Our jurisprudence of sex equality imagines a world without prescribed gender roles in the family and the public economic and political spheres. Almost fifty years ago, the Supreme Court repudiated the “separate spheres” tradition, which confined women to role of unpaid caregiver in the family and home, while reserving breadwinning and public power to men. Yet, neither constitutional equal protection nor statutory employment discrimination law acknowledges that the separate spheres tradition formed the infrastructure of social reproduction in our political economy. Mothers at home raised the next generation of citizens-workers without pay or rights. It was an unjust infrastructure, premised on women’s subordination, but it served an enduring social need.
Today, no alternative infrastructure of social reproduction has emerged to replace the unpaid contributions of full-time mothers and homemakers. School days did not expand to match the schedule of mothers working full-time, and the definition of full-time work did not shrink to enable its participants to devote much time to the duties of child-rearing. In the absence of a robust state system of social support, working families attempt a range of uncoordinated, expensive market-based improvisations towards gender-equal relations in the home and in the public sphere. The result is an eroded and unjust infrastructure of social reproduction whose burdens fall especially hard on women; the remaining gender pay gap is largely a motherhood gap. Furthermore, poor women, often migrants, are doubly burdened when they are employed to meet the care needs of more privileged households, while caring for their own families at home. Employment anti-discrimination law was intended to counteract sexist stereotypes, but a fuller sex equality requires a new infrastructure of social reproduction.
Equal employment opportunity antidiscrimination law is ill-equipped to address this disparity. It assumes that as long as discrimination is eliminated, women will be sufficiently liberated from their traditional roles in the home to take on full time work outside the home. This thin conception of equality depends on the availability of substitute caregivers – relatives like fathers or grandparents who cannot or need not engage in full-time market work, the paid wage-earning caregivers entering private homes, businesses selling childcare services, or state-based educational institutions. The law of sex equality struck at the outdated and deteriorating infrastructure of social reproduction by disapproving of gender stereotypes based on traditional roles in the family, but it did not mandate the creation of an alternative infrastructure.
The unjust infrastructure did not wither away, but instead unleashed a vicious cycle of inequality. Working mothers continue to perform a “second shift” of caregiving work to raise their families. Second-shifting makes it more difficult for women to perform as ideal workers in the workplace, which engenders exaggerated perceptions of motherhood’s incompatibility with market work. Such perceptions motivate discrimination against women and limit women’s employment opportunities, which in turn makes women more inclined to perform the necessary tasks of social reproduction. The law of gender equality has attempted to disestablish gender inequality by prohibiting discrimination. But to truly disestablish gender inequality, we need to replace the eroded social reproduction infrastructure. To establish equality, we need to define a more humane infrastructure for raising the next generation and make collective cross-class efforts to build it.
The law of pregnancy accommodation, for example, punishes women for contributing to biological and social reproduction. In UPS v. Young, the Supreme Court addressed an employer’s refusal to give light duty to a worker who was unable to lift heavy objects during her pregnancy. The Supreme Court determined that an accommodation would be required if the employer provided such accommodations to all or most similarly situated nonpregnant employees. While this decision reversed a summary judgment for the employer, the Court spelled out the logic of antidiscrimination law: treating pregnant workers better than other work-incapacitated workers would grant “most favored nation status” to pregnant women and was not required. If a company refuses to accommodate workers with off-the job-injuries, treating the pregnant worker the same as a nonpregnant worker with off-the-job injuries is not sex discrimination because the policy applies equally to everyone. But this “equal” application of the policy ignores the fact that pregnancy is uncompensated and socially productive work that contributes to economic growth and affects 86 percent of American women by the time they have reached the age of 44. The vast majority of women, including unmarried women, become mothers during their very productive years.
Antidiscrimination law’s stinginess with accommodations pushes women out of market work and reinforces the old model of social reproduction. When a pregnant worker is pushed out of market work by non-accommodation, her survival, as well as that of the baby, depend on the wages of a nonpregnant family member. Some 22 states have attempted to remedy this inequity by adopting Pregnant Worker Fairness Acts, which require reasonable accommodations for pregnant workers beyond those required for other work-incapacitated persons. Accommodations for pregnant workers and paid maternity leave help keep mothers employed, which then makes it economically feasible for the nonpregnant partner to interrupt his or her career for caregiving. Such interventions should be embraced as advancing gender equality, rather than in tension with it, even though they may involve better treatment for pregnancy than for work-incapacitating conditions unrelated to social reproduction.
The constitutional law of parental leave, as articulated in Nevada v. Hibbs, also reinforces the gendered division of reproductive labor. According to the Supreme Court, the Family and Medical Leave Act (FMLA) is a gender equality statute because its parental leave policy is gender neutral. As is well known, FMLA guarantees unpaid parental leave to employees of large employers. A quarter century after its adoption, efforts to legislate paid parental leave at the federal level remain unsuccessful, and only 13 percent of private-sector employees get paid family leave. Unpaid family leave assumes that the family can depend financially on the parent who is not taking leave, if they are in a financial position to do without one person’s wages in the first place. Thus, the logic of unpaid parental leave belongs to the gender-unequal social reproduction infrastructure, even though FMLA is lauded as an enforcement of gender equality because of its gender neutrality. The level of pay for parental leave, rather than its gender neutrality, is more significant for encouraging fathers to take leave in furtherance of gender-equal social reproduction.
Once fully recognized as infrastructure, the transition from gender inequality to gender equality should look very different from the enforcement of antidiscrimination norms that we most readily associate with using law to pursue gender equality. What if we redirected the energy and resources now spent on litigating instances of gender-unequal treatment towards building humane institutions to support social reproduction? Pregnancy accommodation and paid parental leave are pillars of this more just mode of raising children, and antidiscrimination law ought not to constrain their expansion by objecting to pregnancy’s “most favored nation status” or insisting on gender neutrality above all. A gender-equal infrastructure of social reproduction will also require a revolution in education and work. If all parents are full-time workers, a public education system designed around the norm of one non-working mother is inadequate. When children are being raised by parents who are working and caring equally, either the norm of full-time work has to be revised to take account of the length of the school day and the commencement of schooling at age 5, or the norm of the 6-hour school day and the appropriate age for socialized care and education have to be revised to take account of the 8-plus-hour workday and the short length of legally protected parental leave.
These robust efforts to pursue gender equality through the improvement of social reproduction infrastructures have been under way in many European countries for several decades. While pregnant worker accommodations and paid maternity leave originated in the constitutional protection of motherhood rather than gender equality in countries like Germany and France, nonetheless, European countries that invest in pregnancy protection, paid parental leave, and education are outperforming the United States in reducing gender inequality. Notwithstanding the challenges of legal transplant, a LPE approach to gender equality should engage these global comparisons. Otherwise, we risk reinforcing the crumbling infrastructure of social reproduction.