This piece reevaluates the passage and implementation of the Family and Medical Leave Act (FMLA) against the egalitarian ideal described by the Supreme Court in its recent decision in Nevada Department of Human Resources v. Hibbs. The Court in Hibbs upheld the FMLA against an Eleventh Amendment challenge, concluding that Congress enacted the law as a congruent and proportional remedy to the longstanding history of state-sponsored discrimination against working women. According to the Court, Congress enacted the FMLA to remedy a longstanding history of discrimination against working women by forcing employers to offer caretaking leave on gender-neutral terms. At least in theory, this mandate would mean that men and women would then take leave and share the burden of caring for children on equal terms, employers would perceive male and female employees as equally (un)attractive, and women would achieve equality both as parents and as workers. In fact, as the article demonstrates, the assumptions underlying this vision of equality do not accurately reflect the reality of either caretaking or leavetaking. Members of Congress were concerned very little with equality when they debated the FMLA over the course of eight years, and the motivation for its passage was the protection of "motherhood" - giving childbearing women greater job security. Neither supporters nor opponents envisioned that men would assume greater caretaking responsibilities because of the law, and, in fact, they have not. Leave-taking patterns, and the caretaking patterns that underlie them, continue to be quite gendered. Women tend to take leave whether they have job security or not; men tend not to take leave even if they do; and employers continue to perceive women as less reliable and more costly workers. The article thus concludes, drawing on anti-subordination theory, that the FMLA did almost nothing to advance true equality for women as workers or as parents.
Washington University Journal of Law & Policy
Joanna L. Grossman, Job Security Without Equality: The Family and Medical Leave Act of 1993, 15 Wash. U. J.L. & Pol'y (2004)