The Legal and Policy Implications of the 'Flexibility Stigma'

Journal of Social Issues, Vol. 69, No. 2, 2013, pp. 389-405

17 Pages Posted: 19 Aug 2013 Last revised: 7 Dec 2017

See all articles by Stephanie Bornstein

Stephanie Bornstein

University of Florida Levin College of Law; University of California, Berkeley - Berkeley Comparative Equality & Anti-Discrimination Law Study Group

Date Written: 2013

Abstract

American workplace law prohibits employment decisions based on gender stereotypes and forbids retaliation against employees who take certain job-protected family leaves. Yet new studies documenting the "flexibility stigma" -- the bias against workers who take caregiving leave or take advantage of flexible work policies -- indicate popular perceptions and attitudes that run counter to these legal proscriptions. Three key aspects of the flexibility stigma as documented in these studies suggest legal and policy implications. First, because the flexibility stigma is rooted in gender stereotypes, its effects may be litigable under federal law prohibiting sex discrimination in employment. Second, workplace policies that provide leave or flexible scheduling must also recognize and address bias against those who use them or the policies risk being undermined by workers engaging in bias avoidance. Third, the flexibility stigma operates in workplaces across the class spectrum, indicating a greater urgency for public policy to counteract its effects.

Suggested Citation

Bornstein, Stephanie, The Legal and Policy Implications of the 'Flexibility Stigma' (2013). Journal of Social Issues, Vol. 69, No. 2, 2013, pp. 389-405. Available at SSRN: https://ssrn.com/abstract=2311759

Stephanie Bornstein (Contact Author)

University of Florida Levin College of Law ( email )

P.O. Box 117625
Gainesville, FL 32611-7625
United States

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

Boalt Hall
Berkeley, CA 94720-7200
United States

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