Are Gender Stereotypes Bad for Women? Rethinking Antidiscrimination Law and Work-Family Conflict

Abstract:     
The work-family conflict is a significant barrier to women's equality in the workplace. As many commentators have noted with envy, the United States stands apart from most European countries in its failure to give women a legal right to paid maternity leaves. This Article argues that the United States' potential for reconciling the work-family conflict is undermined by the predominance of antidiscrimination law in tackling the problem. To expose this American idiosyncrasy, this Article develops a thorough comparative analysis of successful European models for work-family reconciliation. The unique trajectory of U.S. antidiscrimination law has pushed family and medical leave into a single legal regime, leading to maternity leaves that are grossly inadequate and medical leaves that are easily abused. In France and Sweden, by contrast, maternity is given special, generous protections, while sickness leaves are less generous and administered separately. European countries' laws are paternalistic towards women, protecting the special relationship between a woman and her child. The American amalgamation of family and medical leave is the result of an antidiscrimination framework that combats paternalism and gender stereotypes, such as the assumption that women, rather than men, tend to be primary caregivers. But today, due to the costs and fears of abuse of sick leaves, treating maternity the same as illness forecloses the possibility of generous maternity leaves. This Article critiques both the American antidiscrimination approach as well as the gender-conscious European family-policy approach to synthesize new ways of reorienting the American legal frameworks for family and medical leave.

Number of Pages in PDF File: 69

Accepted Paper Series