The NYT had an interesting article in the Sunday magazine a few weeks back, “Family Leave Values” by Eyal Press (probably behind the wall, e-mail if you want the text)- exploring the question of whether workers have the right to care for their families and discussing a new type of work discrimination lawsuit.  The examples cited in the article are pretty extreme, and obviously extreme cases can make the best groundbreakers for a new area of law.  While strong facts don’t always make good law, strong facts can support pushing the envelope on the law.

Anyway, some of the examples are the story of a woman who was pregnant and had a very premature birth.  She talked to her employer over the phone about her need for time off due to the delicate condition of her preemie, everything seemed to be fine, but a few weeks later she found out during the refinancing of her home that she’d been fired.  The employer hadn’t even told her; the bank found out when checking her financial statements (i.e. salary). In another instance, a man asked his employer for thirty days off, available to primary caregivers under Maryland law.  He was told that unless his wife was in a coma or dead “you can’t be a primary care provider.”

One attorney and law professor, Joan Williams, describes the recent flood of lawsuits a result of the pressures as follows:

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 It stemmed, rather, from a marketplace structured around an increasingly outdated masculine norm: the “ideal worker” who can work full time for an entire career while enjoying “immunity from family work.”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.  

The article also highlights some of the extreme differences between the benefits given parents here in the U.S. and in Europe.  I do agree with the attorneys and advocates quoted in the article, though, that these lawsuits are at best a hatchet on a problem that would be better served with a more precision tool.  Lawsuits are not the best way to try and create public policy.  But they can serve as impetus for better public policy.   And there’s nothing like a million dollar verdict to catch some attention on a problem.

In my mind, some of the problem stems from the traditional undervaluing of care-taking.  It’s considered women’s work and whether or not the woman is working outside the home, there isn’t a lot of support for the time, effort, and patience (oh, god, the patience) it can take.  This plays out in reverse fashion for men who want or need to caretake for their children, partner, etc. 

And the men being faced with this in the workplace may, in fact, be the best plaintiffs.  Many of the biggest strides in gender equality in law in the 70s and 80s were made when advocates found sexist laws, intended to ‘benefit and protect’ women, were in fact harming men (i.e. widow pension benefits higher than widower benefits harming a single widowed dad, etc).  Ruth Bader Ginsburg was a nimble and savvy advocate and won many cases using this technique.  Perhaps the same will be true here.  We can hope.

And the right to caretake does not just involve parents.  That’s why I’m somewhat hopeful that this can be a rallying point across that line that sometimes separates parents and non-parents.  Whether or not you have kids, it is highly likely that at some point in your life you will have caretaking responsibilities, whether for a partner or an elderly or sick relative.

What’s clever is that the cases can be framed as not “just” discrimination cases, but as family values cases, which expands their political appeal if the issue can be pulled into the legislature to act on.

In my view, these types of cutting-edge cases can serve as canaries in the coal  mine, a sign that the system we have now of it being company v. employee as opposed to companies working with employees is simply not working.  I’d like to see the hatchet of litigation exchanged for a thread and needle of carefully crafted legislation to increase worker’s caretaking rights.

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