Academic journal article Law & Society Review

Bargaining in the Shadow of Social Institutions: Competing Discourses and Social Change in Workplace Mobilization of Civil Rights

Academic journal article Law & Society Review

Bargaining in the Shadow of Social Institutions: Competing Discourses and Social Change in Workplace Mobilization of Civil Rights

Article excerpt

The Family and Medical Leave Act requires employers to provide job-protected leave, but little is known about how these leave rights operate in practice or how they interact with other normative systems to construct the meaning of leave. Drawing on interviews with workers who negotiated contested leaves, this study examines how social institutions influence workplace mobilization of these rights. I find that leave rights remain embedded within institutionalized conceptions of work, gender, and disability that shape workers' perceptions, preferences, and choices about mobilizing their rights. I also find, however, that workers can draw on law as a culture discourse to challenge these assumptions, to build coalitions, and to renegotiate the meaning of leave.

Until recently, the United States was virtually the only major industrialized country without a family leave policy. Employers could legally fire workers who needed time off to care for seriously ill children, ill or injured spouses, or aging and dying parents. Employers could also legally fire workers unable to work clue to temporary serious illnesses or injuries. And employers could legally fire women who needed time off for pregnancy, childbirth, or related medical conditions so long as they also denied time off to nonpregnant employees who were unable to work. Time off after the birth of a child remained a benefit provided at employers' discretion, a benefit primarily available to well-paid professional or management workers (Kamerman, Kahn, £ Kingston 1983).

Since 1993, however, the Family and Medical Leave Act (FMLA) has provided some workers with a legal right to unpaid, job-protected leave. The FMLA requires covered employers to provide twelve weeks of leave per year to certain workers who need time off for family or medical crises.1 Workers may use FMLA leave for childbirth or other temporary disabilities, and both men and women may take leave to care for a sick child, parent, or spouse, or a new child in their family.2 The statute protects workers who use leave from retaliatory harassment, termination, and discrimination.3 The law also requires employers to provide leave even if they do not allow time off for any other reason. In other words, the statute creates an entitlement because it does not allow employers discretion to deny leave to qualified workers.4

New legal rights seem to be an obvious solution to workplace conflict over family and medical leave because they not only create an instrumental tool for enforcement, but also reframe the meaning of leave as a legitimate and important entitlement. Like most civil rights laws, however, the FMLA is primarily enforced through an individual, private right of action that workers must actively claim or "mobilize." Although these formal rights are an important first step, rights mobilization remains embedded within existing practices, deeply held beliefs, and taken-for-granted expectations about work, gender, and disability. This study examines how legal norms and these other institutionalized systems of meaning influence the process of mobilizing FMLA rights in the workplace.

This study builds on a long sociolegal tradition that examines how law interacts with other systems of meaning in particular social settings. For example, empirical research has demonstrated how law can be displaced or transformed by alternative normative systems (Ellickson 1991; Macaulay 1963) or by organizational practices and goals (Edelman, Erlanger, & Lande 1993; Heimer 1999). Often, however, these studies treat law and other norms as an either/or proposition: either social relationships are ordered according to law, or there is "order without law." Less is known about the complex process through which law internets with alternative normative systems (Jacob 1992). Although other systems of meaning matter, actors may still draw upon law as a cultural resource to interpret their social experiences and to influence the behavior of others. …

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