Families are more popular than feminism: exploring the greater judicial success of family and medical leave laws.

• Author: Webber, Kate

"Rather than focusing on prohibiting discrimination on the basis of gender, one might ask what work should look like." (1)

INTRODUCTION

Two federal employment laws advance women's position in the workplace, but one has been much more successful than the other when employee plaintiffs seek to enforce their rights in court. First, Title VII of the Civil Rights Act of 1964 ("Title VII") prohibits sex discrimination in the workforce. Plaintiffs seeking to enforce this statute experience one of the lowest success rates of any civil cause of action. (2) On the other hand, the Family Medical Leave Act of 1993 ("FMLA") provides employees the right to take leave for the birth of a child, medical or family care, and prohibits discrimination against those who use their leave rights. Employees who bring cases under the FMLA have nearly double the chance of winning in court compared with anti-discrimination statutes such as Title VII. (3) The FMLA is more successful despite the fact that, like Title VII's sex discrimination prohibitions, the FMLA benefits women in particular, providing a key support to their workplace advancement. This Article examines the potential causes of the different litigation success rates of Title VII and the FMLA. In doing so, the Article sheds light on judicial decision-making in employment law and suggests avenues for advocates seeking to change women's work life for the better.

Understanding what makes the FMLA successful is of current import because there are many proposed and recently-enacted laws, which, like the FMLA, provide leave benefits to workers. For example, a number of states and municipalities have passed laws to expand employees' ability to take leave from work to care for family or medical issues. (4) The federal Department of Labor has launched an initiative to support these state and local efforts. (5) News coverage further reflects a cultural concern with the issue and an increasing awareness of how employees' limited rights to take leave from work prevent them from addressing their personal or family needs. (6) Given the momentum and interest in leave-based legal reform, it is appropriate to explore how leave laws will be received in the courts when the inevitable need to enforce them arises.

This Article uses three theoretical frameworks--political, psychological, and institutional--to explore how and why cases under the FMLA, and by extension other leave laws, can escape the dismal litigation fates of the anti-discrimination law. Political science theories suggest that the FMLA is more successful because the statute is less controversial and inspires a weaker ideological response in judges than anti-discrimination laws. The theory of cultural cognition suggests that the FMLA is more successful because it does not trigger the strong unconscious resistance associated with discrimination claims. Finally, theories of institutional inequality indicate that the FMLA is more successful because it can undermine the traditional norms of the ideal worker in ways that the anti-discrimination laws cannot. Overall, all three theories point to a consistent explanation for why FMLA claims have better outcomes. Namely, leave laws such as the FMLA have many of the characteristics of a neutral benefit statute, in contrast to anti-discrimination laws' focus on protected classes such as race or gender. Ultimately, understanding what differentiates the outcomes between these related statutes will suggest the best avenues for advocates of gender equality in the workplace.

Part I of the Article introduces the FMLA and other laws affecting an employee's ability to take leave for family care responsibilities. Part II.A looks at the political science models of judicial decision-making and asks whether leave laws such as the FMLA succeed because they are less controversial, or less ideological, than protected class-based statutes. Part II.B looks at the theories of cultural cognition to determine whether they can explain leave laws' relative success. Finally, Part II.C explores the framework of institutional inequality, or the way internalized notions of the ideal worker prevent laws such as Title VII from truly transforming the position of women within the workplace. The Article concludes with the implications for advocates seeking to reform the workplace.

1. Background

   To understand why and how leave laws such as the FMLA may be a better tool for workplace equality, it is necessary to first understand what leave laws regulate, where these laws fit within the context of employment law, and how courts respond to leave laws in particular. All of these statutes attempt to mitigate the conflict between work and family needs by requiring employers to offer benefits to their workers.

