Almost twenty years after the enactment of the Family and Medical Leave Act (FMLA), an ostensibly gender-neutral statute, companies are still less likely to offer paternity leave than they are to offer maternity leave. Although women have traditionally faced discrimination in the workplace because they are viewed as inauthentic workers--not fully committed to paid employment--men face the corresponding problem and are viewed as inauthentic caregivers. Men who seek family leave transgress gender norms and risk workplace discrimination and stereotyping. This article makes explicit how the social and cultural contexts in which the FMLA is applied interact to maintain the status quo and produce gendered outcomes at work and at home. The FMLA was expected to promote workplace gender equality by providing gender-neutral leave and thus reduce employers' expectations that women are more costly than men because they require special accommodations. Unfortunately, women continue to take significantly more leave than men to care for a newborn child or sick relative. This article argues that that the view of men as providers first and caregivers second encourages discrimination against male caregivers and interacts with overwork and inflexible work schedules to contribute to stereotypical divisions of labor within families. This article further proposes policies, including paid family leave, to promote co-equal caregiving and breadwinning between men and women.
In the great "Mommy Wars" of the early twenty-first century, men are notably absent. (1) One analysis of articles on the "opt-out" revolution (2) found that there were 315 mentions of mothers but only twenty-five mentions of fathers. (3) In sixty-four percent of the articles surveyed, the husband was described as a breadwinner who made it possible for his wife to stay home. (4) There was almost no discussion of men's role in family caregiving or the conflicts that male caregivers face. (5) Instead, the work-family conflict has been seen through the lens of women's responsibilities. (6) With few exceptions, there has been little analysis of men as caretakers (7) of their own children. (8)
Further, when men's work-family conflict is discussed, it is rarely placed within the context of the couple; (9) there is little substantive discussion of how men's and women's work-life decisions interact to produce gendered outcomes. As Professor and Director of the Center for Work Life Law Joan Williams notes, in what she terms the "dominant family ecology," men are considered primarily breadwinners and women are considered to be primarily caretakers, and husbands could not perform as ideal workers without the flow of care work from their wives. (10) Yet the continued assumption that men operate within the confines of this dominant family ecology disadvantages both men and women. Today, most families need two wage-earners to make ends meet, making a couple-level analysis especially important. Women who do not have a "wife" at home are disadvantaged in a workplace that increasingly requires constant availability. (11) It is easier to stay late at work, go in to work with only a few hours' notice, and answer e-mails on the weekends if you have a partner who is able to make sure that the children are picked up from school, that there are groceries in the refrigerator, and that the housework gets done. (12)
Nevertheless, gender differences in employment and wages do not become marked until the arrival of children, when caregiving demands begin to conflict dramatically with work demands. (13) Further, although many men no longer maintain the primary breadwinner role, they nevertheless retain a secondary role as caregivers; they are the helpers, not the ones responsible for caregiving. (14) But men who want to participate fully in family life face discrimination in the workplace, including the denial of leave and potentially greater harm to their careers than women in the same position. …