Are gender stereotypes bad for women? rethinking antidiscrimination law and work-family conflict

Columbia Law Review

Volumn 110, Issue 1, 2010, Pages 1-69

  Suk, Julie C ^a,b  

^a YESHIVA UNIVERSITY   (United States)

^b UNIVERSITY OF CHICAGO   (United States)

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EID: 77950487896     PISSN: 00101958     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (468)

1. See Tracy Clark-Flory, Bullying Women into Maternity Leave, Salon.com, Jan. 14, 2009, at http://www.salon.com/mwt/broadsheet/feature/2009/01/14/ preggers-leave/(on file with the Columbia Law Review).
2. See Eleanor Beardsley, Minister Sparks Maternity Leave Debate in France, NPR, Jan. 19, 2009, at http://www.npr.org/templates/story/story.php?storyId= 99456513 (on file with the Columbia Law Review). Fifty-six percent of the French people disapproved of the Justice Minister's decision. Une majorité de français désapprouvent le retour au travail très rapide de Rachida Dati, Le Monde (Paris), Jan. 11, 2009.
3. Feminists Shocked by Dati's Lightning Maternity Leave, Radio Fr. Internationale, Jan. 9, 2009, at www.rfi.fr/actuen/articles/109/article-2610.asp (on file with the Columbia Law Review). Meanwhile Ségolène Royal, the former Socialist candidate for the French presidency, defended a woman's right to choose to resume work.
4. See Segolene Royal Defends Rachida Dati Over Lack of Maternity Leave, Telegraph (London), Jan. 11, 2009, available at http://www.telegraph.co.uk/news/ worldnews/europe/france/4219496/Segolene-Royal-defends-Rachida-Dati-over-lack- of-maternity-leave.html (on file with the Columbia Law Review).
5. Code du travail [C. trav.] art. L1225-17, L1225-29. These Labor Code provisions apply to private sector employees, and not to the Justice Minister.
6. See Clark-Flory, supra note 1.
7. Rachel Emma Silverman, Can a Maternity Leave Be Too Short?, Wall St. J. The Juggle Blog, Jan. 22, 2009, at http://blogs.wsj.com/juggle/2009/01/22/can-a- maternity-leave-be-too-short/(on file with the Columbia Law Review).
8. See generally Jody Heymann, Allison Earle &: Jeffrey Hayes, The Work, Family, and Equity Index: How Does the United States Measure Up? 1-2 (2007);
9. OECD, Babies and Bosses: Reconciling Work and Family Life 104 (2007). Although California and New Jersey provide partial wage replacement for family leave, most states and the federal government lack such programs.
10. See, e.g., Saul Levmore, Parental Leave and American Exceptionalism, 58 Case W. Res. L. Rev. 203, 203 (2007) ("In the case of parental leave, cross-country comparisons are certainly startling.").
11. On June 9, 2009, a bill to provide four weeks of paid parental leave to federal employees, in addition to any accrued paid sick leave, passed in the House of Representatives. Although there were 258 votes in support of the bill, 154 members of Congress opposed it.
12. See Federal Employees Paid Parental Leave Act of 2009, H.R. 626, 111th Cong. (2009);
13. H.R. 626: Federal Employees Paid Parental Leave Act of 2009, GovTrack.us, at http://www.govtrack.us/congress/bill.xpd?bill=h111-626%20 (last updated Oct. 20, 2009) (on file with the Columbia Law Review).
14. See Commission of the European Communities, A Better Work-Life Balance: Stronger Support for Reconciling Professional, Private, and Family Life, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee, and the Committee of Regions, at 6, COM (2008) 635 final (Oct. 3, 2008);
15. see also Lucia Kubosova, Brussels Maternity Leave Plan Sparks Controversy, EU Observer, Oct. 3, 2008, available at http://euobserver.eom/9/ 26859 (on file with the Columbia Law Review).
16. Major newspapers, such as the New York Times and the Wall Street Journal, devote regular columns and blogs examining all the dimensions of the work-family conflict.
17. See, e.g., Lisa Belkin, Looking Back, Moving On, N.Y. Times, Oct. 16, 2008, at E2;
18. Sue Shellenbarger, It's Not That Kids Need Preschool-But It Can Help, Wall St. J., Jan. 21, 2009, at B7;
19. Lisa Belkin, Do Children Need a Sleep Schedule?, N.Y. Times Motherlode Blog, Jan. 21, 2009, at http://parenting.blogs.nytimes.com/2009/01/21/do- children-need-a-sleep-schedule/ (on file with the Columbia Law Review). The Wall Street Journal also maintains a daily blog, called The Juggle, on choices and tradeoffs people make as they juggle work and family.
20. See Wall St. J. The Juggle Blog, at http://blogs.wsj.com/juggle (last visited Oct. 28, 2009).
21. As the New York Times reported, "American women sometimes joke that they plan to move to Sweden or France before they become pregnant, to take advantage of the generous paid maternity leave those countries provide." Paid Leave for Maternity Is the Norm, Except In ... , N.Y. Times, Oct. 6, 2007, at C6;
22. see also Ann Crittenden, The Price of Motherhood: Why the Most Important Job in the World Is Still the Least Valued 256-58 (2001) (discussing European "policies that have kept poverty among children and their mothers substantially lower than in the United States");
23. Judith Warner, Perfect Madness: Motherhood in the Age of Anxiety 15 (2005) (discussing nearly unquestioned acceptance of American cultural norm that "motherhood should be fraught with anxiety and guilt and exhaustion").
24. See, e.g., Barbara R. Bergmann, Saving Our Children From Poverty: What the United States Can Learn from France 6 (1996);
25. Janet C. Gornick &: Marcia K. Meyers, Families That Work: Policies for Reconciling Parenthood and Employment 15 (2003) ("Family policies in several European countries . . . provide models of what government can do to help families resolve the tensions between workplace and caring responsibilities while promoting greater gender equality.");
26. Mary Becker, Caring for Children and Caretakers, 76 Chi.-Kent L. Rev. 1495, 1500 (2001) (advocating "push for a system of supports similar to those in France");
27. Arielle Horman Grill, The Myth of Unpaid Family Leave: Can the United States Implement a Paid Leave Policy Based on the Swedish Model?, 17 Comp. Lab. L.J. 373, 383-90 (1996) (discussing barriers to paid leave in United States);
28. Samuel Issacharoff &: Elyse Rosenblum, Women and the Workplace: Accommodating the Demands of Pregnancy, 94 Colum. L. Rev. 2154, 2214-21 (1994) (drawing on lessons from Canada and Europe in proposing insurance-based system for pregnancy leave);
29. Gillian Lester, A Defense of Paid Family Leave, 28 Harv. J.L. & Gender 1 (2005) (discussing effects of "paid maternity leave policies in Europe" upon women's workforce participation);
30. Michael Selmi, Family Leave and the Gender Wage Gap, 78 N.C. L. Rev. 707, 770-73 (2000) (using Sweden's success in incorporating "family leave and child care into the typical employment package" as case study);
31. Angie K. Young, Assessing the Family and Medical Leave Act in Terms of Gender Equality, Work/Family Balance, and the Needs of Children, 5 Mich. J. Gender & L. 113, 154-57 (1998) (relying on Swedish model to make recommendations for parental-leave programs in United States);
32. Emily A. Hayes, Note, Bridging the Gap Between Work and Family: Accomplishing the Goals of the Family and Medical Leave Act of 1993, 42 Wm. & Mary L. Rev. 1507, 1536-37 (2001) (pointing to European systems as potential models for paid leave).
33. I elaborate this theory of comparative legal method in more detail in Julie Chi-hye Suk, Equal by Comparison: Unsettling Assumptions of Antidiscrimination Law, 55 Am. J. Comp. L. 295, 297-98 (2007). The approach attempts to broaden the scope of comparative legal scholarship to include an "audience of readers concerned about contemporary differences in social and economic orientation."
34. James Q. Whitman, Consumerism Versus Producerism: A Study in Comparative Law, 117 Yale L.J. 340, 345 (2007).
35. -29 U.S.C. §2601(b) (5) (2006).
