Leveraging the Courts to Protect Women's Fundamental Rights at the Intersection of Family-Wage Work Structures and Women's Role as Wage Earner and Primary Caregiver
Maxwell, Jill, Duke Journal of Gender Law & Policy
The gap between men's and women's labor force participation steadily narrowed for over two decades until progress slowed in the mid-1990s. (1) Before the mid-1990s, "[w]omen, especially married mothers with young children, continued to enter the labor force in ever-growing numbers. They integrated previously male occupations, especially middle-class occupations, and narrowed the earnings gap with men more in the 1980s than in any other decade...." (2) Women's labor force participation peaked at sixty percent in 1999 and has plateaued, and even declined, since then. (3) The plateau in progress that has characterized the pattern of gender workplace equality since the mid-1990s cannot be explained as "structural or broadly ideological." (4) It is most likely the result of a "specifically antifeminist backlash in the popular culture." (5) This antifeminist backlash co-opted the feminist rhetoric of choice and equality by describing career mothers who leave the workplace as "opting" for full-time motherhood, even if the "choice" was prompted "by unsupportive work environments or increased job demands." (6) By using a feminist rhetoric of "choice" to describe the pattern of women's departure from the workplace in favor of full-time caregiving, the rhetoric remains insulated from broad criticism, perpetuates an inaccurate image of women's complicated life reality as wageworker and caregiver, and maintains a status quo workplace structure that is inherently discriminatory against women.
As this article highlights through statistics and anecdotes, a woman's "choice" to leave the workplace--if the option exists at all--is not as simple as popular culture would let us believe. Rather, most women, including married women, need to work to support their families. (7) But women are also society's primary caregivers of children and the elderly, whether out of necessity, (8) conformance to traditional gender roles, (9) or choice. (10) Because the American workplace structure remains rooted in the family-wage ideal, (11) in which a male breadwinner and a female homemaker comprise each household, women must fit their family caregiving responsibilities into a workplace structure defined around the ideal worker, who does not have such responsibilities. (12) The result is the marginalization and exclusion of women from work and stagnant progress towards workplace equality. (13) Although women comprise close to half of the workforce, they lag behind men in wages and leadership positions, (14) and continue to be discriminated against because of their caregiver status. (15) And, although popular culture focuses on women in higher-income jobs and households, women in low- and middle-income jobs--those with the least flexible jobs and the most need for the income--carry the heaviest burden. (16)
This article argues that the stagnant progress in workplace equality results in part from the persistence of family-wage barriers. Family-wage barriers arise at the intersection of a workplace designed around a worker without family caregiving responsibilities and women's role as primary caregivers. (17) These barriers manifest as work structures that favor a worker without caregiving responsibilities, (18) and as policies and practices that penalize caregivers directly or indirectly, including strict adherences to work structures designed around the ideal worker. (19) Courts recognize mistaken gender stereotype-based assumptions about a caregiver's job performance as sex discrimination. (20) But they have had few opportunities and been reluctant to recognize that family-wage barriers implicate and infringe on women's fundamental constitutional rights, regardless of the evidence of stereotyped assumptions. (21) Focusing on mothers, (22) this article highlights the equal protection and substantive due process rights at stake for working women subjected to unfavorable treatment because of their status as caregivers, as distinguished from unfavorable treatment because of gender-stereotyped assumptions based on that status. …