Editor's Note: This piece is part of "Mother Load," a TAP special report on work/family issues.
The backlash against the reigning "ideal worker" construct -- long hours away from home, 24/7 availability, always ready to travel -- has been mounting for some time now. It's self-evident not just among working moms and work-life analysts but among rebellious elites and working-class men, too. These painfully outmoded assumptions about how to work are based on 1950s-era men with stay-at-home wives. Today more women are in the workforce than ever; fathers want to be more involved in the domestic sphere; people are living longer and are more dependent on their children as they grow infirm. Yet in spite of all this flux, the workplace has remained stagnant, with a "this is just the way things are done" mentality.
But some workers who see these outdated policies as discriminatory are seeking recourse in the courtroom. Employees who were denied that promotion, faced hostility at work, or were fired because they had to care for family members are stepping up to sue. And 50 percent of their cases, known as Family Responsibilities Discrimination (FRD) suits, are winning. These lawsuits put the workplace on trial, wrote Mary C. Still in "Litigating the Maternal Wall: U.S. Workers Charging Discrimination Against Workers with Family Responsibilities," a paper published by the Center for WorkLife Law. FRD lawsuits document the struggle between iconoclastic employees and conventional employers over what the ideal worker looks like. Now the question is whether these lawsuits will actually spark change in the workplace. And if so, how much?
The paradigm shift in workers' needs is real, says Cynthia Thomas Calvert, deputy director of the Center for WorkLife Law. And if anything, FRD may hasten workplace change. Perhaps due, in part, to FRD lawsuits, employers are beginning to realize that marginalizing caregivers is now a serious legal liability. In the last decade, the number of FRD cases filed rose by 400 percent, according to Still's report. The spike occurred in the wake of the Civil Rights Act of 1991, which afforded employees claiming sex discrimination the right to a jury trial and the recovery of damages, and therefore made the suits more appealing to plaintiffs and lawyers.
Although there is no federal statute for FRD, lawyers tend to cobble together existing ones, such as the Family and Medical Leave Act, Title VII, the Pregnancy Discrimination Act, the Equal Pay Act, and the Americans with Disabilities Act, when filing lawsuits. Employees have also successfully sued on claims of wrongful discharge, breach of contract, and infliction of emotional stress. Mothers, who now know their rights because of the internet and increased media coverage, are filing most cases, many of which are filed under Title VII, which prohibits sex discrimination.
Successful cases establish that employees -- both men and women -- are penalized not because of their gender, but because of their gender role. Juries tend to be very sympathetic with both male and female plaintiffs, more so than in other discrimination cases, because they easily identify with mothers and fathers. On average, winning plaintiffs receive awards of $100,000, with the largest award to date at $49 million.
Discrimination is easiest to prove in cases that involve overtly discriminatory language, where managers comment that "a mother's place is in the home," or say that working mothers are "incompetent and lazy." But this "loose lips" category of suits may disappear as a new wave of political correctness sets in. That doesn't mean, of course, that managers won't tacitly possess these biases. But in terms of the FRD court cases, it puts the onus on circumstantial evidence. This doesn't necessarily mean that cases are any harder to win: Right now, most cases are circumstantial in nature. But when companies change their policies, however superficially, courts read it as a "signal of compliance," writes Erin Kelly, professor of sociology at the University of Minnesota-Twin Cities, in The Handbook of Employment Discrimination Research. And even if the workplace policy change is nothing more than an empty gesture, courts are more likely to give a manager or a company the benefit of the doubt, should FRD arise.
Ironically, some FRD cases may actually reinforce the ideal worker model. In the well-known 2004 case, Back v. Hastings on Hudson Union Free School District, Elana Back successfully sued for gender discrimination. As a school psychologist at an elementary school for over two years, she received positive performance reviews and had a baby. As her tenure decision approached in her third year, her supervisors voiced concern over whether she could be both a good mother and a good employee, and wondered whether Back's performance would suffer once she earned tenure. But in spite of her caregiving obligations, Back still functioned ably: putting in the expected time, getting positive feedback. She was an ideal worker, and structurally, the workplace didn't need to change to accommodate her needs. So such cases have been less successful, Kelly argues, in making jobs amenable to caregiving, and have not been shown to improve work conditions and rewards.
At the same time, merely talking about discrimination, Kelly writes, is a powerful way to challenge popular perceptions of caregiving dilemmas. Instead of individualized solutions -- such as managers insisting that mothers should learn how to juggle better -- structural solutions come to the fore in the public conversation. The use of Title VII's theory that the caregiving burden disproportionately affects women is instrumental in this understanding. It holds employers accountable for seemingly neutral policies and practices that tend to disadvantage certain workers, and focuses on inequitable results, not discriminatory intent. This model, Kelly writes, encourages the scrutiny of employers' existing practices, thus making room for the possibility of changing them in ways that benefit caregivers.
In the 1970s and 80s, the threat of lawsuits motivated many employers to modify restrictive maternity leave policies. Kelly believes that FRD claims might help expand part-time work opportunities, as well as challenge inflexible work hours and constraints on working from home. But she concedes that the way an organization is run is so deeply entrenched, it can be hard for those involved to think the demands of a business can be met efficiently any other way. Until managers in the workplace can move beyond that way of thinking, the "ideal worker" will thrive at the expense of everyone else.
Jeanine Plant writes frequently about women's issues and culture.
Special thanks to Joan Williams, the director for the Center for WorkLife Law at University of California, Hastings College of Law.
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