Old problem, new tactic: Making the case for legislation to combat employment discrimination based on family caregiver status

Hastings Law Journal

Volumn 59, Issue 6, 2008, Pages 1463-1490

  Farrell, Noreen ^a   Guertin, Genevieve ^b  

^a Equal Rights Advocates (ERA)   (United States)

^b NONE

Author keywords

[No Author keywords available]

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EID: 54249156633     PISSN: 00178322     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (219)

1. Philipsen v. Univ. of Mich., No. 06-CV-11977-DT, 2007 U.S. Dist. LEXIS 25898, at *7-8 (E.D. Mich. Mar. 22, 2007).
2. Ackerman v. Quilcene Sch. Dist., No. 29300-5-II, 2003 Wash. App. LEXIS 1711, at *6 (Wash. Ct. App. July 29, 2003).
3. Tisinger v. City of Bakersfield, No. F036469, 2002 Cal. App. Unpub. LEXIS 3560, at *2 (Cal. Ct. App. Feb. 27, 2002).
4. JOAN C. WILLIAMS & CYNTHIA CALVERT, Introduction to WORKLIFE LAW'S GUIDE TO FAMILY RESPONSIBILITIES DISCRIMINATION (2006).
5. For a comprehensive discussion about the various facets of family responsibilities, see Joan Williams & Consuela Pinto, Family Responsibilities Discrimination: Don't Get Caught Off Guard, 22 LAB. LAW. 293, 293-94 (2007)
6. (citing Pamela Babcock, Detecting Hidden Bias: You May Not See It, But It's Probably Lurking Among Your Managers - And Perhaps Even In You, 51 HR MAG. 50 (2006) (discussing unexamined biases in the workplace)).
7. FRD disproportionately impacts working mothers, pregnant women or women that are of child-rearing age that may become pregnant. See, e.g., U.S. EQUAL EMPLOYMENT OPPORTUNITY COMM'N, PREGNANCY DISCRIMINATION CHARGES: EEOP & FEPA'S COMBINED: FY 1992-FY 2007, http://www.eeoc.gov/stats/ pregnanc.html (last visited June 1, 2008);
8. Enforcement Guidance: Unlawful Disparate Treatment of Workers with Caregiving Responsibilities, 2 EEOC Compl. Man. (BNA) § 615 (May 23, 2007), available at http://www.eeoc.gov/policy/docs/caregiving.pdf [hereinafter EEOC Guidance]
9. (citing Laura T. Kessler, The Attachment Gap: Employment Discrimination Law, Women's Cultural Caregiving, and the Limits of Economic and Liberal Legal Theory, 34 U. MICH. J.L. REFORM 371, 378-80 (2001), available at http://www.eeoc.gov/policy/docs/caregiving.pdf (discussing women's continued role as primary caregivers in our society and citing studies)).
10. See discussion infra Part I and accompanying notes.
11. Peggie R. Smith, Parental-Status Employment Discrimination: A Wrong in Need of a Right?, 35 U. MICH. J.L. REFORM 569 (2002) [hereinafter Smith, Parental-Status]. Professor Smith has made other important contributions to the work/life debate. For example, Professor Smith has contributed important work regarding the exploitation of paid care workers.
12. See, e.g., Peggie R. Smith, Regulating Paid Household Work: Class, Gender, Race and Agendas of Reform, 48 AM. U. L. REV. 851 (1999). Professor Smith has also explored different legislative models for new federal statutes.
13. See Peggie R. Smith, Accommodating Routine Parental Obligations in an Era of Work-Family Conflict: Lessons from Religious Accommodations, 2001 WIS. L. REV. 1443 (2001).
14. See Smith, Parental-Status, supra note 8, at 569-73.
15. Id. at 585-612.
16. Id. at 610-12.
17. Id. at 613-21.
18. See infra notes 17-18 and accompanying text.
19. See Simpson v. Dist. of Columbia Office of Human Rights, 597 A.2d 392, 394 (D.C. 1991) (plaintiff's termination related to her caregiving commitments to her disabled father); see also sources cited infra note 39.
20. See EEOC Guidance, supra note 6, at § I.B.
21. See infra note 163 and accompanying text.
22. The Center for WorkLife Law at University of California, Hastings College of the Law has documented a nearly 400% increase in FRD-related cases in the last ten years, as compared to the prior decade. MARY STILL, LITIGATING THE MATERNAL WALL: U.S. LAWSUITS CHARGING DISCRIMINATION AGAINST WORKERS WITH FAMILY RESPONSIBILITIES 7 (2006), available at http://www.uchastings.edu/site_files/WLL/ FRDreport.pdf.
