International Journal of Comparative Labour Law and Industrial Relations

Volume 28 (2012)

Volume 28 (2012) / Issue 1

Stephanie Bornstein, Joan C.Williams, Genevieve R. Painter, 'Discrimination against Mothers Is the Strongest Form of Workplace Gender Discrimination: Lessons from US Caregiver Discrimination Law' (2012) 28 International Journal of Comparative Labour Law and Industrial Relations, Issue 1, pp. 45–62

Keywords:
Work-family reconciliation, gender stereotyping, sex discrimination, labor law, workplace-workforce mismatch, maternal wall discrimination.

Abstract

Work-family reconciliation is an integral part of labour law as the result of two major demographic changes. The first is the rise of the two-earner family. The second is that, as Baby Boomers age, caring for elders has become a pressing concern for men as well as women. Despite these changes, most European and American workplaces still assume that the committed worker has a family life secured so that family responsibilities do not distract him from work obligations. This way of organizing employment around a breadwinner husband and a caregiver housewife, which arose in the late eighteenth century, is severely outdated today. The result is workplace-workforce mismatch: Many employers still have workplaces perfectly designed for the workforce of 1960.

Labour lawyers in both Europe and the United States have developed legal strategies to reduce the work-family conflicts that arise from this mismatch. Yet the legal strategies developed in Europe are different from those used in the United States. The Europeans' focus is on public policy, based on a European political tradition of communal social supports - a tradition the United States lacks. Advocates in the United States, faced with the most family-hostile public policy in the developed world, have developed legal remedies based on the American political tradition of individualism, using anti-discrimination law to eliminate employment discrimination against mothers and other adults with caregiving responsibilities. This article explores both the social science documenting that motherhood is the strongest trigger for gender bias in the work place and the American cases addressing 'family responsibilities discrimination' (FRD).

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ISSN: 0952-617X
ID: IJCL2012004