Kathie Lingle's Work-Life Blog

What if Work-Life Becomes a Compliance Activity?

Aug. 3, 2007 - I have been quietly observing for some years now (mostly to myself) that the biggest practical difference between diversity and work-life effectiveness as elements of corporate people strategy is that lack of attention to the former can land an employer in legal trouble. Diversity has thus become anchored in compliance activity, requiring the creation, completion and filing of reports to external entities. This has moved it up the food chain, priority-wise, since human resource professionals and corporate lawyers understand the importance of compliance to provisions of law and regulation and are adept at it.

By contrast, work-life has been left to its own devices as a purely voluntary, optional strategy. With the exception of the Family and Medical Leave Act, loosely monitored by the Department of Labor, more than one employer has taken it for granted that they can treat some employees very badly indeed without worry of running afoul of the law, such as terminating or refusing to promote well-qualified women because they become pregnant or are unfortunate enough to give birth to a child with special needs. Or denying the request of a father (a Maryland state trooper, no less) for four to eight weeks of leave to take care of his ailing wife and new baby, by asserting that “Unless your wife is in a coma or dead, you can’t be the primary care provider.”  Lest you think I’m reverting to ancient history or making these stories up, both of these real-life cases are described in Eyal Press’s intriguing article in the July 29 issue of the New York Times Magazine - Do workers have a fundamental right to care for their families? The latest front in the job-discrimination battle.  The author explains that “no federal antidiscrimination statute exists that explicitly protects family caregivers in the workplace.”
 
But this article makes it clear that the times, they are a’ changing -- along with what defines discrimination from a legal perspective.  The hypothetical question I’ve been pondering for years is about to be answered:  what happens if work-life becomes subject to legal and regulatory compliance in a similar fashion to diversity?  Is it possible for workplace flexibility to remain flexible if it’s mandated, or will “mandatory flexibility” prove to be the oxymoron it implies?

Whatever the outcome, something unsettling is undeniably taking place. Over the last decade, the number of employees who have sued their employers for what they claim to be family responsibility discrimination (FRD) has risen 300%-400%, amounting to more than a thousand work-family lawsuits, about four-fifths of which are filed by women.  What’s even more surprising is the fact that more than half of these lawsuits are won by the worker, occasionally resulting in eye-popping damage awards that are not escaping the notice of employers across the land. This is an especially significant development in an era when more conventional types of job discrimination law suits have been losing ground, prevailing in court less than 20% of the time.  Thus, new battle lines seem to be forming around family-leave values in response, so the author tells us, “to the growing difficulty Americans of all social backgrounds seem to be having in balancing the demands of work and family.” 

There is a person at the eye of this storm, a middle-aged woman named Joan Williams, a professor at the University of California’s Hastings College of the Law in San Francisco. Her 2000 book, Unbending Gender, is widely credited with opening the floodgates to this new legal trend. In her book, Williams described the pervasiveness of negative assumptions about the role and competence of women with children throughout the American workplace, and argued that, unchallenged, this bias against motherhood can result in harmful discrimination against caregivers. One way this manifests itself is in compensation. Press cites an analysis of labor market research that suggests that the gap in pay between mothers and everyone else is wide, although the gap between what men and women are paid overall is narrowing. Similar discriminatory patterns are described in experiments that were conducted on hiring decisions, summarized in an article in the May 2007 of the American Journal of Sociology.

My biggest surprise in Press’s article is the description of former Chief Justice William Rehnquist’s obvious mixture of personal and professional passion surrounding this issue.  In a 2003 family responsibility discrimination case that made it to the Supreme Court, Rehnquist wrote in his majority opinion, “The fault line between work and family is precisely where sex-based overgeneralization has been and remains strongest.”  Press suggests that this otherwise very conservative judge might have been influenced by his own experience with taking care of his wife who was dying of cancer.  After all, everyone has a life to manage.

Joan Williams is a very busy woman with tremendous impact.  She is the first to declare that “suing your employer is the worst possible vehicle of social change,” and is herself surprised by the vigorous surge in such activity.  She would prefer other, more effective means of addressing the root causes for this form of job discrimination, such as the far more coordinated, equitable approaches taken by such countries as Britain and Sweden. But she also appears to be a pragmatist, recognizing the uniquely American penchant for litigation over social policy.  So she does what she can to make things better at the margins of the problem. After testifying at an E.E.O.C. hearing in April, where she argued that companies needed more guidance from Washington about the proper treatment of caregivers, the agency has issued its first enforcement guidelines. Says Press, “The E.E.O.C. makes it clear that personnel decisions implemented on the basis of stereotypical assumptions are unacceptable and urges employers to make it easier for all workers, whether male or female, to balance work and personal responsibilities.”

The opinions expressed are solely those of the author and do not necessarily represent those of WorldatWork and its affiliate, Alliance for Work-Life Progress (AWLP).