23. The EEOC has recognized that men's role in family caregiving has increased. "Between 1965 and 2003, the amount of time that men spent on childcare nearly tripled . . . ." EEOC Guidance, supra note 6 (citing Donna St. George, Fathers Are No Longer Glued to Their Recliners, WASH. POST, Mar. 20, 2007, at A11 (noting men's childcare work increased from 2.5 hours to 7 hours per week between 1965 and 2003)). The Center for WorkLife Law at University of California, Hastings College of the Law has reported that 8% of claimants are men; they typically claim that they were denied leave available to women.
24. Joan Williams, Family Responsibilities Discrimination: The Next Generation of Employment Discrimination Cases, in 36TH ANNUAL INSTITUTE ON EMPLOYMENT LAW 2007, at 336 (2 PLI Litig. & Admin. Practice, Course Handbook Series No. H-762, 2007).
25. The EEOC has also recognized that effects of caregiving responsibilities are more pronounced among some women of color, particularly African American women, who have a long history of working outside the home, are more likely to be employed than other women raising children, and more likely to be raising children in a single parent household than white or Asian American women. EEOC Guidance, supra note 6
26. (citing Lynette Clemetson, Work vs. Family, Complicated by Race, N.Y. TIMES, Feb. 9, 2006, at G1 (discussing unique work-family conflicts faced by African American women));
27. see also LONNAE O'NEAL PARKER, I'M EVERY WOMAN: REMIXED STORIES OF MARRIAGE, MOTHERHOOD, AND WORK 29 (2005);
28. JENNIFER TUCKER & LESLIE R. WOLFE, DEFINING WORK AND FAMILY ISSUES: LISTENING TO THE VOICES OF WOMEN OF COLOR 4 (1994);
29. BUREAU OF LABOR STATISTICS, U.S. DEP'T OF LABOR, REPORT NO. 996, WOMEN IN THE LABOR FORCE: A DATABOOK 13 tbl.5 (2006), available at http://www.bls.gov/cps/wlf-databook-2006.pdf (reporting that in 2005, 68% of African American women with children under the age of three were in the workforce compared with 58% of white women, 53% of Asian American women, and 45% of Hispanic women);
30. Population Reference Bureau, Diversity, Poverty Characterize Female Headed Households, http://www.prb.org/Articles/2003/ DiversityPovertyCharacterizeFemaleHeadedHouseholds.aspx (last visited June 1, 2008) (reporting that about 5% of white or Asian American households are female-headed households with children compared with 22% of African American households and 14% of Hispanic households). The EEOC acknowledged that women of color may devote more time to caring for extended family members.
31. Tavia Simmons & Jane Lawler Dye, Grandparents Living with Grandchildren: 2000, at 3 tbl.1 (Dep't of Commerce, U.S. Census Bureau, Oct. 2003), available at http://www.census.gov/prod/2003pubs/c2kbr-31.pdf (showing a higher proportion of African American and Native American grandmothers responsible for raising grandchildren than white, Asian, or Hispanic grandmothers).
32. See generally Williams & Pinto, supra note 5, at 299-327 (providing a comprehensive overview of strategies used to combat FRD); see also WILLIAMS & CALVERT, supra note 4.
33. 42 U.S.C. § 2000e (2006); see, e.g., Santiago-Ramos v. Centennial P.R. Wireless, Corp., 217 F.3d 30, 46 (1st Cir. 2000).
34. 42 U.S.C. § 2000e(k) (2006). This includes women who may become pregnant. U.A.W. v. Johnson Controls, Inc., 499 U.S. 187, 206 (1991).
35. 29 U.S.C. § 206(d) (2006).
36. 29 U.S.C. §§ 2601-2654, 5 U.S.C. §§ 6381-6385 (2006); see, e.g., Liu v. Amway, Corp., 347 F.3d 1125, 1131-33 (9th Cir. 2003).
37. 42 U.S.C. § 12112(b)(4) (2005); see, e.g., Jackson v. Serv. Eng'g, 96 F. Supp. 2d 873, 878 (S.D. Ind. 2000).
38. 29 U.S.C. § 1132 (2006).
39. State common law actions include wrongful discharge, breach of contract, and implied covenant of good faith and fair dealing. See, e.g., Joan Williams & Nancy Segal, Beyond the Maternal Wall: Relief for Family Caregivers who Are Discriminated Against on the Job, 26 HARV. WOMEN'S L.J. 77, 157-60 (2003).
