Critique of the Day: Erin Kelly, Discrimination Against Caregivers
Kelly, Erin L., "Discrimination Against Caregivers? Gendered Family Responsibilities, Employer Practices, and Work Rewards," in Handbook of Employment Discrimination Research: Rights and Realities, eds. Nielsen, L.B. and Nelson, R. New York: Springer (2005).
In this chapter, Kelly outlines the economic consequences of caregiving, and draws on outside studies and statistics to support explications of the mechanisms that produce such discrimination, and how anti-discrimination law may be used to challenge such mechanisms.
Caregivers, defined as “workers with extensive family responsibilities (341), are still predominantly women. Family care is still “gendered” in the sense that there are differences in the responsibilities allocated, and these track cultural expectations that divide along gender lines. There are many studies that demonstrate that women spend significantly more time on housework and childcare than do men, and this gender difference results in disparate employment outcomes and rewards: wage/promotion gaps, discrimination, even job termination.
I. The Economic Consequences of Caregiving
The current work model is centered on a full-time 40+ hours/week job commitment, the demands of which are difficult to meet for primary caregivers. Some economic consequences of this conflict between work/caregiving demands are:
1. Glass ceilings and the “mommy track”: meaning that there will be a constraint on how far women can advance in an organization if they do not fulfill the demands, leading to gender occupational stratification in the workplace;
2. Wage gaps: when caregivers, again primarily women, are unable to fulfill their full-time work obligations, they are penalized in the form of lower wages: part-time work earns less pay, leaving the workforce completely forgoes wages for that period and results in lower pay when women attempt to return to the workforce (the resume gap). The wage penalties extend beyond the period of leave or work-reduction: women who take only short breaks after a birth earn more than other mothers. In contrast, the consequences of caregiving for men are more limited and less severe, mainly because housework is itself gendered—cooking, cleaning, childcare are “time-sensitive tasks,” and must be done on weekdays, while “yardwork” can be done on weekends.
II. Theories Explaining the Economic Consequences of Caregiving
1. Human Capital Theory
This puts the responsibility of the consequences on the women: differential investment in occupational attainment results in differential economic returns. Women are more likely to leave the workforce; work fewer hours, invest less in education and training; expend less effort when working; and choose occupations or jobs that have lower penalties for working less and greater possibilities for part-time work, jobs that tend to be lower-paid. I am not persuaded by these theories, and Kelly cites a number of studies that refute the proposed explanations for economic differentiation.
2. Structural Organizations Theory
This model argues that organizational practices and processes are in part responsible for the differential occupational and economic returns between women and men and caregivers and non-caregiving workers. Organizational hierarchies for advancement; the reward for face-time; definitions of “work” and “worker” all operate to produce inequality between those workers who can best fulfill those defined roles (primarily men and non-caregivers) and those who are less able to (primarily women and caregivers).
3. Employer Practices
Similar to structural accounts of organizational practices, employer policies might also operate to produced gender-disparate outcomes in employment rewards. Demands for long, unpredictable hours, mandatory overtime, specific shifts (as opposed to "flex-time"), and rigid career tracks ("up-or-out" tenure tracks), insufficient leave policies: such policies disadvantage those employees with family responsibilities. But here is where change can be most easy to achieve and most effective: while it may be difficult to alter the structural aspects of organizations and certainly the cultural gender expectations of society with respect to family responsibility allocation, according to Kelly, changes in policies and practices can do much to improve caregivers' careers. This argument is made with the caveat that family-friendly policies carry with them a stigma of "lack of commitment," and thus many workers fear negative career consequences if they utilize official policies, and studies support such fears: economic penalties persist, even with alterations of employer policies, and even when such policies are there for the taking.
III. Remedying the Negative Economic Consequences of Caregiving Through Anti Discrimination Law
Kelly argues that caregivers will benefit from family-friendly policies most when such polices are integrated with existing human resources practices, in particular: 1) the supervision of the work process (the meaning of work) and 2) the performance evaluation systems (the evaluation of work).