   1. The Family Medical Leave Act and Expanded Leave Benefits

      A variety of leave laws provide employees with the ability to take time off from work to care for family or themselves. At the federal level, the FMLA is the most important statute, granting leave rights to millions of workers nationwide. (7) The FMLA requires employers with fifty or more employees to provide covered workers up to twelve weeks of unpaid, job-protected leave: for the birth or adoption of a child, for their own serious medical condition, or to care for a close relative with a serious medical condition. (8) Only employees who have worked for at least a year, and 1,250 hours within the past year, can qualify. (9) The employee who takes leave must be restored to the same or equivalent position and the employer cannot retaliate against the employee for taking the leave. (10)

      State laws also provide crucial leave rights to workers, and some provide expanded benefits beyond what the FMLA offers. For example, in response to the need for compensation and time for family care, four states, California, New Jersey, Rhode Island, and New York, have enacted laws providing for at least a few weeks of paid family leave." (11) The absence of paid leave is one of the most widely criticized aspects of the FMLA. (12) Relatedly, several states have enacted laws requiring paid, short-term sick leave. (13) The federal government has also made some efforts to offer paid sick leave. (14) The nearly forty million workers who have no sick leave benefits must either work while sick or risk the financial harm of losing the day's wage or even losing their job for failing to appear for work. (15) Paid sick leave is recognized as an important supplement to the FMLA for lowwage workers because it provides for time off for the less serious illnesses that the FMLA does not cover. (16)

      In addition to these enacted leave laws, legislators and advocates have offered other bills that address the conflict between work and family needs. There are efforts to enact paid family leave at the state level in New York, Washington, Connecticut, and New Hampshire. (17) Ongoing legislative efforts seek to provide paid leave on a national basis. (18) Various municipalities have similarly proposed laws to require employers to provide paid or at least job-protected sick leave benefits. (19)

   2. The Context of Leave Laws

      All of the existing, new and proposed leave laws offer benefits for workers, but to be fully effective, courts must enforce these statutes. (20) Benefits are not meaningful if employers may deny them without penalty. The question of enforcement is particularly relevant here because with other comparable employments statutes, namely the anti-discrimination laws, plaintiffs routinely lose their cases. Thus, the next steps for understanding the impact of leave laws is to place these statutes within a broader legal context, comparing them to the less successful employment statutes.

      1. Context of Leave Laws: The FMLA Straddles Two Types of Employment Laws

         Federal statutes and regulations govern the relationship between employers and employees in a number of different ways. The National Labor Relations Act ("NLRA") sets standards and protections for unionization efforts in the workplace. (21) Other federal employment laws provide certain minimum standards of employee treatment, prohibiting unsafe work environments in the Occupational Health and Safety Act ("OSHA") (22) and setting rules on child labor, minimum wage, and overtime in the Fair Labor Standards Act ("FLSA"). (23) However, these benefit laws do differentiate among workers in some respect. For example, the FLSA requires overtime only for exempt employees with different impacts on different classes of workers (24) and many of the NRLA protections only apply to employees who belong to a union. (25) These employment laws may nonetheless be distinguished from a second grouping of federal employment laws that base protections on an employee's membership in certain identity-based or inherent, "protected classes." Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment on the basis of race, sex, color, national origin and religion. (26) The Age Discrimination in Employment Act prohibits discrimination on the basis of age, and the Americans with Disabilities Act prohibits discrimination on the basis of disability. (27)

         The FMLA and analogous leave laws are a hybrid of these benefit based and protected-class based employment laws. (28) On the one hand, leave laws resemble the first category and appear as neutral benefit laws. Although leave laws distinguish among employees, they do so not based on inherent characteristics such as race or gender, but rather status as caregiver or suffering from temporary physical illness. (29) Anti-discrimination laws grant workers a right to sue their employers for discriminatory employment actions such as failure to hire, failure to promote, or termination. (30) The FMLA and related leave laws, however, require the provision of direct benefits within the workplace. (31) In this respect, leave laws mirror statutes like OSHA or the FLSA which also mandate the standards...