40. See supra notes 19-26 and accompanying text.
41. Tisinger v. City of Bakersfield, No. F036469, 2002 Cal. App. Unpub. LEXIS 3560, at *2 (Cal. Ct. App. Feb. 27, 2002).
42. See id. at *2-8, *17-18.
43. CAL. GOV'T CODE §§ 12900-12996 (2008).
44. Tisinger, 2002 Cal. App. Unpub. LEXIS 3560, at *3-4.
45. Id. at *1-2.
46. See, e.g., infra notes 36, 42, 46, and accompanying text.
47. See generally infra notes 36, 42, 46, and accompanying text.
48. See Smith, Parental-Status, supra note 8, at 569-73.
49. ALASKA STAT. § 18.80.200 (2006) (emphasis added). A number of cities have passed "parenthood" variations. See e.g., ATLANTA, GA., ORDINANCE 2000-79, § 1, (2000); CHICAGO, ILL., CHICAGO HUMAN RIGHTS ORDINANCE, MUNICIPAL CODE § 2-160-020 (2007).
50. Smith, Parental-Status, supra note 8, at 569.
51. Id.
52. See EEOC Guidance, supra note 6 (citing U.S. DEP'T OF HEALTH & HUMAN SERV., INFORMAL CAREGIVING: COMPASSION IN ACTION (1998), available at http://aspe.hhs.gov/daltcp/reports/Carebro2.pdf;
53. Peggie R. Smith, Elder Care, Gender, and Work: The Work-Family Issue of the 21st Century, 25 BERKELEY J. EMP. & LAB. L. 351, 355-60 (2004));
54. Emily Wood, The Rights of Elder Caregivers in the Context of Family Responsibilities Discrimination (Dec. 18, 2007) (unpublished seminar paper) (on file with the Center for WorkLife Law at University of California, Hastings College of the Law).
55. S.B. 836, 2006-07 Reg. Sess. (Cal. 2007) (proposed amendment to the California Fair Employment and Housing Act authored by State Senator Sheilah Kuehl).
56. Id.
57. Id. (emphasis added). An individual who "is regarded as" having this characteristic is also protected. Id. A number of localities also have statutes that prohibit employment discrimination based on "familial status." See, e.g., MIAMI-DADE, FLA., CODE OF ORDINANCES § 11A-26 (2007); TAMPA, FLA., CODE OF ORDINANCES, HUMAN RIGHTS § 12-26 (2007); HOWARD COUNTY, MD., CODE § 12.208 (2008).
58. Cal. S.B. 836, 2006-07 Reg. Sess. (Cal. 2007).
59. See, e.g., Kathleen Fuegen et al., Mothers and Fathers in the Workplace: How Gender and Parental Status Influence Judgments of Job-Related Competence, 60 J. SOC. ISSUES 737, 737-54 (2004).
60. See, e.g., Tisinger v. City of Bakersfield, No. F036469, 2002 Cal. App. Unpub. LEXIS 3560, at *2 (Cal. Ct. App. Feb. 27, 2002).
61. D.C. CODE ANN. § 2-1402.11 (2001) (emphasis added).
62. New South Wales Consolidated Acts, Anti-Discrimination Act of 1977, Part 4B, §§ 49(S), (T), (U) (2008), available at http://www.austlii.edu.au/au/legis/nsw/consol_act/aa1977204/.
63. Id.
64. Id. The actual wording of the statute defines " responsibilities as a carer" as a reference to the person's responsibilities to care for or support: (a) any child or step-child of the person (whether or not under the age of 18 years) who is: (i) wholly or substantially dependent on the person, or (ii) in need of care or support, or (b) any child or adult who is in need of care or support and: (i) of whom the person is guardian, or (ii) for whom the person has parental responsibility under a law of the Commonwealth or this State, or (iii) in relation to whom the person is an authorised carer within the meaning of the Children and Young Persons (Care and Protection) Act 1998, or (c) any immediate family member of the person who is in need of care or support, being one of the following: (i) a spouse or former spouse of the person or of a spouse or former spouse of the person, (ii) a grandchild or step-grandchild of the person or of a spouse or former spouse of the person, (iii) a parent or step-parent of the person or of a spouse or former spouse of the person, (iv) a grandparent or step-grandparent of the person or of a spouse or former spouse of the person, (v) a brother or sister, or step-brother or sister, of the person or of a spouse or former spouse of the person. Id. (emphasis added).
