The daddy double-bind: how the family and medical leave act perpetuates sex inequality across all class levels.

• Author: Palazzari, Kari

For over a decade there has been a great deal of discussion in America about work-family conflict or work-life balance. These discussions have typically focused on the plight of women, mothers in particular, and the inhospitable labor market. (1) Advocates who seek to improve the status of women have been vocal in demanding changes in the workplace. In response, employer policies like job sharing and flextime have become common and awards for the most "family-friendly" workplace are readily visible. (2)

Despite all of this commotion, however, there is a persistent tension between employer expectations and employee responsibilities. Employers still espouse ideal worker norms (3) that require long hours and uninterrupted tenures, which were established by the breadwinner/homemaker family model of the mid-twentieth century. Meanwhile, most families need two wage-earners just to make ends meet. With the continuing decline in real wages, many families simply cannot afford to have one parent stay home. (4) Sociologist Theda Skocpol notes, "[I]n the late 1950s, a high-school educated father could make enough to sustain a family consisting of a homemaker mother and two children at an economic level above the poverty line." (5) Today, only thirty-one percent of married couples with children under eighteen have a father who works and a mother who does not. (6) Skocpol observes, "[W]e no longer have an economy centered around the father-breadwinner who goes off to work at a full-time (or more), well-paid, lifetime job, leaving behind a mother to care for the home and family. Instead, single-parent or two-worker families are prevalent." (7)

Although it is widely recognized that changing family structures creates a "second shift" phenomenon, (8) burdening women with both paid and unpaid labor, these trends also perpetuate women's inequality in other seemingly invisible ways. Lurking just behind the popular discourse about women is a large group of workers whose work-family conflicts are going relatively unnoticed--fathers. Dads in America face as much, if not more, difficulty than morns when they try to strike a balance between their jobs and their families. In fact, a recent survey in Business Week found that men reported greater frustration than women regarding the balance between work and family. (9) Men often encounter subtle societal pressures as well as outright employer hostility. (10) The result is that dads have a harder time stepping out of the traditional breadwinner role to venture across the gender divide into a nurturing, caregiver position. While women have traveled toward work "at the speed of light," men have trekked toward home "at the speed of a glacier." (11) Because men have been unable to change their position, the gendered division of labor in households continues virtually unabated and the goal of sex equality fails to come to fruition.

To address the negative impact on women created by the persistent division of labor, a movement to value unpaid household and care work (12) has been added to the demands for more "family-friendly" workplace policies. While these strategies have some potential to improve the status of women, they fail to fully address the male factor in the gender equation. Men, and fathers in particular, have been on the margins of work-family issues, but progress in women's equality cannot accelerate until the masculine side of the gender binary is also unraveled.

The Family and Medical Leave Act (FMLA) (13) of 1993 was one such attempt at redressing women's inequality through a gender-neutral social policy. (14) The FMLA was aimed at protecting the jobs of caregivers, most of whom are women, without codifying a sex-specific division of labor. However, glaring limitations in the law itself, as well as the judicial interpretation and enforcement that followed, have left most men and women in the same position they occupied when the Act was passed. Two major problems need to be addressed. First, since the Act provides only unpaid family leave, it is seen primarily as a job security statute for middle-and upper-class workers. Providing a mechanism for replacement pay would make the Act more relevant for low- and middle-income workers who cannot afford to go without a paycheck. This would also significantly increase the usage by men who are still primary breadwinners. Second, weak judicial enforcement has left untouched a pervasive hostility on the part of employers. Lack of enforcement presents challenges to men at all class levels, but improving litigation outcomes would be most important for middle- and upper-income workers who can afford to take leave but are afraid to do so.

Without these two changes, the FMLA not only fails to address work-family tensions for most workers, but also fails to interrupt the cycle of inequality that takes over when workers become parents. Women continue to struggle to reconcile work with their traditional caregiver role, while men struggle to reconcile family with their traditional provider role. Work-family conflicts mean that both women and men are marginalized, although in opposite ways. (15)

Both mothers and fathers feel the inadequacy of the FMLA; however, this Article argues that the impact is greater for fathers and significantly inhibits men's movement toward domestic responsibilities. For fathers, the enduring grip of "hegemonic masculinity" (16) demands success as a breadwinner, while the call of "new fatherhood" (17) demands active involvement with and responsibility for daily family life. I call this situation the "daddy double-bind" because, like the "double-bind" women face, (18) the competing demands on fathers leave men with primarily lose-lose "choices." Success as a provider means time away from family, while time spent with family spells failure at work. The FMLA could offer a way out, but it falls short.

To explore and explain the daddy double-bind, this Article begins with a portrait of the modem American family. Part I outlines the average family arrangement in terms of division of labor and parenting trends. Part II looks more specifically at the situation of fathers and the class implications of the daddy double-bind. Part II| dissects the FMLA, including an overview of the law, participation rates, and implications of the Act's provisions. Part IV proposes changes in the FMLA and alternative policies that may begin to dismantle the barriers faced by fathers at all class levels and interrupt the cycle of sex specialization that perpetuates gender inequality. By bringing fathers from the margin of work-family discussions to the center, (19) this Article suggests how the law can accelerate social change and support greater equality across class, as well as across gender.

1. TODAY'S TRADITIONAL AMERICAN FAMILIES

   The most notable trend for American families over the past half century has been the mass entrance of women into the paid labor market. In the early 1950s, only thirty percent of married mothers with school-aged children were working outside the home. (20) Today, that figure is over seventy-seven percent. (21) As women have moved away from a strict homemaker role, the structure of American families has moved away from the breadwinner/homemaker model. Despite this shift, women still face significant economic disadvantages relative to men, and traditional norms remain entrenched.

   1. Women's Woes

      Modern feminist advocacy and activism has been instrumental in illuminating and elevating the status of women for decades. Despite several successes on both the legislative and litigation fronts, two key indicators of women's subordination remain--the wage gap and the division of labor. In 2004, women who worked full-time earned 76.5% of men's wages, up from 59.4% in 1970. (22) Not surprisingly, the gap was worse for women of color--African American women earned sixty-seven percent and Latina women earned fifty-five percent. (23) Overall, the wage gap amounts to $200 billion annually, and will cost the average twenty-five-year-old working woman $523,000 over her lifetime. (24) This loss in income is compounded by a subsequent loss in investment returns, which reduce women's retirement and pension savings. It numerically illustrates the lingering inequality women face throughout their lives.

      Although the wage gap between women and men is significant, the gap between mothers and women without children is even larger than the gap between men and women overall. (25) The first child tends to reduce a woman's income by 7.5%, the second by another eight percent. (26) "Even after controlling for differences in characteristics such as education and work experience, researchers typically find a family penalty of 10-15 percent for women with children as compared to women without children." (27) Likewise, single women make nearly ninety percent of what men do, but married women less than sixty percent. (28) Young women make ninety-four percent of men's wages, but this drops to seventy-three percent by mid-life. (29)

      These statistics signal the particularly dismal status of mothers within the superset of women generally. When work and family conflict, women's wage-earning takes a noticeable hit. A national survey by the Washington Post and ABC News found that nine out of ten women surveyed had made "significant sacrifices at work because of their children." (30) Nearly sixty percent said they gave up or delayed career ambitions, sixty-four percent avoided full-time work outside the home, and forty-seven percent cut back on their hours. (31) Women in "high potential" positions who left their careers when a child was born claim this "choice" was "forced on them by long workweeks, unsympathetic employers, and inflexible workplaces." (32) Work simply would not accommodate family. Given that eighty-five to ninety percent of women become mothers, (33) the inability of mothers to blend gainful employment with family responsibilities is...