Is There Agency in Dependency? Expanding the Feminist Justifications for Restructuring Wage Work

Abstract

This essay seeks to expand the legal feminist justifications for restructuring wage work around the needs of employees with significant family responsibilities - typically women. It argues that family caregiving work often has political value, particularly to less privileged workers such as working class women, unmarried women, and women of color. For such individuals, care work may be understood, at least in part, as a form of resistance to workplace exploitation. Even relatively privileged workers may experience their family commitments as a means to resist, or at least balance, the pressured conditions of the modern workplace. This conception of caregiving as a positive form of political resistance to workplace exploitation provides a powerful challenge to traditional liberal legal and law and economic understandings of caregivers, caregiving, and the workplace, which together have served to stunt the law's response to work and family conflict. Specifically, such a conception of caregiving provides a justification for workplace restructuring even though caregiving is neither immutable nor performed solely by women, two facts that have undermined plaintiffs' efforts to secure more family-friendly work arrangements from a legal regime modeled on formal equality and rational choice theory. Thinking about caregiving as a form of positive political expression also strengthens the legal feminist project of valuing domestic labor by recognizing women's agency, however restricted and distorted by gender based oppression, and by including potentially even more people within that project.

Keywords: employment discrimination, feminist legal theory, law and economics, rational choice theory, sex discrimination, Title VII, Pregnancy Discrimination Act, Family and Medical Leave Act