65. Id.
66. See Smith, supra note 8, at 573 (asserting that, "when compared with the data regarding racial or gender discrimination . . . the evidence does not exist to indicate that employment discrimination against parents based on erroneous assumptions is a serious problem").
67. See Michelle Budig & Paula England, The Wage Penalty for Motherhood, 66 AM. SOC. REV. 204, 204-25 (2001) (finding that, after controlling for other factors affecting wages, mother employees on average suffer a 5% wage penalty per child);
68. Amy J.C. Cuddy et al., When Professionals Become Mothers, Warmth Doesn't Cut the Ice, 60 J. SOC. ISSUES 701, 709-11 (2004) (finding, in a study using 122 participants, that female employees who become mothers are perceived as warmer, but less competent, and that participants reported less interest in hiring, promoting and educating mother-employees relative to childless employees and father-employees); Fuegen et al., supra note 44, at 737-54 (2004) (finding that study participants judged parents to be less committed to employment than nonparents, and that father employees were held to a more lenient standard than were mother employees and childless male employees);
69. Barbara Masser et al., 'We Like You, But We Don't Want You' - The Impact of Pregnancy in the Workplace, 57 SEX ROLES 703, 703-12 (2007) (finding that in a controlled study, a pregnant job candidate, a future caregiver, was recommended for a lower starting salary and less likely to be recommended for hiring than was the non-pregnant candidate).
70. Stephen Benard, In Paik & Shelley J. Correll, Cognitive Bias and the Motherhood Penalty, 59 HASTINGS L.J. 1359 (2008).
71. See Madeline E. Heilman, Description and Prescription: How Gender Stereotypes Prevent Women's Ascent up the Organizational Ladder, 57 J. SOC. ISSUES 657, 658-60 (2001) (discussing descriptive gender stereotypes as those that ascribe certain traits to women and men, and the attendant expectations that women, as a result of such stereotypes, will, for example, produce an inferior work product to those of men);
72. see also Diana Burgess & Eugene Borgida, Who Women Are, Who Women Should Be: Descriptive and Prescriptive Gender Stereotyping in Sex Discrimination, 5 PSYCHOL. PUB. POL'Y & L. 665, 665-92 (1999) (reviewing research literature involving descriptive and prescriptive gender stereotypes and discussing how these types of stereotypes emerge in sex discrimination and sexual harassment litigation).
73. Faye J. Crosby, Joan C. Williams & Monica Biernat, The Maternal Wall, 60 J. SOC. ISSUES 675, 675-82 (2004) (discussing the influence of stereotypic thinking on behavior and the wage gap between mothers and non-mothers);
74. Francine M. Deutsch & Susan E. Saxon, The Double Standard of Praise and Criticism for Mothers and Fathers, 22 PSYCHOL. WOMEN Q. 665, 665-83 (1998) (finding that mothers reported receiving criticism more than did fathers for too little involvement at home or too much involvement in paid work);
75. Lawrence H. Ganong & Marilyn Coleman, The Content of Mother Stereotypes, 32 SEX ROLES 495, 495-512 (1995) (identifying and reporting the content of stereotypes related to married mothers, stepmothers, divorced mothers, and never married mothers and as juxtaposed against the attribution of those traits to women in general).
76. See Joan Williams & Stephanie Bornstein, Family Responsibilities Discrimination and Developments in the Role of Stereotyping and Implicit Bias Evidence, 59 HASTINGS L.J. 1311, 1329-30 (noting that, "[n]ot surprisingly, researchers have found that women who use family-friendly policies at work encounter stigma that leads to lower wage rates and documented a heavy stigma associated with the use of flexible schedules,"
77. (citing Jennifer Glass, Blessing or Curse? Work-Family Policies and Mother's Wage Growth Over Time, 31 WORK & OCCUP'S 367 (2004))(footnotes omitted);
78. CYNTHIA FUCHS EPSTEIN ET AL., THE PART-TIME PARADOX: TIME NORMS, PROFESSIONAL LIFE, FAMILY AND GENDER (1999);
79. JOAN C. WILLIAMS & CYNTHIA THOMAS CALVERT, BETTER ON BALANCE? THE CORPORATE COUNSEL WORK/LIFE REPORT (The Project for Attorney Retention, Corporate Counsel Project, Final Report 2003), available at http://www.uchastings.edu/site_files/WLL/ betteronbalance.pdf;
80. JOAN C. WILLIAMS & CYNTHIA THOMAS CALVERT, BALANCED HOURS: EFFECTIVE PART-TIME POLICIES FOR WASHINGTON LAW FIRMS (The Project for Attorney Retention, Final Report 2d ed. 2001), available at http://www.uchastings.edu/site_files/WLL/ BalancedHours2nd.pdf).