36. Id. §2601(a) (5).
37. Id. §2612(a) (1).
38. Id. §2614(a) (1).
39. See, e.g., Joan Williams, Unbending Gender: Why Family and Work Conflict and What to Do About It 237 (2000) [hereinafter Williams, Unbending Gender] ("While the FMLA is a significant and important accomplishment, it is also a drop in the bucket: It covers only a small percentage of those employed in the United States, and offers only an unpaid leave that many women cannot afford to take.");
40. Ruth Colker, Hypercapitalism: Affirmative Protections for People with Disabilities, Illness, and Parenting Responsibilities Under United States Law, 9 Yale J.L. & Feminism 213, 239-40 (1997) (detailing "limited coverage" provided by FMLA);
41. see also Maxine Eichner, Square Peg in a Round Hole: Parenting Policies and Liberal Theory, 59 Ohio St. L.J. 133, 149 (1998) ("Ironically, the protections accorded under the FMLA largely ignore the broad interests discussed in the Act's preamble.");
42. Joanna L. Grossman, Job Security Without Equality: The Family and Medical Leave Act of 1993,15 Wash. U. J.L. & Pol'y 17, 18 (2004) (arguing FMLA has done little for gender equality due to its failure to account for men's tendency not to do much caregiving);
43. Michael Selmi, Is Something Better than Nothing? Critical Reflections on Ten Years of the FMLA, 15 Wash. U. J.L. & Pol'y 65, 67 (2004) [hereinafter Selmi, Reflections on the FMLA] (arguing FMLA has not succeeded in combating stereotypes against women in workplace).
44. -29 U.S.C. §2611 (2) (B) (ii).
45. Id. §2611(2) (A) (ii). Assuming a forty hour work week, an employee would need to work thirty-two weeks for the same employer to be eligible for FMLA leave.
46. A part-time employee would need to work fifty, twenty-five hour weeks in order to meet the 1,250 hour threshold.
47. David Cantor et al., Balancing the Needs of Families and Employers: Family and Medical Leave Surveys, at 3-12 (2001), available at http://www.dol.gov/esa/whd/fmla/chapter3.pdf (on file with the Columbia Law Review).
48. Ellen Galinsky et al., 2008 National Study of Employers 19 (2008). The study included a sample of 1,100 nationally representative employers with fifty or more employees, most of which were covered by the FMLA. The employers studied included forprofit enterprises (77%) as well as nonprofit organizations (23%).
49. Id. at 3.
50. According to the Labor Department's 2000 Surveys, 3,500,000 employees reported that they needed leave in the prior eighteen months but could not take it.
51. Cantor et al., supra note 23, at 2.2, available at http://www.dol.gov/ esa/whd/fmla/chapter2.pdf (on file with the Columbia Law Review).
52. See id. at 2-15 tbl.2.16 (identifying 9.3% of those needing, but not taking, leave as new parents).
53. See Geduldig v. Aiello, 417 U.S. 484, 486 (1974) (discussing California's disability insurance system), superseded by statute, 42 U.S.C. §2000e (2006).
54. Id. at 492.
55. Id. at 501 (Brennan, J., dissenting). These similarities are highlighted in the dissenting opinion's quotation of the Appellee's brief, which cited the American College of Obstetricians and Gynecologists' Policy Statement on Pregnancy-Related Disabilities.
56. See id. at 500 n.4.
57. Id. at 494 (majority opinion) (holding program did not discriminate with respect to persons or groups which are eligible).
58. See Gen. Elec. Co. v. Gilbert, 429 U.S. 125, 138-40 (1976) ("[I]t is impossible to find any gender-based discriminatory effect in this scheme simply because women disabled as a result of pregnancy do not receive benefits . . . ."), superseded by statute, 42 U.S.C. § 2000e.
59. See Geduldig, 417 U.S. at 495-96 (acknowledging a "totally comprehensive program would be substantially more costly" and nothing in Constitution "requires the State" to make this choice);
60. see also Gilbert, 429 U.S. at 138-139 ("[G]ender-based discrimination does not result simply because an employer's disability-benefits plan is less than all-inclusive.").
61. See Pregnancy Discrimination Act, Pub. L. No.95-555, 92 Stat. 2076 (1978) (codified at 42 U.S.C. §2000e);
62. see also H.R. Rep. No. 95-948, at 2-3 (1978), reprinted in 1978 U.S.C.CA.N. 4749, 4750-51 (discussing Gilbert and Congress's intent "to change the definition of sex discrimination in Title VII").
63. -42 U.S.C. §2000e (k).
64. See H.R. Rep. No.95-948, at 6-7.
65. -42 U.S.C. §2000e(k).
66. Galinsky et al., supra note 24, at 19 tbl.7.
67. Gen. Elec. Co. v. Gilbert, 429 U.S. 125, 129-30 (1976), superseded by statute, 42 U.S.C. §2000e;
68. Geduldig v. Aiello, 417 U.S. 484, 501 n.4 (1974) (Brennan, J., dissenting) (citing appellees' brief), superseded by statute, 42 U.S.C. §2000e.
69. Nat'l P'ship for Women &: Families, The Pregnancy Discrimination Act: Where We Stand 30 Years Later 2 (2008), available at http://www. nationalpartnership.org/site/DocServer/Pregnancy-Discrimination-Act-Where-We- Stand-30-Years-L.pdf (on file with the Columbia Law Review).
70. Id. at 3.
71. Id. at 5.
72. Family and Medical Leave Act of 1993, Pub L. No. 103-3, 107 Stat. 6 (codified as amended at 29 U.S.C. §§2601-2654).
73. See Amy Joyce, Verizon Bias Suit Deal Sets Record, Wash. Post, June 6, 2006, at Dl.
74. The Court noted: Particularly with respect to social welfare programs, so long as the line drawn by the State is rationally supportable, the courts will not interpose their judgment as to the appropriate stopping point. "[T]he Equal Protection Clause does not require that a State must choose between attacking every aspect of a problem or not attacking the problem at all." Geduldig v. Aiello, 417 U.S. 484, 495 (1974) (citing Dandridge v. Williams, 397 U.S. 471, 486-87 (1970)), superseded by statute, 42 U.S.C. §2000e (2006).
75. In 2009, the Supreme Court held that companies were free to deny service credits for pregnancy and maternity leave taken prior to the PDA for the purposes of calculating pension payments that are being paid today.
76. See AT&T Corp. v. Hulteen, 129 S. Ct. 1962, 1966 (2009).
77. See Mary C. Still, Litigating the Maternal Wall: U.S. Lawsuits Charging Discrimination Against Workers with Family Responsibilities 2 (2006), available at http://www.uchastings.edu/site-files/WLL/FRDreport.pdf (on file with the Columbia Law Review) (describing rising number of FRD lawsuits).
78. See, e.g., Lettieri v. Equant, 478 F.3d 640, 649 (4th Cir. 2007) (denying motion to dismiss due to "powerful evidence showing a discriminatory attitude . . . toward female managers . . . who have children at home and commute long distances");
79. Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 113 (2d Cir. 2004) (holding "stereotyping about the qualities of mothers" to be "a form of gender discrimination");
80. Knussman v. Maryland, 272 F.3d 625, 635 (4th Cir. 2001) (finding Equal Protection Clause violation when defendant presumed "the mother [was] the primary care giver, and therefore entitled to greater employment benefits");
81. Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 57 (1st Cir. 2000) (finding evidence of discrimination where employee was terminated after informing employer of her plans to have second child);
82. Trezza v. Hartford, Inc., No. 98 Civ. 2205, 1998 WL 912101, at *6-*7 (S.D.N.Y. Dec. 30, 1998) (holding refusal to promote woman with children, while promoting women without children, constitutes sex discrimination).
83. See EEOC, Enforcement Guidance: Unlawful Disparate Treatment of Workers with Caregiving Responsibilities 1 (2007), available at http://www.eeoc.gov/ policy/docs/caregiving.pdf (on file with the Columbia Law Review) [hereinafter EEOC, Caregiving Responsibilities].
84. See EEOC, Employer Best Practices for Workers with Caregiving Responsibilities (2009), at http://www.eeoc.gov/policy/docs/caregiver-best- practices.html (on file with the Columbia Law Review) [hereinafter EEOC, Best Practices].
85. See Phillips v. Martin Marietta Corp., 400 U.S. 542, 544 (1971) (holding Title VII does not permit employers, in absence of business necessity, to have "one hiring policy for women and another for men-each having pre-school-age children").
