Despite their many workplace advances, women remain constrained by an enduring social expectation that they will manage their families' domestic lives. Women will not achieve full workplace equality until men do more at home, and men will not enter the domestic sphere if they face employment retaliation for doing so. Men at Work, Fathers at Home addresses this problem by critically evaluating the legal challenges that fathers and other male caregivers face in proving claims of workplace discrimination. Drawing from Supreme Court precedent and gender theory, the Article explains how masculine norms deter men from asserting their caregiving needs at work, while undermining their ability to prosecute discrimination claims in court. By examining how these men can combat biases against male caregiving, the Article seeks to advance the goal of gender equality for both sexes.
Women are quickly closing some of the most glaring gaps that have divided the sexes for generations. For example, they now earn more college degrees than men (1) and constitute a majority of professionals and managers in the U.S. labor force. (2) Although women still lag behind men in many important areas such as income, executive control, and political representation, (3) their ascendance in other sectors has given rise to a number of bold predictions that the "End of Men" (24) is upon us and that we will soon witness "the Big Flip" (5) when women overtake men in wages, wealth, and social power. However, one enormous barrier still stands in the way of women's workplace advancement: the enduring expectation that they will manage their families' domestic lives. Rooted in cultural mores and social practices, care work remains highly feminized work that most men are reluctant to perform. (6)
The notion that fathers would partially relieve women of this burden remains mostly an unrealized hope. Although second-wave feminists assumed that by enabling women to engage in wage work, men's proportional share of household contributions would increase significantly, (7) that goal has not yet been achieved. Women today continue to work the "second shift" of unpaid domestic chores that Arlie Hochschild famously identified more than twenty years ago. (8) Thus, despite some gains in men's contributions, women still assume eighty percent of childcare responsibilities and perform more than seventy percent of household work. (9)
These obsolete modes of domestic behavior have profound consequences for women. More than eighty percent of working women will become mothers in the course of their careers, and when they do their workplace advancement will end abruptly. (10) While young, childless women earn roughly the same wages as men, their earnings plunge to sixty percent of fathers' wages once they have children. (11) Although discrimination explains part of this "motherhood penalty," (12) the fact remains that parenthood causes women to work dramatically fewer hours outside the home, while men increase their wage work after having children. (13) Thus, men remain bound by, and largely conform to, the historical expectation that they will provide for their families, avoid caregiving, and rely on their wives and partners to attend to domestic work. (14)
Women will not attain full equality at work until men do more at home. Today we hear descriptions of modern, "involved" fathers who want to trade wages for family time to play more active roles in their children's lives. (15) In reality, though, most men pay mere lip service to such ideals, "talking the talk" about equal caregiving but failing to alter their work patterns in ways that actually create more time for childcare. (16) Nevertheless, a few men have begun to offer an alternative model. These fathers resist cultural expectations that result in uninvolved fathering. (17) They spend more time with their children than fathers have at any time since experts began measuring male caregiving. (18) This diverse group includes at-home fathers, single fathers, shared-custody fathers, gay fathers, and fathers who simply refuse to pay the emotional price of detached parenting. This Article is about them and the legal tools they can employ to combat employer resistance to male care work.
Legal claims that involve "family responsibilities discrimination" have risen to prominence only in the last decade. (19) Plaintiffs in these cases (typically women) characterize workplace discrimination based on care work as a form of illegal sex discrimination. (20) To date, these claims have been remarkably successful for women, winning at a rate nearly twice that of other civil rights claims. (21) Yet, as with the feminization of family leave and other work-family policies, the issue of caregiver discrimination has been relegated to the long list of "women's issues" that men mostly marginalize or ignore. (22)
In contrast to women, only a small number of men have asserted claims alleging caregiver discrimination. (23) Although some of these men have successfully challenged basic denials of family leave, courts have been less sympathetic to more complicated allegations of gender bias brought by male caregivers. (24) The failure of these claims, however, does not mean that only women suffer from caregiver discrimination. In fact, stories abound involving employers that harass men for taking paternity leave, demote male employees for attending their partners' medical appointments, and fire fathers for staying home with sick children. (25) Women will not achieve full workplace equality until men do more at home, and men will not enter the domestic sphere if they continue to face employment retaliation for doing so.
Drawing from antidiscrimination law and gender theory, this Article develops a legal framework for challenging such instances of workplace discrimination against male caregivers. Part I explains how working mothers have successfully utilized anti-stereotyping theories to oppose workplace discrimination, whereas caregiving men have thus far failed to effectively combat the distinct stereotypes they experience at work. Because family responsibilities discrimination often involves gender stereotyping, Part II engages in a detailed analysis of the gender stereotypes associated with male caregiving. Utilizing the study of masculinities to frame the discussion, this section examines the gendered presumptions that caregiving men unconsciously challenge.
Masculinities theory, an interdisciplinary field that draws from sociology, psychology, feminist theory, and queer theory, (26) posits that masculinity is something that men "do" rather than something that men "have." (27) Men perform their masculinity for other men to prove that they are not women and not subordinated men. (28) Men's multiple performances explain why theorists favor the term "masculinities" over "masculinity" in order to emphasize the many behaviors men exhibit in different contexts. (29) A man's success or failure in these daily performances generates a hierarchy among men as they constantly strive to establish and reestablish their masculinity within the group. (30) Because men define masculinity in oppositional terms against people and images that they are not, Part II outlines the negative performances that the typical, non-caregiving man stages to comply with the dominant masculine order. In short, a "real" man with children must prove that he is: (1) not nurturing, (2) not dependent, and (3) not vocal about his work-family problems. In contrast, if a man resists these performances, for example, by taking paternity leave or requesting time off to attend a school event, he disobeys the male code and faces immediate sanctions.
Utilizing the foregoing framework for evaluating the biases that caregiving men encounter, Part III analyzes the Supreme Court's treatment of male caregivers through the lens of masculinities theory. The Court has strongly championed the cause of male caregivers on two occasions. (31) Both cases involved men engaged in care work: a husband who nursed his wife after a debilitating car accident, (32) and a father who cared for his infant after the mother's tragic death. (33) Two gendered themes animated each decision: female absence and male breadwinning. In both cases, the wife or mother associated with the male plaintiff was either dead or incapacitated. Consistent with the masculine performances identified in Part II, the men continued to prove their manhood through breadwinning. Although these men resisted the dominant call to disregard their caregiving obligations, they did so in the context of female absence, while satisfying the providership expectation placed upon them by dominant masculine norms.
After a discussion of the gender stereotypes associated with caregiving men and the legal treatment they have received thus far, Part IV considers the unique challenges they face going forward. The Article explains why men who perform care work tend to disrupt gender hierarchies much more profoundly than caregiving women. Their threat to the gendered order may explain in part why courts have been less receptive to claims brought by male caregivers. Unlike men in the past who succeeded before the Supreme Court while abiding by the dominant rules of masculinity, male caregivers who wholly reject masculine ideals face harsher sanctions at work and less sympathy from judges. Without a method for understanding the nature of their gender-based transgressions, some courts may sympathize with employers that punish acts of male caregiving, thereby bolstering traditional notions of masculinity and undermining any change. Here, the study of masculinities offers an effective translative tool. By highlighting the surprisingly elusive fact that men, like women, are gendered beings who can be punished for deviating from prescribed roles, masculinities theory shines a light on the punishments that certain men endure for...