Tuesday, February 10, 2015
Building upon Cindy Soohoo's post from yesterday, The George Washington University School of Law Associate Professorial Lecturer in Law Robin Runge reflects upon U.S. policy toward women and workplace equity.
Prof. Runge writes:
The concept of using employment laws to promote specific societal behaviors and values is one that has been considerably explored in U.S. legal scholarship. For example, Title VII of the Civil Rights Act in 1964, prohibiting discrimination in employment based on race, ethnicity, color, religion, and sex is frequently described as a law intended to more broadly increase economic opportunity and promote equality for populations that had historically experienced extensive societal discrimination. The passage of the Family and Medical Leave Act in 1993 has been described as a reflection of U.S. society valuing a specific set of family and caregiving responsibilities over others by mandating employers provide unpaid, job guaranteed leave to employees for limited medical or caregiving reasons. I, among others, have criticized the FMLA for promoting behaviors that reflect the needs and experience of middle and upper class “ideal families,” to the exclusion of low income women who cannot afford to take unpaid leave and often don’t qualify for the job guarantee leave provided by the FMLA because they need to take leave for family-related reasons that don’t meet the requirements. See Robin R. Runge, Redefining Leave From Work, 19 Geo. J. on Poverty L. & Pol’y 445 (2012). Finally, recent amendments to the Fair Labor Standards Act are intended to promote breastfeeding among low income working women and help them maintain employment by requiring employers to provide break time and a private location to express milk at work. However, as Young v. UPS, currently pending before the U.S. Supreme Court demonstrates, pregnant women are still fighting for basic rights in the workplace.
Unlike Prof. Soohoo’s description of countries in East Asia, the U.S. is not facing a significant drop in birth rates or considerable concerns about a shrinking labor pool. I do not think, however, this is because our workplaces are models of equality for women. Quite the opposite. Women make up almost half the workforce, and a high percentage of mothers are working. Moreover, 40% of American mothers are the primary breadwinners for their families. So, women seem to be able to make it work in spite of a lack of pay equity, paid family leave, workplace flexibility, and rampant violence against women in some workplaces, even though the Pregnancy Discrimination Act was passed in 1978.
The employment and labor laws of the U.S. have created workplace structures and cultures that make women vulnerable to exploitation and discourage mothers from working. Just this week a headline in an article asked “When we will stop punishing women for having babies at the peak of their careers? Others have attributed a recent decrease in women in the workforce to U.S. employment policies that make it nearly impossible to have a child and maintain employment.
The Administration and several members of Congress have recently and consistently argued that passage of legislation mandating paid family leave and raising the minimum wage (women are the majority of minimum wage-earners) would promote women’s equality and economic opportunity with the Women’s Economic Agenda: When Women Succeed, America Succeeds: An Economic Agenda for Women and Families. However, this effort does not seem to be effective in getting the legislation passed.
Maybe if the U.S. did face a crisis in our birth rate, or a need to increase women’s participation in the workforce, that would result in legislation that makes our workplaces more equitable for women. Or maybe, whether there is a connection between increasing economic equality for women and government policy depends on where a woman lives, China or the U.S.