86. Still, supra note 46, at 7.
87. Id.
88. Id. at 13.
89. Over the last fifteen years some scholars have expressed skepticism of antidiscrimination law's potential to address work-family conflict. Mary Becker argued that Title VII was an "empty remedy," largely based on empirical data showing the low success rate of Title VII cases in general, and pregnancy discrimination cases in particular.
90. Becker, supra note 13, at 1517. Maxine Eichner and Peggie Smith articulated the difficulties of expanding Title VIPs prohibition of sex discrimination to require employers to accommodate the caregiving activities of working mothers.
91. See Eichner, supra note 19, at 146-48 (arguing courts' construction of parenting activity as "choice" leads to insufficient legal protection);
92. Peggie R. Smith, Accommodating Routine Parental Obligations in an Era of Work-Family Conflict: Lessons from Religious Accommodations, 2001 Wis. L. Rev. 1443, 1456-59 (describing shortcomings of disparate treatment and disparate impact antidiscrimination analyses in FRD context);
93. Peggie R. Smith, Parental-Status Employment Discrimination: A Wrong in Need of a Right?, 35 U. Mich. J.L. Reform 569, 580 (2002) (citing cases indicating that "treating employment inequities caused by work-parenting conflicts as a problem of formal inequality between men and women is a limited strategy to assist working parents"). Martha Chamallas argued that Title VII disparate treatment theory is of little use to women whose domestic responsibilities make it impossible to meet the requirements of a given position.
94. Martha Chamallas, Mothers and Disparate Treatment: The Ghost of Martin Marietta, 44 Vill. L. Rev. 337, 338-39 (1999). Laura Kessler argued that Title VII has been unable to account for cultural experiences, such as caregiving, which are not shared by all women.
95. 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, 375 (2001).
96. See Williams, Unbending Gender, supra note 19, at 271 (stating work ideal "is framed around the traditional life patterns of men and so discriminates against women").
97. See id. at 5 ("'Success' requires ideal-worker status. Few women have it.").
98. See id. at 65 (providing examples of how jobs designed for masculine worker "exclude[ ] the large majority of women").
99. Id. at 104-05;
100. see also Erin L. Kelly, Discrimination Against Caregivers?; Gendered Family Responsibilities, Employer Practices, and Work Rewards, in Handbook of Employment Discrimination Rights and Realities: Legal and Social Scientific Approaches to Employment Discrimination 353, 368 (Laura Beth Nielsen &: Robert L. Nelson eds., 2005) ("Title VIIs disparate impact theory, which holds employers accountable for facially neutral practices that disproportionately disadvantage workers in protected categories, may be useful for (female) caregivers making discrimination claims.");
101. Michelle Travis, Equality in the Virtual Workplace, 24 Berkeley J. Emp. & Lab. L. 283, 341 (2003) (advocating disparate impact challenges to employer policies limiting or banning telecommuting based on their likely adverse impacts on women).
102. Williams, Unbending Gender, supra note 19, at 69-72.
103. Id.
104. See id. at 69-70 (quoting prominent attorney who remarked "[e]ven if [women] only take just six weeks of maternity leave, they come back and find out they've been passed over for a promotion or that their job was eliminated. I've seen it in every kind of workplace").
105. Moore v. Ala. State Univ., 980 F. Supp. 426 (M.D. Ala. 1997).
106. Id. at 431.
107. Id. at 434.
108. See Lust v. Sealy, 383 F.3d 580, 583 (7th Cir. 2004) (holding jury was not unreasonable in finding female plaintiff suffered discrimination when employer gave promotion to male employee instead of to her);
109. Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 122 (2d Cir. 2004) (finding gender-based stereotyping about "incompatibility of motherhood and employment" to be sufficient "evidence of an impermissible, sex-based motive");
110. Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 55 (1st Cir. 2000) (finding employer comments about plaintiffs decision to have second child "could lead a jury to conclude that [the employer's] proffered reasons for firing [plaintiff] were actually a pretext for discrimination") ;
111. Sheehan v. Donlen Corp., 173 F.3d 1039, 1044-45 (7th Cir. 1999) (finding it reasonable for jury to conclude that plaintiff, who was pregnant at time, was fired due to employer's beliefs about mother's role in family).
112. For a recent example, see Chadwick v. Wellpoint, 561 F.3d 38, 46-47 (1st Cir. 2009) (holding reasonable jury could find discrimination if failure to promote was based on sex stereotype that mother of young triplets would be too overwhelmed to perform well).
113. Still, supra note 46, at 8.
114. -272 F.3d 625 (4th Cir. 2001).
115. Id. at 642.
116. Id. at 628.
117. Id.
118. Id. at 629.
119. Id. at 629-630 Plaintiffs wife was recovering from medical complications during childbirth at the time the leave was requested.
120. Id. at 629.
121. EEOC, Caregiving Responsibilities, supra note 48, at 6.
122. Id.
123. Id. at 11-21.
124. Id. at 11-15.
125. Id. at 12-13.
126. For example, the NPWF strongly advocates paid leave for all the reasons covered by the FMLA. See, e.g., Writing the Next Chapter of the Family and Medical Leave ActBuilding a Fifteen Year History of Support for Workers: Hearing Before the Subcomm. on Children &: Families of the S. Comm. on Health, Educ, Labor &: Pensions, 110th Cong. 4 (2008) (written testimony of Debra Ness, National Partnership for Women and Families), available at http://www.nationalpartnership.org/site/DocServer/DebraNess-Written Testimony-2-13-08.pdf (on file with the Columbia Law Review);
127. see also Letter from Marcia D. Greenberger, Co-President, Nat'l Women's Law Ctr., to Richard M. Brennan, Senior Regulatory Officer, Wage & Hour Div., U.S. Dep't of Labor (Feb. 15, 2007), available at http://www.nwlc.org/pdf/ FMLAComments021507.pdf (on file with the Columbia Law Review).
128. See Family Leave Insurance Act of 2008, H.R. 5873, 110th Cong. (2008);
129. Family Leave Insurance Act of 2007, S. 1681, 110th Cong. (2007);
130. Paid Family and Medical Leave Act of 2005, H.R. 3192, 109th Cong. (2005).
131. H.R. 5873 §103(a).
132. S. 1681 §103(a) (entitling employee to eight weeks of paid leave).
133. H.R. 3192 §102(a) (entitling employee to twelve weeks of paid leave).
134. Family Income to Respond to Significant Transitions Act of 2009, H.R. 2339, 111th Cong. §3(a)(1)(B) (2009).
135. See Nat'l Coal, to Protect Family Leave, Members of the National Coalition to Protect Family Leave, at http://www.protectfamilyleave.org/about/ memroster.cfm (last visited Oct. 28, 2009) (on file with the Columbia Law Review) (providing full list of Coalition's members).
136. The 15th Anniversary of the Family and Medical Leave Act: Achievements and Next Steps: Hearing Before the H. Workforce Protections Subcomm. and the H. Comm. on Educ. &: Labor, 110th Cong. 5 (2008) (statement of National Coalition to Protect Family Leave), available at http://www.protectfamilyleave. org/inCongress/041008-house-FMLA-hearing-NCPFL-statement.pdf (on file with the Columbia Law Review).
137. See Family and Medical Leave Act of 1993, 29 C.F.R. pt. 825 (2009).
138. See Roundtable Discussion: The Family and Medical Leave Act-A Dozen Years of Experience: Hearing on Extending the Family Medical Leave Act Before the S. Comm. on Health, Educ, Labor &: Pensions, 109th Cong. 22 (2005) [hereinafter Roundtable Discussion] (statement of Sue K. Willman, attorney, Spencer Fane), available at http://www.access.gpo.gov/congress/senate/senatel5shl09.html (on file with the Columbia Law Review) (relaying employers' acceptance of family leave portions of regulations, but expressing their concern with definition of "serious health condition" and implementation of intermittent medical leave provisions).
139. Family and Medical Leave Act of 1993, 73 Fed. Reg. 7876 (proposed Feb. 11, 2008) (to be codified at 29 C.F.R. pt. 825).
140. Request for Information, 71 Fed. Reg. 69,504 (Dec. 1, 2006).
141. See Steven Greenhouse, Workers Split with Bosses on Leave Act, Survey Finds, N.Y. Times, June 27, 2007, at A17 (describing friction between employees and employers around use of intermittent leave).
