Work and Family: The Gender Paradox and the Limitations of Discrimination Analysis in Restructuring the Workplace

94 Pages Posted: 8 Nov 2015

See all articles by Nancy E. Dowd

Nancy E. Dowd

University of Florida Levin College of Law

Date Written: 1989

Abstract

Talk about work and family is assumed to be women's talk. It is talk about women's lives, our experiences, our feelings. Talk about work and family is tied to women's entry into the workforce and the concomitant redefinition of ourselves and our roles. It is also talk about responsibility and conflict, the conflict between work and family.

In the existing structure of work and family, there is no doubt that women are at the center of the conflict, that women are central to the functioning of that structure. Women shoulder the primary responsibility for family, and it is women who are offered a secondary place at work. We feel the conflict between work and family responsibilities; we feel the highly gendered nature of the existing structure; we live out the difference in our lives. It is the essence of the personal being political.

Thus, talk about work and family is women's talk. The issues raised are women's issues, the resolution of which is essential to our equality. The public debate on work-family issues assumes the truth of this. While an article or testimony may begin with gender neutral language, the language or the references quickly slip towards women.

But talk about work and family, ought not to be assumed to be only women's talk. Men are harmed and affected by the existing work-family structure. Men's voices are silenced and discouraged, overwhelmed by the undertow of their conventional role. If we think of work and family issues as only women's talk, we accept that silencing. If we limit the framing of the issue of work and family to women, we adopt and accept the existing gendered structure of work and family. We see it as only requiring discussion of the role of women in the structure, rather than as an opportunity to question the structure itself.

Moreover, if we accept the circumscription of "women's talk," we not only limit our perspective, but also obscure the powerful impact of factors other than gender on the structure of work and family. Race and class are as critical as gender to the work-family structure, and to the experience and nature of work family conflict.

I argue that it is essential that we recognize this fundamental paradox about work and family: that the structure of work and family, and the nature of the conflict between work and family, is not just a women's issue and a gender issue. We must constantly take women and gender into account because they are inseparable from the existing structure and assumptions of family and work. We otherwise risk ignoring, perpetuating or recreating the gendered structure of work and family. At the same time, however, we must get beyond gender, to redefining the relationship between work and family. We must take account of gender in order to transform the workplace, and get beyond gender in order to imagine a world where gender is not a primary determinant of our choices and our vision.

In this Article, I contend that the recognition of this central paradox means that discrimination analysis is not the primary lens through which we should view work-family issues. Nor should discrimination analysis be the primary paradigm within which we argue or justify their resolution, or orient our public policy. This is so not only because of the nature of the substantive problem, but also because of the conceptual limitations of discrimination analysis itself. Substantively, work-family issues and the structure of the workplace are not influenced solely by sex and gender constructs, but also by powerful constraints of class, race, and post-industrial capitalism. Even to the extent work-family issues are women's issues and gender issues, discrimination analysis is a very partial, limited means to address such issues. Most significantly, the analysis fails to reach structural discrimination or mandate structural reform, and fails to include the broad scope of gender discrimination within the concept of sex discrimination. Recognizing the limitations of discrimination analysis is critical if we are to get beyond the paradox of work-family conflict and begin the project of defining our approach toward, and vision of, a restructured workplace and work-family relationship.

This Article is divided into the following parts. Part I describes the complex manifestations of work-family conflict. Part II presents and explores the paradox, that work-family issues both are and are not women's issues and gender issues. Part III places the paradox in context by examining a specific aspect of the existing workplace structure: the interface between childbirth and the workplace. The discussion reviews maternity leave and parental leave legislation proposed as solutions to workplace inadequacies. Part IV explores a preliminary agenda of means to get beyond the paradox. Part V critiques the discrimination framework in view of the preliminary agenda. In light of this critique, Part VI describes the role of discrimination analysis in work-family issues. Discrimination analysis, though limited, may be a useful component of a broader framework. The potential exists for redefining the terms of the analysis, as well as pushing the boundaries of existing doctrine, particularly regarding occupational segregation and affirmative action. Finally, I conclude by suggesting some conceptual strategies aimed at resolving the gender paradox and reaching beyond gender to transform work and family. This ends where the paradox begins-why gender is not the entire issue, but why it is critical to restructuring in order to eliminate its very predominance and prevent its reinstitutionalization at the core of the work-family relationship.

Keywords: work-family issues, gender paradox, workplace structure, discrimination analysis

Suggested Citation

Dowd, Nancy Elizabeth, Work and Family: The Gender Paradox and the Limitations of Discrimination Analysis in Restructuring the Workplace (1989). Harvard Civil Rights- Civil Liberties Law Review (CR-CL), Vol. 24, No. 79, 1989; University of Florida Levin College of Law Research Paper. Available at SSRN: https://ssrn.com/abstract=2687661

Nancy Elizabeth Dowd (Contact Author)

University of Florida Levin College of Law ( email )

P.O. Box 117625
Gainesville, FL 32611-7625
United States
352-273-0930 (Phone)
352-392-3005 (Fax)

HOME PAGE: http://www.law.ufl.edu/faculty/nancy-e-dowd

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