Kelly suggests three anti-discrimination law claims that might serve as vehicles for remedying the economic marginalization of caregiving-workers:
1. Sex Discrimination Law
Under this approach, Kelly would extend the "sex-plus" disparate treatment theory of discrimination (that mothers are discriminated on the basis of sex plus their motherhood status, even if other childless women are not similarly discriminated) to extend to caregiver-discrimination. This is under the disparate treatment model (women are treated differently from men, even if other women not similarly situated are not discriminated against), and thus subject to the limitations of disparate treatment theory: the plaintiff class must be "willing, able, and eager to meet the job requirements", and we are still in the model of work that discriminates against caregivers.
2. Disparate Impact Theory
Under this theory, employers are accountable for "facially neutral" employment practices that disproportionately disadvantage workers in protected categories, which at this time are race, sex, national origin, and religion. Adding caregiver status to the list of protected categories would do much for rights consciousness, and clearly many employer policies disparately disadvantage caregivers. However, there are limitations to disparate impact theory as well, namely that it is difficult for courts to distinguish between employer practices/policies, and "institutional, entrenched practices" that are "the way things are done. Rigid career tracks are such institutional practices, and do not give the appearance of being a "policy by choice" that may be challenged in court. Also, demonstrating by a preponderance of evidence that a particular protected class is disparately impacted is quite difficult as an evidentiary bar. Finally, I would say that it is difficult to have "caregiver status" added as a protected category, even with the jurisprudence of "sex-plus" and pregnancy discrimination.
3. Reasonable Accommodation of Caregiving
This is an extension of disability law. Under this model, employers would be required to give reasonable accommodation of caregiving, specificially by altering practices and policies concerning work-time arrangements. Employers would be required to create flexible work arrangements. This model has the benefit of being gender neutral. This is the most persuasive and feasible of the three models.In summary, Kelly's chapter outlines the economic marginalization of caregivers, and explains the mechanisms for its persistence. Kelly's suggested vehicles for legal change would do much to "provide a new framework for understanding the experiences of caregivers, alter the negotiations between employees and employers, and prompt many organizations to add or elaborate their 'family-friendly' policies" (359).
However, as Kelly admits, "those policies, on their own, would not erase the economic and occupational penalties that caregivers face."The sociocultural narrative surrounding work and caregiving is inextricably tied to gender stereotypes. However, changes in organizational policies and legal mandates would do much to transform the narrative, especially with respect to the "rights consciousness" of caregivers, as "discrimination talk" can be a "powerful tool for challenging" the dominant narrative (359). Changes in law and policy, both at the legal and institutional level, would do much to diffuse new family-friendly policies and conceptions of work across the organizational environments. Obstacles remain, even if the legal framework is changed, for the following reasons:
1. Organizational responses to anti-discrimination law are largely symbolic and ineffectual, and organizations define compliance in the endogeneity loop
2. There is no incentive for the organizations to change, or police their changes to make sure they are effective
3. Organizations are resistant to change, especially with respect to redefining work and how work is rewarded.
Still, changing anti-discrimination law to address the economic marginalization of caregivers would achieve the following:
1. Recognize the marginalization of caregivers as inefficient and a legal liability
2. Re-evaluate the meaning of work and how work is rewarded
3. Ensure that caregivers are not economically penalized for taking advantage of family-friendly policies
4. Create enforcement mechanisms for ensuring meaningful compliance with the new redefined anti-discrimination law in the form of sanctions.
This is an excellent chapter. Kelly is very clear and persuasive. I am not entirely persuaded that the first two legal responses are 1) feasible or 2) efficacious, but I find the third response, the extension of reasonable accommodation law, to be plausible and persuasive. I think that Kelly's arguments about the mechanisms that perpetuate the economic marginalization of workers are cogent, as are her arguments about the transformative power of law to reshape the rhetoric of rights, and mobilize rights-taking consciousness.