142. U.S. Dep't of Labor, Balancing the Needs of Families and Employers (2000), available at http://www.dol.gov/esa/whd/fmla/cover-statement.pdf (on file with the Columbia Law Review).
143. Id. at 5.
144. See Selmi, Reflections on the FMLA, supra note 19, at 68-73 (describing legislative purpose as balancing work and family issues and breaking down gender stereotypes).
145. See Larry F. Darby &: Joseph Fuhr, Benefits and Costs of the Family and Medical Leave Act of 1993: A Consumer Welfare Perspective 16 (2007), available at http://www. protectfamilyleave.org/research/darby-fmla.pdf (on file with the Columbia Law Review) ("The biggest problem with the FMLA by far is employee (ab)use of intermittent leave.");
146. Soc'y for Human Res. Mgmt., FMLA: An Overview of the 2007 FMLA Survey 1 (2007), available at http://www.protectfamilyleave.org/research/survey-2007- fmla.pdf (on file with the Columbia Law Review) ("Tracking/administering intermittent FMLA leave was identified as the most difficult activity by eight out of [ten] organizations.").
147. FMLA regulations require employees to give employers thirty days' notice if the leave is foreseeable, such as in the case of childbirth, newborn care, or adoption. 29 C.F.R. §825,302 (2009).
148. Employees certify their own need for medical leave, and employers experience this as a system of employee absence at will. Nat'l Coal. to Protect Family Leave, Unintended Consequences of the FMLA and Its Regulations §3 (2008), available at http:/ /www.protectfamilyleave.org/pdf/030408-revised- unintended-consequences.pdf (on file with the Columbia Law Review).
149. Victoria A. Lipnic &: Paul DeCamp, Family and Medical Leave Act Regulations: A Report on the Department of Labor's Request for Information 129 (2007).
150. Id.
151. Id.
152. Id.
153. Employer verification of medical certification can be costly due to various rules respecting the employee's privacy. See Request for Information, 71 Fed. Reg. 69,504, 69,510 §II(K) (Dec. 1, 2006) (discussing medical certification procedures).
154. Roundtable Discussion, supra note 87, at 27 (statement of Sue K. Willman, attorney, Spencer Fane) (noting "intermittent leaves have so many loopholes that abuse can easily occur").
155. See The Family and Medical Leave Act of 1993, 73 Fed. Reg. 67,934, 68,101 (Nov. 17, 2008) (to be codified at 29 C.F.R. §825.306(a)(7)) (stating medical certification of intermittent incapacity from serious health condition must only contain "information sufficient to establish the medical necessity for such intermittent" absences and estimate their frequency and duration).
156. Id.
157. Id. at 68,079 (to be codified at 29 C.F.R. §825.115(c)(1)).
158. Id. at 68,080 (to be codified at 29 C.F.R. §825.115(c)(1)).
159. The Family and Medical Leave Act of 1993, 29 C.F.R. §825.307(a) (2008).
160. See The Family and Medical Leave Act of 1993, 73 Fed. Reg. at 68,017 (describing old rule).
161. Id. at 67,947.
162. Id. at 67,949.
163. Nat'l P'ship for Women &: Families, Taking Action Since 1971, at http://www. nationalpartnership.org/site/PageServer?pagename=aboutus- historyTimeline (last visited Oct. 28, 2009) (on file with the Columbia Law Review).
164. Id.
165. Id.
166. For instance, the NPWF opposed the requirement of twice-annual medical certifications for intermittent conditions. See The Family and Medical Leave Act of 1993, 73 Fed. Reg. at 67,949.
167. The NPWF also opposed the change in definition of "serious health condition." Family and Medical Leave Act Regulations: A Report on the Department of Labor's Request for Information, 72 Fed. Reg. 35,550, 35,568 (June 28, 2007).
168. See The 15th Anniversary of the Family Medical Leave Act: Achievements and Next Steps: Hearing Before the H. Workforce Protections and H. Comm. on Educ. &: Labor, 110th Cong. 49, 52 (2008) (prepared statement of Debra Ness, President, Nat'l P'ship for Women &: Families), available at http://edlabor.house.gov/testimony/2008-04-10-DebraNess.pdf (on file with the Columbia Law Review) (arguing against new burdens on workers imposed by proposed regulations).
169. Letter from Marcia D. Greenberger to Richard M. Brennan, supra note 78.
170. Family and Medical Leave Act Regulations: A Report on the Department of Labor's Request for Information, 72 Fed. Reg. at 35,568-569
171. Council Directive 92/85, art. 1, 1992 OJ. (L 348) 1, 2 (EC) (discussing introduction of measures to encourage improvements in safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding).
172. Id. art. 8. The Directive leaves it to national legislation and practice to determine the policies for paying women (e.g., social security, employer-financed benefits) during maternity leave.
173. Id.
174. Id. art. 9.
175. Id. art. 10.
176. Margaret Fine-Davis, Jeanne Fagnani, Dino Giovannini, Lis Høgaard &: Hilary Clarke, Fathers and Mothers: Dilemmas of the Work-Life Balance-A Comparative Study in Four European Countries 9 (2004).
177. See Anne Cova, French Feminism and Maternity: Theories and Policies 1890-1918, in Maternity and Gender Policies 119, 129-30 (Gisela Bock &: Pat Thune eds., 1991) (noting prominent organization for political enfranchisement of women "unceasingly affirmed that it was women's responsibility to bring children into the world to struggle against depopulation");
178. Karen Offen, Body Politics: Women, Work, and the Politics of Motherhood in France, 1920-1950, in Maternity and Gender Policies, supra, at 138, 141-145 (discussing how concern with falling birth rate after World War I shaped reforms in France).
179. See Jane Jenson &: Mariette Sineau, France: Reconciling Republican Equality with "Freedom of Choice," in Who Cares?; Women's Work, Childcare, and Welfare State Redesign 88, 91 (2001) (articulating skepticism about France's "commitment to gender equality in citizenship," despite its commitments to "a modernist paradigm" in the 1970s and 1980s).
180. See Proposition de loi relative à la modernisation du congé maternité en faveur de la protection de la santé des femmes et de l'égalité salariale et sur les conditions d'exercice de la parentalité [Proposed law on the modernization of maternity leave], Assemblée nationale, 13ème législature, no.1468, at 5 (2009), available at http://www. assemblee-nationale.fr/13/pdf/propositions/ pionl468.pdf (on file with the Columbia Law Review) (noting purpose of elongating maternity leave would be to protect health of mothers and babies).
181. Note that the Labor Code only applies to "employees" in private enterprises, and not to government employees or those engaged in the "liberal" professions such as law, medicine, or architecture. Nonetheless, separate laws governing maternity leave for government employees are similar in their generosity to the Labor Code. Professionals are entitled to payments at fixed amounts from social security, if they take time off of work to give birth, for at least forty-four consecutive days. Code de la sécurité sociale [C. sée. soc.] art. D613-4-2; Decree No. 2008-1410 of Dec. 19, 2008, Journal Officiel de la République Française [J.O.] [Official Gazette of France], Dec. 26, 2008, p. 20,062.
182. C. trav. art. L1225-24.
183. Id. art. L1225-18.
184. Id. art. L1225-19.
185. Id. art. L1225-25.
186. Id. art. L1225-27.
187. Then-Representative Gillibrand (D-N.Y.) received a standing ovation from her colleagues in the House of Representatives for having worked right through the very day on which she gave birth. Michael Powell &: Raymond Hernandez, Senate Choice: Folksy Centrist Born to Politics, N.Y. Times, Jan. 24, 2009, at Al.
188. C. trav. art. L1225-17.
189. Id. art. L1225-29 ("It is prohibited to employ the employee during a
190. C. séc. soc. arts. L330-1 to L333-3.
191. Id. art. L331-2.
192. Id. art. L331-3.
193. Id.
194. C. trav. art. L1225-22; C. sec. soc. art. L331-5.
195. C. trav. art. L1225-23.
196. Id. art. L1225-21.
197. Code de la santé publique [C. san. pub.] art. L2122-1.
198. C. trav. art. L1225-16.
199. Id.
200. Id.
201. Id. art. L1132-1.
202. See Julie C. Suk, Procedural Path Dependence: Discrimination and the CivilCriminal Divide, 85 Wash. U. L. Rev. 1315, 1331-1350 (2008) (identifying institutional factors that make it difficult to litigate employment discrimination claims).