81. See Cuddy et al., supra note 52; Fuegen et al., supra note 44.
82. See, e.g., M. Snyder & W. Swann, Behavioral Confirmation in Social Interaction: From Social Perception to Social Interaction, 14 J. EXPMT'L SOC. PSYCHOL. 148, 148-62 (1978).
83. Icek Ajzen & Martin Fishbein, The Influence of Attitudes on Behaviors, in THE HANDBOOK OF ATTITUDES 173, 193 (Dolores Albarracín et al. eds., 2005).
84. Ganong & Coleman, supra note 55.
85. Id. at 502-05.
86. Id.
87. Id.
88. Id.
89. Id.
90. Fuegen et al., supra note 44.
91. Id. at 741.
92. Id. at 744-48.
93. Id.
94. Id.
95. Id.
96. Cuddy et al., supra note 52.
97. Id. at 701.
98. Id. at 701, 711.
99. Id.
100. Id. at 714-15.
101. Williams & Bornstein, supra note 56 at 1322.
102. Id.
103. Martin Malin, Fathers and Parental Leave Revisited, 199 N. ILL. U. L. REV. 25, 39-43 (1998).
104. See generally Alice Eagly & Valerie Steffen, Gender Stereotypes, Occupational Roles, and Beliefs About Part-Time Employees, 10 PSYCHOL. WOMEN Q. 252 (1986).
105. Ackerman v. Quilcene Sch. Dist., No. 29300-5-II, 2003 Wash. App. LEXIS 1711, at *5 (Wash. Ct. App. July 29, 2003).
106. Id.
107. Id. at *8-9.
108. Id. at *22.
109. Id. at *22 n.12.
110. See, e.g., Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 121-23 (2d Cir. 2004); Lust v. Sealy, 243 F. Supp. 2d 908, 911-19 (W.D. Wis. 2003).
111. 365 F.3d at 121-23.
112. Smith, Parental-Status, supra note 8, at 589-91.
113. Back, 365 F.3d at 121-23.
114. EEOC Guidance, supra note 6, at §§ I-III.
115. Id. at § II.A.2 ("Employment decisions that discriminate against workers with caregiving responsibilities are prohibited by Title VII if they are based on sex or another protected characteristic, regardless of whether the employer discriminates more broadly against all members of the protected class. For example, sex discrimination against working mothers is prohibited by Title VII even if the employer does not discriminate against childless women.").
116. See Smith, Parental-Status, supra note 8, at 611.
117. Id. at 594-95.
118. Id. at 595.
119. Joan Williams & Stephanie Bornstein, Caregivers in the Courtroom: The Growing Trend of Family Responsibilities Discrimination, 41 U.S.F. L. REV. 171, 173 (2006).
120. Id.; see also Williams & Bornstein, supra note 56, at 1322.
121. Williams & Bornstein, supra note 95.
122. Id. at 173-74.
123. Id. at 174.
124. 478 F.3d 640, 643 (4th Cir. 2007).
125. Id. at 643.
126. Id.
127. Id. at 649.
128. 243 F. Supp. 2d 908, 913 (W.D. Wis. 2003).
129. Id. at 912.
130. Id. at 919.
131. See Piantanida v. Wyman Ctr., 116 F.3d 340, 341 (8th Cir. 1997) (plaintiff demoted to a position that defendant employer claimed would be more appropriate "for a new mom to handle"); Philipsen v. Univ. of Mich., No. 06-CV-11977-DT, 2007 U.S. Dist. LEXIS 25898, at *8-11 (E.D. Mich. Mar. 22, 2007) (defendant employer asked whether plaintiff would rather stay home with her children before offering her the job, and then rescinded an offer of employment because it questioned plaintiff's commitment to the job after she merely inquired about a flex-time work schedule); Hess-Watson v. Potter, 2004 U.S. Dist. LEXIS 53, at *5 (E.D. W. Va. 2004) (plaintiff employee alleged that defendant employer gave mothers of young children undesirable work positions); Wensel v. State Farm Mutual Auto. Ins. Co., 218 F. Supp. 2d 1047, 1061 (N.D. Iowa 2002) (plaintiff constructively discharged in her third trimester of pregnancy after supervisor commented that child rearing adversely impacted worker productivity); Salvatore v. KLM Royal Dutch Airlines, No. 98 CIV. 2450, 1999 U.S. Dist. LEXIS 15551, at *29-30 (S.D.N.Y. Sept. 30, 1999) (finding that comments by supervisor to plaintiff employee that women with children should stay at home, and suggesting that plaintiff employee derived sexual gratification from breast-feeding her child did not amount to actionable sexual harassment because it was unrelated to plaintiff's gender); Ackerman v. Quilcene Sch. Dist., No. 29300-5-II, 2003 Wash. App. LEXIS 1711, at *6 (Wash. Ct. App. July 29, 2003) (plaintiff laid off while on maternity leave, while other employees without children remained employed; her employer assured her that it would be a "win-win situation" to stay at home with her babies and collect unemployment).
