunity from family work.”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. . . .
Williams [said that] she wasn’t sure when she wrote the book what the best remedy was. One possibility was legislation — subsidized child care, generous parental-leave policies — of the sort many European countries have. Another was for employees to take legal action, an idea she described in the book’s most provocative chapter. To show how discrimination can harm caregivers, Williams told the story of a lawyer with sterling performance reviews who was passed over for a promotion because she was a mother; management had assumed she wouldn’t be interested and promoted an unmarried woman instead. Even though the position was not given to a man, a court agreed the firm’s action might constitute sex discrimination, not least because numerous fathers had received such promotions. Negative assumptions about the capabilities of women with children pervade the marketplace, Williams averred, and can violate Title VII of the Civil Rights Act even when employers insist their actions are not motivated by sexism.
“Unbending Gender” struck a nerve — soon after its publication, Williams found herself fielding “a zillion invitations to speak” — but its author admits she had “no idea” whether the legal theory she had sketched out might catch on. There were plenty of skeptics, which is not surprising. Unlike being black or female, after all, becoming a parent is a choice, one that often limits an employee’s availability. As she traveled across the country, Williams heard this frequently from feminists convinced that courts would side with businesses in such disputes. But she heard something different from the lawyers she met, who seemed equally certain jurors would sympathize with workers punished simply for trying to be responsible caregivers. Meanwhile, with each passing day, more lawsuits kept being filed. Williams soon established the Center for WorkLife Law, which emerged as the place to go to learn more about the subject — not only for scholars and journalists but also for employees, who started calling its hot line to find out how they, too, might file a claim.