203. C. trav. art. L1225-1.
204. Id.
205. Id. art. L1225-2.
206. Id. art. L1225-3.
207. Id. art. L1225-4.
208. Id. art. L1225-5.
209. Id. art. L1225-7.
210. Id.
211. Id.
212. Id. art. L1225-12.
213. Id. art. L1225-34.
214. Id. art. L1225-35.
215. Id.
216. Id. art. L1225-36.
217. C. sec. soc. art. L331-8.
218. Id.
219. C. trav. art. L1225-26.
220. Id. art. L1225-8.
221. Id. arts. L1225-47 to L1225-48.
222. See C. sec. soc. art. L531-4 (stating "free choice of activity supplement" is paid at full rate to those choosing to cease professional activity to care for a child).
223. C. trav. art. L1225-48.
224. Id. art. L1225-53.
225. Id. art. L1225-56.
226. Id. art. L1225-54.
227. Id. art. L1225-55.
228. Id. art. L1225-57.
229. Id. art. L1225-59.
230. Id. art. L1225-61.
231. Id.
232. Id.
233. Id. art. L1225-62.
234. Id.
235. See C. séc. soc. arts. L544-1 to L544-2 (describing daily benefit paid during parental presence leave).
236. C. trav. art. L1225-64.
237. C. sec. soc. art. L531-4.
238. See id. (requiring employees to complete sufficient period of work prior to receiving payment and allowing for augmentation of that payment in instances of multiple births).
239. Id. art. L531-5; see also Caisses d'allocations familiales, Prestation d'accueil du jeune enfant, complément de libre choix du mode de garde, at http://www.caf.fr/cataloguepaje/GardPajeEmploi.htm (last visited Oct. 28, 2009) (on file with the Columbia Law Review) (describing eligibility criteria and payment levels).
240. C. séc. soc. art. L531-5.
241. Code de l'Education [C. éd.] art. L212-1.
242. According to the Ministry of Education, the program of the école maternelle is "to grasp language and to discover writing, to become a pupil, to express oneself with one's body, to discover the world, to perceive, feel, imagine, and create." Ministère de l'éducation nationale, L'école maternelle, at http://www.education.gouv.fr/cidl66/l- ecole-maternelle.html (last updated July 2009) (on file with the Columbia Law Review).
243. Id.
244. See C. éd. art. L212-4 (stating municipal governments are responsible for "construction, reconstruction, expansion, large repairs, equipment and operation" of public schools).
245. For an overview of these options, ranging from group daycare to licensed and subsidized nannies, see Jeanne Fagnani, Un travail et des enfants 48-56 (2000).
246. Alain Contrepois, Les jeunes enfants et la crèche: Une histoire 114 (2006).
247. The French government provides a website with information regarding childcare options, including the formulas used to determine fees. See Calcul du prix d'accueil, at http://www.mon-enfant.fr/web/guest/tarification-garde-enfant (last visited Sept. 24, 2009) (on file with the Columbia Law Review).
248. The sickness insurance scheme, which includes maternity insurance, is funded by employer and employee contributions. See Textes relatives aux cotisations et au financement de la sécurité sociale, C. séc. soc. 2043, Annexe 1 (Lexis Nexis Litec ed. 2009); C. éd. art. L212-4.
249. See C. trav. arts. L1226-1 to L1226-24 (regulating employment contract with regard to illness, accidents, and medical disability).
250. Compare id., with id. arts. L1225-1 to L1225-72.
251. Jean-Jacques Dupeyroux, Droit de la sécurité sociale §752, at 554 &: n.4 (Michel Borgetto &: Robert Lafore eds., 16th ed. 2008) (emphasis omitted).
252. C. trav. art. L1232-1.
253. Id. art. L1132-1.
254. Id. art. L1226-1; Cour de cassation, chambre sociale [Cass, soc.] [highest court of ordinary jurisdiction], Jan. 10, 1980, Bull. civ. 5, No.31.
255. C. trav. art. L1226-1; Cass, soc., Mar. 25, 1963, Bull civ. 4, No.287.
256. C. trav. art. L1226-1; see Cass, soc., Mar. 25, 1963, Bull civ. 4, No.287 (holding lower court erred in supporting claim of terminated employee against employer because employee failed to observe requirement of providing medical certificate).
257. Cass, soc., Dec. 8, 1988, Bull. civ. 5, No.648 (holding employee did not breach employment by taking prolonged sick leave because employment contract was suspended during leave).
258. C. séc soc. art. L321-1.
259. C. trav. art. L3141-3.
260. See id. art. L3141-5.
261. Cass, soc., June 2, 2004, Bull. civ. 5, No.161.
262. The daily stipends for sick leave are not unlimited, however. The amounts available are determined based on factors such as the nature of the medical condition. See C. séc soc. art. L323-1.
263. C. trav. art. L1226-1.
264. Id. art. L1132-1.
265. Cass. soc., July 16, 1998, Bull. civ. 5, No.394. Note, however, that the employer must first attempt to reclassify the employee whose illness makes it impossible for him to perform his current job. The employer can fire the employee for cause (which is accompanied by severance payments) only if reclassification is not possible. C. trav. arts. L1226-10 to L1226-12.
266. See supra Part II.A.2.
267. See supra note 211 and accompanying text.
268. sa Lundqvist &: Christine Roman, Construction(s) of Swedish Family Policy, 1930-2000, 33 J. Fam. Hist. 216, 220 (2008).
269. Id. at 225.
270. See Gornick &: Meyers, supra note 13, at 121-46 (praising parental leave systems in Sweden and other Nordic countries); Kimberly Morgan, Working Mothers and the Welfare State 112-122 (2006) (detailing and generally praising Sweden's various family policies).
271. -4-5 §§Parental Leave Act (SFS 1995:584) (Swed.), translated at http://www. sweden.gov.se/content/l/c6/10/49/85/f16b785a.pdf (on file with the Columbia Law Review).
272. Id. §4.
273. Id. §5.
274. See Försäkringskassan, Parental Benefit (Aug. 13, 2009), translated at http:// www.fk.se/irj/go/km/docs/fk-publishing/Dokument/ Publikationer/Faktablad/Andra% http://www.fk.se/irj/go/km/docs/fk-publishing/ Dokument/Publikationer/Faktablad/Andra%20sprak/Engelska/foraldrapenning-eng.pdf (on file with the Columbia Law Review) ("Parental benefit is the benefit parents receive to be able to be at home with their children instead of working.").
275. See id. (discussing how 480 days can be split between parents in different custody situations).
276. See Gov't Offices of Swed., The Swedish Family Policy (July 20, 2009), translated at http://www.regeringen.Se/sb/d/12092 (on file with the Columbia Law Review) (Parents who share parental leave equally by each taking an equal number of days of parental leave will receive the maximum bonus on condition that they work when the other parent takes parental leave.);
277. see also Press Release, Ministry of Fin. (Swed.), Budget Bill for 2008: Putting Sweden to Work-Increasing Opportunities (Sept. 20, 2007), translated at http://www.sweden.gov.se/sb/d/8186/a/88569 (on file with the Columbia Law Review) (arguing "gender equality bonus" will boost women's career opportunities).
278. -6 §Parental Leave Act (SFS 1995:584) (Swed.), translated at http://www.sweden. gov.se/content/1/c6/10/49/85/f16b785a.pdf (on file with the Columbia Law Review).
279. Id. §19.
280. Id.
281. Id. § 20 ("The right to transfer . . . applies only to the extent that the employer can be reasonably required to provide the woman with other work within the activity.").
282. Id.
283. See Försäkringskassan, About Social Insurance, translated at http://www.fk.se./irj/go/km/docs/fk-publishing/Dokument/Publikationer/Faktablad/ Andra%20sprak/ Engelska/socialforsakringen-eng.pdf (last visited Sept. 24, 2009) (on file with the Columbia Law Review) [hereinafter Försä kringskassan, Social Insurance].
