Bargaining in the Shadow of Social Institutions: Competing Discourses and Social Change in Workplace Mobilization of Civil Rights

• Date: 01 March 2005
• DOI: http://doi.org/10.1111/j.0023-9216.2005.00076.x
• Published date: 01 March 2005

Bargaining in the Shadow of Social Institutions:

Competing Discourses and Social Change in

Workplace Mobilization of Civil Rights

Catherine R. Albiston

The Family and Medical Leave Act requires employers to provide job-pro-

tected leave, but little is known about how these leave rights operate in prac-

tice or how they interact with other normative systems to construct the

meaning of leave. Drawing on interviews with workers who negotiated con-

tested leaves, this study examines how social institutions influence workplace

mobilization of these rights. I find that leave rights remain embedded within

institutionalized conceptions of work, gender, and disability that shape work-

ers’ perceptions, preferences, and choices about mobilizing their rights. I also

find, however, that workers can draw on law as a culture discourse to chal-

lenge these assumptions, to build coalitions, and to renegotiate the meaning

of leave.

Until recently, the United States was virtually the only major

industrialized country without a family leave policy. Employers

could legally fire workers who needed time off to care for seriously

ill children, ill or injured spouses, or aging and dying parents.

Employers could also legally fire workers unable to work due to

temporary serious illnesses or injuries. And employers could legally

fire women who needed time off for pregnancy, childbirth, or re-

lated medical conditions so long as they also denied time off to

nonpregnant employees who were unable to work. Time off after

the birth of a child remained a benefit provided at employers’

discretion, a benefit primarily available to well-paid professional or

management workers (Kamerman, Kahn, & Kingston 1983).

Law & Society Review, Volume 39, Number 1 (2005)

r2005 by The Law and Society Association. All rights reserved.

11

I wish to acknowledge the generous support provided for this research by the Na-

tional Science Foundation, No. SES-0001905, and by the Sloan Foundation through the

Center for Working Families at the University of California, Berkeley.The views expressed

here are those of the author and not necessarily those of the National Science Foundation,

the Center for Working Families, or the Sloan Foundation. I also wish to thank Jane

Collins, Marianne Constable, Lauren Edelman, Howard Erlanger, Myra Marx Ferree,

Rosann Greenspan, Arlie Hochschild, Bert Kritzer, Kristin Luker, Stewart Macaulay,

Hamsa Murthy, Robert Nelson, Laura Beth Nielsen, Barrie Thorne, and the anonymous

reviewers at Law & Society Review for their helpful and insightful comments on various

versions of this manuscript. Please address correspondence to Catherine Albiston, Juris-

prudence and Social Policy Program, Boalt Hall School of Law, 2240 Piedmont Avenue

#2150, Berkeley, CA 94720-2150; e-mail: calbiston@law.berkeley.edu.

Since 1993, however, the Family and Medical Leave Act

(FMLA) has provided some workers with a legal right to unpaid,

job-protected leave. The FMLA requires covered employers to

provide twelve weeks of leave per year to certain workers who need

time off for family or medical crises.

1

Workers may use FMLA leave

for childbirth or other temporary disabilities, and both men and

women may take leave to care for a sick child, parent, or spouse, or

a new child in their family.

2

The statute protects workers who use

leave from retaliatory harassment, termination, and discrimina-

tion.

3

The law also requires employers to provide leave even if they

do not allow time off for any other reason. In other words, the

statute creates an entitlement because it does not allow employers

discretion to deny leave to qualified workers.

4

New legal rights seem to be an obvious solution to workplace

conflict over family and medical leave because they not only create

an instrumental tool for enforcement, but also reframe the mean-

ing of leave as a legitimate and important entitlement. Like most

civil rights laws, however, the FMLA is primarily enforced through

an individual, private right of action that workers must actively

claim or ‘‘mobilize.’’ Although these formal rights are an important

first step, rights mobilization remains embedded within existing

practices, deeply held beliefs, and taken-for-granted expectations

about work, gender, and disability. This study examines how legal

norms and these other institutionalized systems of meaning influ-

ence the process of mobilizing FMLA rights in the workplace.

This study builds on a long sociolegal tradition that examines

how law interacts with other systems of meaning in particular social

settings. For example, empirical research has demonstrated how

law can be displaced or transformed by alternative normative sys-

tems (Ellickson 1991; Macaulay 1963) or by organizational prac-

tices and goals (Edelman, Erlanger, & Lande 1993; Heimer 1999).

Often, however, these studies treat law and other norms as an ei-

ther/or proposition: either social relationships are ordered accord-

ing to law, or there is ‘‘order without law.’’ Less is known about the

complex process through which law interacts with alternative nor-

mative systems (Jacob 1992). Although other systems of meaning

matter, actors may still draw upon law as a cultural resource to

interpret their social experiences and to influence the behavior of

1

29 U.S.C. § 2612. Workers who have worked for their employers for less than one

year are not eligible for FMLA leave. In addition, workers who work for companies with

less than 50 employees are not covered by the FMLA. 29 U.S.C. § 2611.

2

29 U.S.C. § 2612.

3

29 U.S.C. § 2614, 2615.

4

The statute does, however, allow employers to require medical certification of the

need for leave and to deny leave if the worker fails to provide this certification. 29 U.S.C. §

2613 (see Shiu & Albiston 1995).

12 Bargaining in the Shadow of Social Institutions

others. In this way, law and other social institutions act in concert to

give meaning to social life.

Law may be most likely to interact with other normative sys-

tems when new rights attempt to change long-standing social prac-

tices. Civil rights laws in particular often challenge social

arrangements that evoke strong normative commitments (Engel

& Munger 1996; Krieger 2000). Actors who mobilize these rights

engage not only with legal systems of meaning, but also with the

established practices and expectations that rights were intended to

change. Consequently, civil rights claims can become a site for

contesting, and perhaps changing, the existing cultural frame-

works and practices that help construct social life.

The FMLA provides a fertile location to study how law and

other social institutions interact because these rights challenge

deeply held beliefs about what work and being a good worker

mean. For example, the law erodes certain taken-for-granted ex-

pectations about work, such as unbroken attendance as the meas-

ure of a good worker and employer control over work schedules. It

also undermines traditional ideologies about the gendered division

of labor in the family by requiring work to accommodate family

needs on a gender-neutral basis. And by protecting the jobs of

workers who are temporarily too ill to work, it challenges con-

structions of ‘‘disability’’ and ‘‘work’’ as mutually exclusive catego-

ries. By attempting to change these long-standing work practices

and implicit assumptions about identity, the FMLA reconceptual-

izes the relationships among work, gender, and disability, and cre-

ates an opportunity for social change.

Although the FMLA attempts to change work, the cultural

frameworks that give meaning to work do not disappear overnight.

Workers mobilize their rights to leave in workplaces where these

cultural frames or schema are likely to persist. Although the law

constructs leave-taking as legitimate, implicit norms about work,

gender, and disability may construct very different interpretations

of the same behavior. The analysis that follows examines how these

competing systems of meaning shape workplace rights mobilization

and shows how negotiations over FMLA rights can both reinforce

and transform deeply entrenched understandings of work, gender,

and disability.

The following sections draw on social constructivist theories

from both sociology and sociolegal studies to examine how insti-

tutionalized conceptions of work influence the process of mobiliz-

ing FMLA rights. Using interviews with workers who negotiated

leaves in the workplace, I analyze how social context and social

institutions affect workers’ preferences and choices about mobiliz-

ing their rights. I find that both employers’ resistance to leave

and workers’ interpretations of conflict over leave are shaped by

Albiston 13