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

69 Pages Posted: 30 Mar 2009 Last revised: 31 Mar 2015

See all articles by Julie C. Suk

Julie C. Suk

Yeshiva University - Benjamin N. Cardozo School of Law; University of California, Berkeley - Berkeley Comparative Equality & Anti-Discrimination Law Study Group; CUNY - The Graduate Center

Date Written: March 30, 2009

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.

Suggested Citation

Suk, Julie C., Are Gender Stereotypes Bad for Women? Rethinking Antidiscrimination Law and Work-Family Conflict (March 30, 2009). Columbia Law Review, Vol. 110, No. 1, 2010; Cardozo Legal Studies Research Paper No. 262. Available at SSRN: https://ssrn.com/abstract=1370226

Julie C. Suk (Contact Author)

Yeshiva University - Benjamin N. Cardozo School of Law ( email )

55 Fifth Ave.
New York, NY 10003
United States

University of California, Berkeley - Berkeley Comparative Equality & Anti-Discrimination Law Study Group

Boalt Hall
Berkeley, CA 94720-7200
United States

CUNY - The Graduate Center ( email )

365 Fifth Avenue
5th Floor
New York, NY 10016-4309
United States

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