284. Försäkringskassan, Child Allowance and Large Family Supplement (Oct. 19, 2008), translated at http://www.fk.se/irj/go/km/docs/fk-publishing/ Dokument/Publikationer/Faktablad/Andra%20spr%C3%A5k/Engelska/ barnbidrag-flerbarnstillaggeng.pdf (on file with the Columbia Law Review) [hereinafter, Försäkringskassan, Child Allowance].
285. Id.
286. See Försäkringskassan, Social Insurance, supra note 228.
287. See Försäkringskassan, Child Allowance, supra note 229.
288. Gov't Offices of Swed., More Time for Young Children, available at http://www. sweden.gov.se/download/d2968502.pdf (last visited Oct. 1, 2009) (on file with the Columbia Law Review).
289. Skolverket, Child Care in Sweden 8 (2000), available at www.skolverket.se/content/1/c4/09/44/00-531.pdf (on file with the Columbia Law Review).
290. OECD, Starting Strong II: Early Childhood Education and Care 410 (2006), available at http://www.oecd.org/dataoecd/16/16/37423778.pdf (on file with the Columbia Law Review).
291. Skolverket, supra note 234, at 4 ("Swedish child care is based on an overall view of the child's development and learning needs bringing together health care, social care, fostering and teaching.").
292. Id. at 10.
293. Id. at 11.
294. See Warren Hoge, Swedes Are Out Sick Longer, and Budget Is Ailing, N.Y. Times, Sept. 24, 2002, at A3 ("Swedes [exercise] the most generous absentee rights in the world in such growing numbers that the country's cradle-to-grave welfare budget faces a cash crisis.").
295. Försäkringskassan, Sickness Benefit, translated at http://www.forsakringskassan. se/irj/go/km/docs/fk-publishing/Dokument/ Publikationer/Faktablad/Andra%20 sprak/Engelska/sjukpenning-eng.pdf (last visited Oct. 1, 2009) (on file with the Columbia Law Review).
296. Id.
297. Id.
298. Id.
299. See, e.g., Daniela Andrén, Long-Term Absenteeism Due to Sickness in Sweden. How Long Does it Take and What Happens After?, 8 Eur. J. Health Econ. 41, 41 (2007) ("Long-term absenteeism due to sickness has been increasing in Sweden during the past two decades . . . .");
300. Magnus Henrekson &: Mats Persson, The Effects on Sick Leave of Changes in the Sickness Insurance System, 22 J. Lab. Econ. 87, 87 (2004) ("[A]bsenteeism due to sick leave can be considerable.");
301. Patrik Hesselius &: Malin Persson, Incentive and Spill-Over Effects of Supplementary Sickness Compensation 3 (Inst. for Labour Mkt. Policy Evaluation, Working Paper No. 16, 2007), available at http://www.ifau.se/upload/ pdf/se/2007/wp07-16.pdf (on file with the Columbia Law Review) (referring to "relatively high level of sickness absence and the economic crisis in Sweden").
302. Hoge, supra note 239.
303. Id.
304. Id.
305. See Paul Andersson, Controversy Over Proposed Reform of National Sickness Insurance System, Eur. Indus. Rel. Observatory Online, Apr. 22, 2008, at http://www. eurofound.europa.eu/eiro/2008/02/articles/se0802029i.htm (on file with the Columbia Law Review) (presenting government reforms encouraging people to return to work and the criticism they received);
306. Annika Berg, Sick Pay Reform Meets Opposition, Eur. Indus. Rel. Observatory Online, Nov. 11, 2004, at http://www.eurofound.europa.eu/eiro/2004/ 11/feature/se0411103f.htm (on file with the Columbia Law Review) (stating measures to decrease sickness absence rate that were opposed by employers' organizations and some trade unions).
307. See Sweden Aims to Halve Sick Leave, The Local, Aug. 7, 2005, available at http://www.thelocal.se/1851/20050807/ (on file with the Columbia Law Review) (explaining unified government effort to reduce sick-leave spending).
308. Karin Alfredsson, Swedish Inst., At Home with Dad, at http://www.sweden.se/eng/Home/Work-live/Equality/Equal-Opportunities/ At-home-with-dad/ (last visited Sept. 24, 2009) (on file with the Columbia Law Review).
309. Joyce P. Jacobsen, The Economics of Gender 330 tbl.10.8 (3d ed. 2007).
310. See Swedish Equal Opportunities Ombudsman, Parenthood & Parental Insurance: The Current Situation in Sweden 5 (2007) (discussing impetus for parental leave reforms).
311. See 16 §Parental Leave Act (SFS 1995:584) (Swed.), translated at http://www. sweden.gov.se/content/1/c6/10/49/85/f16b785a.pdf (on file with the Columbia Law Review) ("An employer may not disfavour a job applicant or an employee for reasons related to parental leave under this Act . . . ."). This Amendment entered into force on July 1, 2006.
312. Swedish Equal Opportunities Ombudsman, supra note 252, at 6.
313. -11 §Employment Protection Act (SFS 1982:80) (Swed.), translated at http://www.sweden.gov.se/content/1/c6/07/65/36/9b9ee182.pdf (on file with the Columbia Law Review).
314. -42 U.S.C. §2000e(k) (2006).
315. H.R. Rep. No.95-948, at 5 (1978), reprinted in 1978 U.S.C.CA.N. 4749, 4753.
316. Id.
317. Cal. Fed. Sav. & Loan Ass'n v. Guerra, 479 U.S. 272, 275 n.1 (1987).
318. Id. at 278.
319. Id. at 278-279
320. Id. at 279.
321. Id.
322. See Miller-Wohl Co. v. Comm'r of Labor & Indus., 692 P.2d 1243, 1244 (Mont. 1984).
323. See id. at 1246 (citing Montana law, which made it unlawful for employers to refuse reasonable leave of absence for pregnancy).
324. California Federal, 479 U.S. at 292. A week after California Federal was decided, the U.S. Supreme Court vacated and remanded the Miller-Wohl case for further consideration by the Montana Supreme Court in light of its decision in California Federal. On remand, the employer conceded that it had violated the Montana Maternity Leave Act and no longer challenged its consistency with Title VII, and the Montana Supreme Court awarded attorneys' fees to the plaintiff.
325. See Miller-Wohl Co. v. Comm'r of Labor & Indus., 744 P.2d 871, 874 (Mont. 1987) ("Miller-Wohl Co., Inc. has conceded that it violated the Montana Maternity Leave Act and has tendered to the attorney for Tamara Buley all of her damages, penalties and interest.").
326. Montana law still entitles women to take a "reasonable" maternity leave. Mont. Code Ann. §49-2-310(2) (2007). The statute essentially requires employers to treat pregnant women no differently from other temporarily disabled workers.
327. See, e.g., id. §49-2-310(3) (prohibiting employers from denying disability compensation accrued by pregnant workers).
328. Ronald D. Elving, Conflict and Compromise: How Congress Makes the Law 22-23 (1995).
329. See id. (discussing push for gender neutrality in statute).
330. -29 U.S.C. §2601(a) (2006).
331. Id. §2601(b).
332. -538 U.S. 721 (2003). Reva Siegel notes that Chief Justice Rehnquist's majority opinion in Hibbs is an important statement of the Court's sex discrimination cases. See Reva B. Siegel, You've Come a Long Way, Baby: Rehnquist's New Approach to Pregnancy Discrimination in Hibbs, 58 Stan. L. Rev. 1871, 1884 (2006) (discussing Chief Justice Rehnquist's interpretation of Equal Protection Clause in context of sex discrimination).
333. Hibbs, 538 U.S. at 728.
334. For a detailed account of leave policies and leave-taking patterns prior to the passage of the FMLA, see Grossman, supra note 19, at 29-36.
335. Hibbs, 538 U.S. at 730, 735 n.11.
336. Id. at 731.
337. Id. at 733.
338. Id. at 734.
339. Id.
340. See supra notes 55-58 and accompanying text (discussing concept of "masculine ideal worker").
341. The Hibbs decision never mentions California Federal, even in its discussion of state laws that discriminated by providing childcare leave only to women and not to men. See Hibbs, 538 U.S. 721.