132. Philipsen v. Univ. of Mich., No. 06-CV-11977-DT, 2007 U.S. Dist. LEXIS 25898, at *7 (E.D. Mich. Mar. 22, 2007).
133. Id. at *7-8.
134. Id.
135. Id. at *9-10.
136. Id. at *27. The Court specifically noted: To allow Plaintiff to argue that Defendant discriminated against her as compared to women without young children would turn this gender discrimination case into a parental discrimination case. Instead, the court agrees with Defendant that "gender-plus plaintiffs can never be successful if there is no corresponding subclass of members of the opposite gender." Id.
137. No. 7:03CV00389, 2004 U.S. Dist. LEXIS 53, at *2-4 (W.D. Va. Jan. 5, 2004).
138. Id. at *4.
139. Id. at *5.
140. Id. at *7.
141. 597 A.2d 392, 394 (D.C. 1991).
142. Id.
143. Id. at 404.
144. Id. at 405-06.
145. Id. at 405.
146. 29 U.S.C. §§ 701-796 (2005).
147. Simpson, 597 A.2d at 405-06.
148. Smith, Parental-Status, supra note 8, at 600-02.
149. Id. at 601.
150. Id. (citing LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 16-23 (3d ed. 2000)); see also Korematsu v. United States, 323 U.S. 214, 215 (1944).
151. See United States v. Carolene Products Co., 304 U.S. 144, 152 n.4 (1938); Bruce A. Ackerman, Beyond Carolene Products, 98 HARV. L. REV. 713, 718 (1985) (explaining that the four operative terms of Carolene Products are "(1) prejudice, (2) discrete, (3) insular, and (4) minorities").
152. See Thomas W. Simon, Suspect Class Democracy: A Social Theory, 45 U. MIAMI L. REV. 107, 155 (1990) ("Individual factors . . . do not provide a precise formula for clearly determining if and when a social group qualifies as a suspect class. Instead, the factors, along with the mitigating concerns, interrelate. The case or narrative for suspect class status must be constructed from the sum of these factors.").
153. See Ackerman, supra note 127, at 717-18, 723-24; Michael C. Dorf, Equal Protection Incorporation, 88 VA. L. REV. 951, 966-67 (describing the results of applying the Carolene Products factors as a "messy hodgepodge").
154. See Ackerman, supra note 127, at 718.
155. Id. at 715; see also Winston P. Nagan, Dean Kronman's Diversity Narrative: Liberal Education Ideology Versus Social Justice?, 52 FLA. L. REV. 897, 912 (2000) (suggesting that social justice advancements achieved by "white women" and "hispanics" via the Carolene Products analysis is based on the discrimination experienced by African Americans, and that "[t]hese complex claims to social justice . . . are structured around a legal drama whose parameters are defined by the Carolene Products footnote" (italics added)).
156. See, e.g., Grutter v. Bollinger, 539 U.S. 306, 326-27 (2003) (applying strict scrutiny to racially based public law school admissions process); Adarand Constr. v. Pena, 515 U.S. 200, 222-26 (1995) (applying strict scrutiny to racial classification in federal government contract law); City of Richmond v. J.A. Croson, 488 U.S. 469, 490-511 (1989) (applying strict scrutiny to racial classification in city contract law); Univ. of Cal. Regents v. Bakke, 438 U.S. 265, 290-91 (1978) (applying strict scrutiny to racial classification in state university admissions procedure); Trimble v. Gordon, 430 U.S. 762, 765-68 (1977) (declining to apply strict scrutiny to classifications based on illegitimacy, applying intermediate scrutiny instead); Korematsu v. United States, 323 U.S. 214, 215 (1944) (applying strict scrutiny to racially-based internment camp legislation); Felix Gilman, The Famous Footnote Four: A History of the Carolene Products Footnote, 46 S. TEX. L. REV. 163, 215-17 (2004);
157. Michael A. Scaperlanda, Illusions of Liberty and Equality: An "Alien's" View of Tiered Scrutiny, Ad Hoc Balancing, Governmental Power, and Judicial Imperialism, 55 CATH. U. L. REV. 5, 22 (2005); Simon, supra note 128, at 132.
