Getting off the mommy track: an international model law solution to the global maternity discrimination crisis.

AuthorRickard, Caraline
PositionAbstract through III. Analysis A. Domestic Efforts 1. The United States, p. 1465-1490

ABSTRACT

Women's roles in workplaces around the globe have been growing steadily for the past half-century. Yet, in everything from pay to advancement, workplace gender discrimination persists, much of it based on women's unique role as child bearers. Of the countless domestic and international efforts to address maternity discrimination, none has been completely successful. Drawing from the history of maternity leave legislation and the examples of domestic and international regimes, this Note proposes a unique solution to an international problem: an international model law. The Global Maternity Protection Act model law proposed here provides global protection for a global problem and aims to make all women equal by providing all women with the same benefits and protections, regardless of nationality. A model law solution is easily adopted and enforced and provides universal equality, a combination of objectives that is unattainable through legislation that is either purely domestic or purely international.

TABLE OF CONTENTS I. INTRODUCTION II. FACTUAL BACKGROUND A. The "Motherhood Penalty" and Other Problems of Maternity Discrimination B. From Paternalism to Parity: The History of Paid Maternity Leave Reform III. ANALYSIS A. Domestic Efforts 1. The United States 2. The United Kingdom 3. Sweden B. International Efforts 1. The Convention on the Elimination of all Forms of Discrimination of 1979 2. Workers with Family Responsibilities Convention of 1981 3. Maternity Protection Convention of 2000 IV. SOLUTION A. Note on the Difficulty of International Solutions B. The Model Law Approach C. The Global Maternity Protection Act V. CONCLUSION I. INTRODUCTION

For every one hundred men who graduated with a college degree of some kind in 2013, 140 women did the same. (1) This phenomenon is hardly new. Women have outpaced men in earning post-secondary degrees every year since 1982, earning a total of 44.1 million degrees between 1982 and 2013--nearly 10 million more degrees than men earned in the same period. (2) In 2013, the U.S. Department of Education projected that women would "earn 61.6 [percent] of all associate's degrees," "56.7 [percent] of all bachelor's degrees," "59.9 [percent] of all master's degrees," and "51.6 [percent] of all doctor[ate] degrees" taken home that year. (3)

Yet something is happening to women between graduation and retirement. While women earned 46 percent of law degrees in 2011, they held only 31 percent of legal jobs and 15 percent of equity partnerships. (4) In 2011, 36.8 percent of MBA graduates were women, but in 2014, only 5.2 percent of Fortune 1000 CEOs were women. (5) Women have earned the majority of PhDs since 2001 but in 2003 held "only 35 percent of tenured or tenure-track faculty" professorships. (6)

Commentators have pointed to four main theories to account for this staggering disparity between the number of women qualified for jobs and the disproportionate number of men who receive them. (7) First, the "glass ceiling" explanation focuses on gender discrimination due to various social causes, such as gender stereotyping. (8) These stereotypes include frowning upon the same personality traits in women that are prized in male leaders--traits like assertiveness and independence. These social causes also include the expectation for women to work in staff positions, "such as human resources and administrative services, rather than ... positions" controlling business operations. (9) The second theory, the "pipeline" argument, suggests that the historically lower number of qualified women in occupations means few women are "in the pipeline" for leadership positions. (10) This argument is discredited by the fact that, for the past thirty years, the majority of qualified graduates flowing into the "pipeline" have been women. (11) Third, the "evolutionary psychology" approach suggests "that women are not genetically predisposed to [leadership] roles." (12) Finally, the "24/7 economy" has been used as an explanation for why women are unable to keep pace with "the time and energy needed ... in today's competitive business environment." (13) Under the 24/7 economy theory, scholars argue that women are more likely to be the head "of [a] single-parent household^ and remain responsible for" the majority of "parenting [and household] duties in two-parent households," and, therefore, are unable to keep up with the demands of "traditional working arrangements ... configured around a career model established in the nineteenth century" that expect complete career dedication. (14)

Building on this fourth approach, researchers at the University of Kentucky have proposed a fifth explanation, the "family-work conflict bias."15 "The family-work conflict bias means that just being a woman signals to a manager that her family will interfere with her work, irrespective of whether or not that woman actually has family-work conflict, is married, has children, or has children of a certain age." (16) The researchers interviewed managers (both male and female) who reported that they felt "that higher-level positions required ... more availability" than lower-level positions, flexibility that they thought women's family responsibilities made them unable to provide. (17) The managers "generally viewed women as having a greater [degree of] family-work conflict." (18) The managers believed that this family-work conflict "is incompatible with a work environment that demands long hours and 'face time.'" (19)

Independent empirical information from around the world supports the family-work conflict bias theory. Numerous studies have shown that "mothers are judged as less competent ... and are less likely to be hired and promoted" than either men or childless women. (20) Women regularly report being made to sign pledges that they will not become pregnant, being forced to undergo pregnancy tests by their employers, or being harassed or fired after becoming pregnant. (21) Two-thirds of young Arab women cannot enter the workforce "because of weak gender discrimination laws and lack of childcare solutions." (22) According to a 2013 report by the United Kingdom's House of Commons Library, nearly "14 [percent] of the 340,000 women who take maternity leave" in the UK each year find their jobs threatened upon return. (23) The Business, Innovation and Skills Committee of the House of Commons also reported in 2012 that "an estimated 30,000 [UK] women ... lost their jobs as a result of pregnancy discrimination," a staggering "8% of all pregnant women in the workforce." (24) The Canadian Saskatchewan Human Rights Commission reports that 10 percent of workplace discrimination complaints cite to pregnancy discrimination. (25)

Recognizing the problem with maternity discrimination, nearly every country in the world has implemented workplace parental protections. Most prominently, every country in the world has implemented paid maternity leave except for Suriname, Papua New Guinea, and the United States. (26) Three international instruments--the United Nations' Convention on the Elimination of All Forms of Discrimination Against Women of 1979, the International Labour Organization's Workers with Family Responsibilities Convention of 1981, and the International Labour Organization's Maternity Protection Convention of 2000--address the right to paid maternity leave and other protections. The benefits of paid maternity leave regimes--including long-term child health, (27) maternal mental health, (28) decreased dependence on public social welfare programs, (29) greater likelihood that women will return to work, (30) and social morality (31)--made these regimes an attractive option for combatting maternity discrimination. Yet, despite global efforts, discrimination persists. In short, professional women all over the world are finding themselves on the proverbial "mommy track" (32)--working shorter hours with fewer responsibilities, lower pay, and less chance...

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