342. Id. at 737.
343. Id. at 722-723
344. Id. at 731.
345. Id. at 722.
346. S. Rep. No. 103-3, at 16 (1993), reprinted in 1993 U.S.C.CA.N. 3, 18.
347. EEOC Compl. Man. (BNA) §626.6.
348. Id.
349. See, e.g., Family Leave Insurance Act of 2008, H.R. 5873, 110th Cong. §103 (2008);
350. Family Leave Insurance Act of 2007, S. 1681, 110th Cong. §103 (2007) (allowing for eight weeks of paid leave);
351. Paid Family and Medical Leave Act of 2005, H.R. 3192, 109th Cong. §102 (2005).
352. Hibbs, 538 U.S. at 737.
353. See Martha Albertson Fineman, The Neutered Mother, the Sexual Family, and Other Twentieth Century Tragedies 37 (1995) ("This brand of legal feminism, dominant until recently, was primarily an equality-based strategy that assumed no legally relevant differences between men and women.").
354. Bradwell v. Illinois, 83 U.S. (16Wall.) 130, 142 (1872) ("[I]n view of the peculiar characteristics, destiny, and mission of woman, it is within the province of the legislature to ordain what offices, positions, and callings shall be filled and discharged by men . . . .").
355. Muller v. Oregon, 208 U.S. 412, 422 (1908).
356. Frontiero v. Richardson, 411 U.S. 677, 684 (1973).
357. For instance, the Vice President of Human Resource Policy for the National Association of Manufacturers stated at a Senate Roundtable on FMLA reform in 2005, "[F]amily leave absences are almost never the problem. The main source of problems identified by employers is with an employee's own medical absences." Roundtable Discussion, supra note 87, at 54. Similarly, an employers' attorney also noted, "I do not believe there are problems with the family leave portion of the FMLA or the regulations." Id. at 22 (statement of Sue K. Willman, attorney, Spencer Fane).
358. C. trav. art. L1225-8; see also supra text accompanying notes 160-166 (discussing French paternity leave policies).
359. Knussman v. Maryland, 272 F.3d 625, 630 (4th Cir. 2001);
360. see also supra text accompanying notes 67-72.
361. EEOC, Caregiving Responsibilities, supra note 48, at 6.
362. See Nev. Dep't of Human Res. v. Hibbs, 538 U.S. 721, 736-37 (2003) (discussing Congress's showing of "pattern of state constitutional violations");
363. see also supra notes 269-277 and accompanying text.
364. See Lundqvist & Roman, supra note 214, at 227 (discussing Swedish commission's proposal to construct gender neutral parental insurance).
365. Id.
366. Council Directive 76/207, art. 2, 1976 OJ. (L 039) (EC), available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31976L0207:EN:HTML http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31976L0207:EN:HTML (on file with the Columbia Law Review).
367. Id.
368. See Case C-345/89, Criminal Proceedings Against Alfred Stoeckel, 1991 E.C.R. I4047.
369. Id. at 1-4066.
370. Id.
371. See Council Directive 92/85, art. 8, 1992 OJ. (L 348) (EC), available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31992L0085:EN:HTML (on file with the Columbia Law Review).
372. -414 U.S. 632, 651 (1974).
373. Id.
374. Id. at 638 n.8.
375. One legislative report names "mandatory leave for pregnant women arbitrarily established at a certain time during their pregnancy and not based on their inability to work" as an employment policy that would be prohibited by the PDA. H.R. Rep. No.95-948, at 6 (1978), reprinted in 1978 U.S.C.CA.N. 4749, 4754.
376. LaFleur, 414 U.S. at 639-640 (internal quotation marks omitted).
377. Id.
378. Reva B. Siegel, Dignity and the Politics of Protection: Abortion Restrictions Under Casey/Carhart, 117 Yale L.J. 1694, 1774 (2008).
379. EEOC, Facts About Pregnancy Discrimination (2008), at http://www.eeoc.gov/facts/fs-preg.html (on file with the Columbia Law Review).
380. Jim Hare, Rachida Dati-Super Maman ou mauvais précédent?, France-Soir, Jan. 10, 2009, available at http://www.francesoir.fr/politique/ 2009/01/10/rachida-dati-super-maman-ou-mauvais-precedent.html (on file with the Columbia Law Review).
381. Rachida Dati accusée de "profaner" le congé maternité, L'Internationale Magazine, Feb. 8, 2009, available at http://www.linternationalmagazine.com/article6138. html (on file with the Columbia Law Review).
382. Id.
383. See 29 U.S.C. § 2601(a)(5) (2006) ("[D]ue to the nature of the roles of men and women in our society, the primary responsibility for family caretaking often falls on women, and such responsibility affects the working lives of women more than it affects the working lives of men.").
384. For example, as James Q. Whitman discusses, European countries tend to have paternalistic legal rules limiting when stores can have sales in order to protect consumers from feeling pressured to make inopportune purchases.
385. Whitman, supra note 14, at 380.
386. -490 U.S. 228, 251 (1989) (quoting LA. Dep't of Water & Power v. Manhart, 435 U.S. 702, 707 n.13 (1978)).
387. -518 U.S. 515, 533 (1996).
388. Mary Anne Case, "The Very Stereotype the Law Condemns": Constitutional Sex Discrimination Law as a Quest for Perfect Proxies, 85 Cornell L. Rev. 1447, 1472 (2000).
389. See Joan C. Williams, Practicing Law Inst., Family Responsibilities Discrimination: The Next Generation of Employment Discrimination Cases, 763 PLI/Lit 333 (2007).
390. See Joan C. Williams & Stephanie Bornstein, The Evolution of "FReD": Family Responsibilities Discrimination and Developments in the Law of Stereotyping and Implicit Bias, 59 Hastings L.J. 1311, 1315-1316 (2008) (discussing clarity EEOC guidance provides public).
391. See EEOC, Caregiving Responsibilities, supra note 48, at 13-16 (providing examples of caregiver discrimination in which women are denied opportunities based on speculations about how caregiving would affect their work rather than on actual job performance).
392. Id.
393. -561 F.3d 38, 42 (1st Cir. 2009).
394. Id.
395. Id.
396. Id.
397. Id. at 48.
398. Id. at 44-45.
399. Id. at 45.
400. Id.
401. Id.
402. EEOC, Caregiving Responsibilities, supra note 48, at 17-18. In this example, an employer expresses concern about the stress and exhaustion that the employee might experience as a new guardian to young children, given the demands of the job. The employer then moves the female employee from lead positions on major accounts to supporting roles in smaller accounts.
403. Arlie Hochschild's seminal work on the subject described the household work done by working women as "the second shift."
404. See Arlie Russell Hochschild, The Second Shift 3-4 (1989) (discussing difference in amount of time spent caregiving between working women and working men);
405. see also Gornick & Meyers, supra note 13, at 35 (citing studies documenting gender gap in hours devoted to household labor and caregiving);
406. Gillian K. Hadfield, Households at Work: Beyond Labor Market Policies to Remedy the Gender Gap, 82 Geo. L.J. 89, 97 (1993) (pointing out that even women who earn more than men tend to do more housework than men);
407. Kessler, supra note 54, at 378-380 (citing various sociological studies since the 1980s showing women tend to do more caregiving and housework than men).
408. Sue Shellenbarger, Downsizing Maternity Leave: Employers Cut Pay, Time Off, Wall St. J., June 11, 2008, at D1 (citing recent study by Families & Work Inst.).
409. Id.
410. Massachusetts Maternity Leave Act, Mass. Gen. Laws ch. 149, § 105D (2008).
411. See Sue Shellenbarger, A Legal Brouhaha Over Leave for New Dads, Wall St. J. The Juggle Blog, Sept. 2, 2008, at http://blogs.wsj.com/juggle/2008/09/02/a- legal-brouhaha-over-leave-for-new-dads (on file with the Columbia Law Review).
412. David E. Frank, Massachusetts Men Now Eligible for Maternity Benefits, Mass. L. Wkly., June 9, 2008.
413. Mass. Comm'n Against Discrimination, Guidelines on Maternity Leave Act § 3 (2007), available at http://www.mass.gov/mcad/maternityl.html (on file with the Columbia Law Review).
414. See Foley Hoag LLP, MCAD Commissioner Announces that the Massachusetts Maternity Leave Act Applies to New Fathers (2008), at http://www.foleyhoag.com/ NewsCenter/Publications/Alerts/Employment-Bulletin/Employment-Bulletin-060408. aspx (on file with the Columbia Law Review) (noting recent consideration by Commission of discrimination complaints brought by men).