158. See, e.g., Bakke, 438 U.S. 265 (applying strict scrutiny to an affirmative action program but not employing the "discrete and insular minority" factors in their analysis); Loving v. Virginia, 388 U.S. 1 (1967) (striking down anti-segregation laws on Equal Protection grounds but making no mention of Carolene Products).
159. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 442-43, 450 (1985) (striking down a local ordinance discriminating against the developmentally disabled despite declining to accord the disabled suspect class status); Trimble, 430 U.S. at 765-68 (striking down legislation discriminating on the basis of illegitimacy, despite declining to apply strict scrutiny).
160. See, e.g., City of Cleburne, 473 U.S. at 442-43; Trimble, 430 U.S. at 765-68; Craig v. Boren, 429 U.S. 190, 197-98 (1976); Korematsu, 323 U.S. at 216.
161. See, e.g., Nguyen v. Immigration and Naturalization Serv., 533 U.S. 53, 60-61 (2001); United States v. Virginia, 518 U.S. 515, 531-34 (1996); J. E. B. v. Ala. ex rel. T. B., 511 U.S. 127, 135 (1994); Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 723-24 (1982); Michael M. v. Superior Court, Sonoma County, 450 U.S. 464, 468-69 (1981); Orr v. Orr, 440 U.S. 268, 279 (1979); Califano v. Goldfarb, 430 U.S. 199 (1977); Craig, 429 U.S. at 197-98; Mark Strasser, Statutory Construction, Equal Protection, and the Amendment Process: On Romer, Hunter, and Efforts to Tame Baehr, 45 BUFF. L. REV. 739 (1997).
162. See, e.g., Nev. Dept. of Human Res. v. Hibbs, 538 U.S. 721, 728-29, 735 (2003).
163. See Mass. Bd. of Retirement v. Murgia, 427 U.S. 307, 320 (1976) (Marshall, J., dissenting) ("It cannot be gainsaid that there remain . . . classes, not now classified as 'suspect,' that are unfairly burdened by invidious discrimination unrelated to the individual worth of their members . . . .").
164. Smith, Parental-Status, supra note 8, at 602-03.
165. Id. at 605-06.
166. See generally Crosby, Williams & Biernat, supra note 55, at 675-82.
167. Smith, Parental-Status, supra note 8, at 609.
168. See discussion infra Part II and accompanying notes.
169. Smith, Parental-Status, supra note 8, at 610.
170. See JOAN WILLIAMS, UNBENDING GENDER: WHY FAMILY AND WORK CONFLICT AND WHAT TO DO ABOUT IT 1 (2000) (discussing how, in a system of domesticity, caregivers are marginalized socially and economically: "Caregivers often cannot perform as ideal workers. Their inability to do so gives rise to domesticity's second defining characteristic: its system of providing for caregiving by marginalizing the caregivers, thereby cutting them off from most of the social roles that offer responsibility and authority . . . .").
171. Ackerman v. Quilcene Sch. Dist., No. 29300-5-II, 2003 Wash. App. LEXIS 1711, at *6 (Wash. Ct. App. July 29, 2003).
172. Id. at *2-5, *33-34.
173. Id. at 22 n.12.
174. Fair Labor Standards Act of 1938, 29 U.S.C. §§ 201-219 (2006).
175. See, e.g., California Fair Employment and Housing Act, CAL. GOV'T CODE §§ 12940-12591 (2008).
176. 42 U.S.C. § 2000e(k) (2006); see Gen. Elec. Co. v. Gilbert, 429 U.S. 125 (1976) (denying Title VII protection to pregnant women as a class using Equal Protection analysis).
177. 42 U.S.C. §§ 12101-12213, 47 U.S.C § 225 (2006); see City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 442-43 (1985) (denying suspect class status to the mentally challenged).
178. 42 U.S.C. § 2000e(k); see Gen. Elec., 429 U.S. 125; see also Andrew Weissmann, Sexual Equality Under the Pregnancy Discrimination Act, 83 COLUM. L. REV. 690, 691 (1983) (noting that Congress passed the PDA in response to Gilbert).
