How Workplace Equity Laws Perpetuate Inequity

Abstract

What federal policy would make the biggest difference for the U.S. populace? Paid family and medical leave, said vice presidential candidate and Minnesota Governor Tim Walz. Although a federal right to paid leave from work for family or medical issues is still years away, paid leave laws are sweeping the country quickly: paid family and medical leave is now the law in thirteen states and the District of Columbia, and even in states that voted against Governor Walz’s vice presidential bid, voters approved paid sick leave laws by ballot initiative.

As they become more commonplace, now is the time to consider the details of what new paid leave laws should look like. If, as this Article shows, aspects of these laws will merely perpetuate the very inequities that they attempt to correct, then advocates and policymakers should act quickly to change course.

Drawing on public administration and disability law scholarship establishing that administrative burdens reinforce inequity, this Article applies that lesson to workplace equity laws, such as the Americans with Disabilities Act, the Family and Medical Leave Act, and new paid leave laws. These laws aim to eliminate inequities by providing additional protections for disadvantaged populations.

This Article—the first to analyze administrative burdens across many workplace equity laws—shows that these laws all impose often-onerous administrative burdens. To claim and prove their eligibility for legal protections, workers must navigate additional doctors’ appointments and labyrinthine reporting requirements, at the very times when they are most in need of help and least capable of handling new administrative burdens. By discouraging workers from seeking legal protections or by denying eligible workers their rights due to administrative deficiencies, administrative burdens can neutralize workplace equity laws’ intended protections for disadvantaged populations—thereby perpetuating the very inequities that they sought to correct.

In response, this Article argues that those concerned about workplace equity should move the law in two directions. First, when enacting and interpreting workplace equity laws, such as laws providing paid family leave or paid sick leave, policymakers should minimize administrative burdens imposed on the workers they intend to help. Second, policymakers should consider alternative “workplace justice” laws: universal measures such as a universal right to accommodations or a universal right to paid leave. These workplace justice alternatives not only avoid the “special treatment stigma” often accompanying laws focused on disadvantaged populations, but they also may save employers time and resources that employers had previously devoted to policing workplace equity laws’ eligibility requirements. A new generation of workplace justice laws, combined with enlightened workplace equity laws, offer the keys to truly eliminating workplace inequities.

Keywords: work, employment, workplace, leave, paid leave, paid sick days, accommodations, disability, caregiving, pregnancy, Americans with Disabilities Act, ADA, Family and Medical Leave Act, FMLA, Pregnant Workers Fairness Act, PWFA, admin, administrative burden, administrative burdens, red tape, hassles, formalization, frictions, sludge, transaction costs