415. EEOC, Best Practices, supra note 49.
416. Id.
417. Directorate of Employment, Labour and Soc. Affairs, Org. for Econ. Cooperation and Dev., LMF2: Maternal Employment Rates 2, at Chart LMF2.1 (June 2009), available at http://www.oecd.org/els/social/family/database (on file with the Columbia Law Review).
418. Id.
419. Id.
420. Lisa Belkin, The Opt-Out Revolution, N.Y. Times, Oct. 26, 2003, (magazine), at 42 (discussing movement of women from workplace to motherhood).
421. See Neil Gilbert, A Mother's Work: How Feminism, the Market, and Policy Shape Family Life 14-16 (2008) (discussing trend of women leaving workforce and its implications for future career patterns).
422. See Pamela Stone, Opting Out?; Why Women Really Quit Careers and Head Home 207-237 (2007) (noting difficulties women face in balancing career and family).
423. OECD, Family Database, Table LMF5.1: Gender Pay Gaps for Full-Time Workers and Earnings Differentials by Educational Attainment (2008), available at www.oecd.org/els/social/family/database (on file with the Columbia Law Review).
424. Id.
425. See Treaty Establishing the European Community, art. 141, Feb. 26, 2001, 2002 OJ. (C 325) 33, 96 ("Each Member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied.").
426. Case 96/80, Jenkins v. Kingsgate, 1981 E.C.R. 911, 925-926
427. Id.
428. Council Directive 2006/54, art. 1, 2006 OJ. (L 204) 23, 26 (EC) ("The purpose of this Directive is to ensure the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation.").
429. Id. at 23.
430. For further explanation of the provisions that were consolidated into this "Recast Directive," see Susanne Burri& Sacha Prechal, EU Gender Equality Law 14 (2008), available at http://eceuropa.eu/social/ BlobServlet?docId=l77l&langId=en (on file with the Columbia Law Review).
431. See, e.g., Griggs v. Duke Power Co., 401 U.S. 424 (1971);
432. Jenkins, 1981 E.C.R. at 911.
433. See Case 170/84, Bilka-Kaufhaus GmbH v. Weber von Hartz, 1986 E.C.R. 1620, 1630 (holding that exclusion of part-time workers from occupational pension schemes constitutes discrimination unless justified by objective economic factors).
434. Id. at 1622.
435. Id. at 1628.
436. Id.
437. Ilhardt v. Sara Lee Corp., 118 F.3d 1151, 1152 (7th Cir. 1997).
438. Id.
439. Id. at 1157 (citing Hennessy v. Penril Datacomm Networks, Inc., 69 F.3d 1344, 1354 (7th Cir. 1995)) ("If we are to take judicial notice of afact, however, that fact must be indisputable.").
440. Id.
441. Phillips v. Martin Marietta Corp., 400 U.S. 542, 545 (1971) (Marshall, J., concurring).
442. Id.
443. Record v. Mill Neck Manor Lutheran Sch., 611 F. Supp. 905, 907 (E.D.N.Y. 1985) (citations omitted).
444. See, e.g., Wallace v. Pyro Mining Co., 789 F. Supp. 867, 868 (W.D. Ky. 1990) (rejecting need to determine whether denial of extension of maternity leave passes "muster under traditional disparate-impact analysis").
445. Edward J. McCaffery, Slouching Towards Equality: Gender Discrimination, Market Efficiency, and Social Change, 103 Yale L.J. 595, 671 (1993).
446. Gilbert, supra note 350, at 166.
447. Id. at 169.
448. Id. at 174-176
449. See Helinä Melkas & Richard Anker, Gender Equality and Occupational Segregation in Nordic Labour Markets 43 (1998) (citing cross-national study concerning occupational segregation by gender).
450. Conseil de l'Union Européenne, Bilan de la mise en oeuvre par les États membres et les institutions de l'UE du programme d'action de Pékin, Raport de la présidence française sur les indicateurs concernant la conciliation de la vie professionnelle et de la vie familiale inclus dans la série de conclusions adoptées par le Conseil 11 (2008), available at http://www.travail-solidarite.gouv.fr/IMG/pdf/ rapportconciliationviefam-vieprofess.pdf (on file with the Columbia Law Review).
451. Id.
452. OECD, Family Database, Table PF8: Use of Childbirth-Related Leave by Mothers and Fathers (2008), available at www.oecd.org/els/social/family/database (on file with the Columbia Law Review).
453. In the United States, the Wall Street Journal work-family blog reports anecdotal evidence that "[w]hen mom takes several months of maternity leave, but dad gets only a few days off, a care-giving-competence gap often develops between parents." Rachel Emma Silverman, Does Maternity Leave Affect Household Gender Roles?, Wall St. J. The Juggle Blog, Sept. 16, 2008, at http://blogs.wsj.com/juggle/2008/09/16/does-maternity-leave-affect-household- gender-roles/ (on file with the Columbia Law Review).
454. Swedish Equal Opportunities Ombudsman, supra note 252, at 6.
455. Conseil de l'Union Européenne, supra note 377, at 11.
456. Id.
457. See Jeanne Fagnani, Recent Changes in Family Policy in France: Political Tradeoffs and Economic Constraints, in Women, Work and the Family in Europe 58, 63 (Eileen Drew, Ruth Emerik &: Evelyn Mahon eds., 1998) (explaining parental leave has effect of "contributing to the maintenance of gender discrimination in the labour market by establishing asymmetrical professional trajectories within the couple").
458. C. trav. art. L1225-48.
459. In France, 30% of female workers worked part-time in 2002, as compared to 6% of male workers. Cédric Afsa Essafi &: Sophie Buffeteau, L'activité féminine en France: quelles évolutions récentes, quelles tendances pour l'avenir?, 398-399 Économie et Statistique No. 398-399, at 85, 87-88 (2006), available at http://www.insee.fr/ fr/ffc/docs-ffc/es398-399e.pdf (on file with the Columbia Law Review).
460. In Sweden, 41% of employed women work part-time, as compared to 8% of male workers. Statistics Sweden, Living Conditions Survey (ULF), Share of Women and Men in Gainful Employment in Different Age Groups (2008), available at http://www.scb.se/Pages/TableAndChart-47955.aspx (on file with the Columbia Law Review).
461. Of the women who work in the United States, 25% are in part-time positions. Women's Bureau, U.S. Dep't of Labor, Women in the Labor Force in 2008 (2008), available at http://www.dol.gov/wb/factsheets/QF-laborforce-08. htm (on file with the Columbia Law Review).
462. The analogous number for men was about 11% in 1993 (the number for American women in 1993 was the same as in 2008-about 25%). Melkas &: Anker, supra note 376, at 21 tb1.8. In France, the female share of all parttime workers was 83.3%, and in Sweden, it was 81.3%, significantly higher than American women's share of part-time work, which is 66.2%. Id. More recent data confirms that 25% of American women, but only 11% of American men, worked part time in 2003. U.S. Dep't of Labor, Part-time Workers: Who They Are and How Much They Earn (2004), at http://stats.bls.gov/opub/ted/2004/nov/wkl/art04.htm (on file with the Columbia Law Review).
463. Magnus Carlsson &: Dan-Olof Rooth, An Experimental Study of Sex Segregation in the Swedish Labour Market: Is Discrimination the Explanation? 2 (IZA, Discussion Paper No. 3811, 2008).
464. Id. at 1.
465. Swedish Equal Opportunities Ombudsman, supra note 252, at 22.
466. See Nev. Dep't of Human Res. v. Hibbs, 538 U.S. 721, 734 n.10 (2003).
467. See Martin H. Malin, Fathers and Parental Leave, 72 Tex. L. Rev. 1047, 1055 (1994) (discussing sociological studies supporting this theory).
468. See Comm. on Women's Rights & Equality, European Parliament, Report on the Proposal for a Directive of the European Parliament and of the Council Amending Council Directive 92/85 on the Introduction of Measures to Encourage Improvements in the Safety and Health at Work of Pregnant Workers and Workers Who Have Recently Given Birth or Are Breastfeeding, amend. 16 (2008), available at http://www.europarl.europa.eu/sides/getDocdo?pubRef=//EP//TEXT+REPORT+A6- 2009-0267+0DOC+XML+V0//EN (on file with the Columbia Law Review).