179. Ultimately, suspect classification, and its accompanying scrutiny under the Fourteenth Amendment, may be undesirable for caregivers if adequate accommodation laws are to be passed for their benefit. Using strict scrutiny, the Supreme Court has invalidated a host of affirmative action programs designed to benefit job or education applicants on the basis of race. See Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 127 S. Ct. 2738, 2768 (2007) (holding that school district's program designed to effectuate racial balance in public schools denied students equal protection by classifying students by race); Gratz v. Bollinger, 539 U.S. 244, 276 (2003) (holding that admissions policy taking applicants' race into account violated the Equal Protection Clause); Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 238-39 (1995) (invalidating federal government's policy of presumptive preference for minority businesses in awarding government contracts); City of Richmond v. J.A. Croson, 488 U.S. 469, 510-11 (1989) (invalidating, under strict scrutiny analysis, a city council plan to award a certain percentage of city contracts to minority-owned businesses). A suspect class designation for caregivers could prevent accommodations much as it has prevented affirmative action accommodations on the basis of race in educational and employment settings.
180. For a comprehensive analysis of the role of law in creating institutional change, see supra note 5 and accompanying text; see also WILLIAMS & CALVERT, supra note 4.
181. Simpson v. D.C. Office of Human Rights, 597 A.2d 392, 394 (D.C. 1991).
182. See MacNabb v. MacCartee, 804 F. Supp. 378, 381 (D.D.C. 1992).
183. Id. at 379.
184. Id. at 379, 381.
185. Id. at 380-81.
186. Id. at 380.
187. In Bailey v. Schott Gallaher, 480 S.E.2d 502 (Va. 1997), the Virginia Supreme Court allowed a female employee who had been fired after having a baby to pursue a wrongful termination claim premised on the claim that her termination constituted gender discrimination and therefore violated Virginia's public policy. Id. at 505.
188. See, e.g., Rivera v. Cherry Hill Convalescent Ctr., No. 04-2449, 2006 U.S. Dist. LEXIS 30117 (D.N.J. May 17, 2006) (employer that fired an at-will employee for missing a shift due to child care responsibilities did not violate the public policy underlying New Jersey's child neglect laws); Lloyd v. AMF Bowling Ctrs., 985 P.2d 629 (Ariz. 1999) (citing Upton v. JWP Businessland, 682 N.E.2d 1357 (Mass. 1997), in holding that defendant employer did not violate public policy in firing an employee who could not report to work unexpectedly due to child care duties); Upton, 682 N.E.2d 1357 (finding that Massachusetts' broad policies of protecting the family unit did not transform the discharge of an employee who could not work particular hours into a discharge in violation of public policy); Hampton v. Armand, 834 A.2d 1077 (N.J. Super. Ct. App. Div. 2003) (finding that FMLA does not support a public policy against terminating employees for taking leave when they have been employed for less than twelve months); Hundley v. Dayton Power & Light, 774 N.E.2d 330 (Ohio Ct. App. 2002) (finding that Ohio had no clear public policy against terminating an employee for requesting leave to care for injured relatives); Ackerman v. Quilcene Sch. Dist., No. 29300-5-II, 2003 Wash. App. LEXIS 1711 (Wash. Ct. App. July 29, 2003) (dismissing an employee's wrongful discharge claim because Washington had no clear public policy against family status discrimination in employment).
189. 682 N.E.2d 1357.
190. Id. at 1358.
191. Id. at 1359.
192. Id. at 1360.
193. Id. at 1362.
194. 985 P.2d 629 (Ariz. 1999).
195. Id. at 630.
196. Id.
197. Id. at 630-31.
198. Id. at 631.
199. Id. at 632.
200. Id.
201. Id.
202. No. 04-2449, 2006 U.S. Dist. LEXIS 30117 (D.N.J. May 17, 2006).
203. Id. at *6.
204. Id.
205. Id. at *9.
206. Id. at *13-14.
207. Id. at *14.
208. Id. at * 16.
209. Id. at *21-26.
210. 774 N.E.2d 330 (Ohio Ct. App. 2002).
211. Id. at 331-32.
212. Id. at 335.
213. Id. at 337.
214. Id.
215. Id.
216. No. 29300-5-II, 2003 Wash. App. LEXIS 1711 (Wash. Ct. App. July 29, 2003).
217. Id. at *22. Additionally, the Washington court cites Peggie R. Smith in footnote 12, quoting her proposition that, "'the evidence does not exist to indicate that employment discrimination against parents based on erroneous assumptions is a serious problem.'" Id. at "22 n.12 (citing Smith, Parental-Status, supra note 8, at 573).
218. Id. at *23.
219. N.H. REV. STAT. ANN. § 354-A:1 (1995 & Supp. 2007).