Families are More Popular than Feminism: Exploring the Greater Judicial Success of Family and Medical Leave Laws

Abstract

Workers do not exist in a vacuum; they have families and medical needs. Many employees struggle with caring for themselves and loved ones within the rigid confines of the work week. Congress passed the Family and Medical Leave Act of 1993 (FMLA) in order to ameliorate this problem, but the statute has proven to be an incomplete solution. Recently, federal legislators have proposed laws to enhance the existing leave rights under the FMLA. Similarly, a number of states and municipalities have passed laws to expand employees' ability to take leave from work in order to care for family or medical issues. Given the momentum and interest in legal reform, it is appropriate to ask whether expanded leave laws will be effective in changing the lives of actual workers. More specifically, will the new leave laws survive the inevitable encounter with a judiciary that has a markedly poor history of enforcement in other employment law contexts. In the clearest example of this judicial resistance, claims brought under federal anti-discrimination laws such as Title VII of the Civil Rights Act of 1964 (Title VII) have a distinctly low success rate in comparison to other civil actions. In contrast, claims brought under the FMLA fare significantly better, with nearly double the Title VII rate of successful outcomes for plaintiffs. This Article uses three theoretical frameworks, political, psychological, and institutional to evaluate and understand the greater success of leave laws. Political science theories suggest that the FMLA is more successful because the statute is less controversial and inspires a weaker ideological response in judges than anti-discrimination laws. The theory of cultural cognition suggests that the FMLA is more successful because it does not trigger the strong unconscious resistance associated with discrimination claims. Finally, theories of institutional inequality indicate that the FMLA is more successful because it can undermine the traditional norms of the ideal worker in ways that the anti-discrimination laws cannot. Overall, all three theories point to a consistent explanation for why FMLA claims have better outcomes. Namely, leave laws such as the FMLA have many of the characteristics of a neutral benefit statute, in contrast to anti-discrimination laws' focus on protected classes such as race or gender. Ultimately, understanding what differentiates the outcomes between these related statutes will shed light on judicial decision-making in employment law and will suggest avenues for advocates seeking to change women's work life for the better.