Ms. S. is a young, attractive single mother who used to work full-time for a marketing company in New York City. She was named employee of the month several times, and when the company decided to do some television promotion, she was asked to appear in the ads. She agreed, and, partly because of the ad campaign, business increased. Unfortunately for her, things got so busy that she was asked to work a 12-hour day, from 10 a.m. to 10 p.m. This was impossible, as it meant she would virtually never see her 4-year-old daughter even if she could find suitable child care. She said she couldn't work the hours, and she was fired, in essence, for being too successful.
This same story is repeated all the time, all over the country. In at least two states, Connecticut and Massachusetts, mothers have taken similar cases all the way to their states' supreme courts, challenging an employer's right to fire a parent for refusing to work more than a 40-hour week. In both cases the mothers lost. The Massachusetts Supreme Judicial Court ruled in 1997 that an at-will employee (i.e., one with no union contract) could be fired "for any reason or for no reason at all" unless the firing violated a "clearly established" public policy. And, ruled the court, there is "no public policy" mandating that an employer "adjust its expectation based on ... an at-will employee's domestic circumstances," such as child-rearing responsibilities.
Well, there ought to be such a mandate. Parental responsibility is a deeply rooted national value, and our public policies should uphold our values, not subvert them. The problem, of course, is that Americans are profoundly ambivalent when it comes to work and family obligations. We glorify an all-work, all-the-time lifestyle and then weep crocodile tears for kids whose parents are never home. In a culture that celebrates the 24-7 workweek, what are conscientious parents supposed to do? The right thing by their children -- and risk losing their jobs? Or meet their employers' time demands -- and risk losing touch with their children? How is this brutal choice in our national interest?
We badly need some restraints on the hours employers are now imposing on people. For millions of Americans, the 40-hour workweek is, for all intents and purposes, history. One approach would be an outright ban on mandatory overtime. Sen. Ted Kennedy (D-Mass.) has introduced bills that would prohibit mandatory overtime in the health-care industry. Why not in all industries? Everyone should have the right to choose between long hours on the job or time with their families.
Corporate lobbyists are, of course, utterly opposed to any such limits on working hours. And now the Bush administration has proposed changes in overtime rules that would deny overtime pay to millions of workers who are still eligible, thereby making it easier for companies to require overtime without even paying for it.
A counterattack may be available. Virtually all states have human-rights statutes prohibiting discrimination on the basis of race, gender, age, etc. Those statutes could be amended to add three little words: "and family responsibilities." If law forbade employers to discriminate against people with family responsibilities, it would be much easier for a mother like Ms. S to sue her firm for discrimination.
In the meantime, some mothers and fathers aren't waiting for a change in the law: They are suing employers anyway, and, in some cases, winning. Joan Williams, a professor at the Washington College of Law at American University, is tracking these cases and advising attorneys and companies on the trend. She has found at least 20 successful lawsuits by primary caregivers, many involving hefty awards. The plaintiffs include a former University of Oregon assistant professor who won a nearly $500,000 award after asserting that she was denied tenure because she took maternity leave and used the university's own maternity policies to delay the tenure decision. The chairwoman of the tenure committee had written that mothers have responsibilities that are "incompatible with those of a fulltime academician."
Another plaintiff in New York City, an attorney with a major insurance company, claims that she was not promoted because she worked a flexible schedule. She argued that such treatment has a "disparate impact" on women because women with children make up the vast majority of those using flexible work arrangements. If she wins this case, it will further establish that denying a promotion to someone on a "mommy track" constitutes sex discrimination under Title VII of the Civil Rights Act.
Still, stronger laws protecting employees with family responsibilities are needed. Such a move would put our public policy squarely in line with our private values. And it sure would be fun watching state legislators try to argue that overworked moms and dads shouldn't have time for their kids.
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