Women Who Opt Out

The Debate over Working Mothers and Work-Family Balance

Bernie D. Jones

• Publisher: NYU Press
• Year: 2012
• ISBN:
  9780814745069
• Topic: Sciences sociales
• Subtopic: Sociologie

In a much-publicized and much-maligned 2003 New York Times article, “The Opt-Out Revolution,” the journalist Lisa Belkin made the controversial argument that highly educated women who enter the workplace tend to leave upon marrying and having children. Women Who Opt Out is a collection of original essays by the leading scholars in the field of work and family research, which takes a multi-disciplinary approach in questioning the basic thesis of “the opt-out revolution.” The contributors illustrate that the desire to balance both work and family demands continues to be a point of unresolved concern for families and employers alike and women’s equity within the workforce still falls behind. Ultimately, they persuasively make the case that most women who leave the workplace are being pushed out by a work environment that is hostile to women, hostile to children, and hostile to the demands of family caregiving, and that small changes in outdated workplace policies regarding scheduling, flexibility, telecommuting and mandatory overtime can lead to important benefits for workers and employers alike. Contributors: Kerstin Aumann, Jamie Dolkas, Ellen Galinsky, Lisa Ackerly Hernandez, Susan J. Lambert, Joya Misra, Maureen Perry-Jenkins, Peggie R. Smith, Pamela Stone, and Joan C. Williams.

I
“Opting Out”
Women’s History and Feminist Legal Theory

INTRODUCTION
Women, Work, and Motherhood in American History

BERNIE D. JONES

When Betty Friedan wrote The Feminine Mystique in 1963, she pulled a veil off the “merry homemaker” image ascribed to American women of the postwar era (Tyler May, 1988; Coontz, 2011). It was the problem that had “no name,” women who asked whether being a mother and housewife was all there was to life. These were college-educated women who were told that they should not use their education and training in the workplace. The consensus was that well-educated wives were assets to their husbands as long as they remained in the home, because housewifery meant “true feminine fulfillment.” Her book became a best-seller and rallying cry for women eager to escape the “gilded cage” of domesticity. She later became one of the founding members of the National Organization for Women. This new women’s rights movement was developing a visible presence and institutions dedicated to the political and legal aspects of the struggle for equality.

Friedan described the nascent movement: “For those of us who started the modern women’s movement . . . [t]he new paradigm was simply the ethos of American democracy—equality of opportunity . . . but applied to women in terms of concrete daily life as the theory and practice of democracy may never have been applied before. And how truly empowering it was, those first actions we took as an organized women’s movement, getting Title VII of the Civil Rights Act enforced against sex discrimination” (Friedan, 1997, 5). This was about women tackling the next step after suffrage had been won in the earlier part of the century: women’s economic citizenship (Kessler-Harris, 2001).

American society had long been conflicted over the very issue of women’s economic citizenship, and the women’s rights movement of the twentieth century brought these conflicts to the fore. Although the Industrial Revolution changed American society in that more men and women went into the workforce, “female workers’ economic prospects” did not change (VanBurkleo, 2001, 136). Their work was seen as less meaningful and significant than men’s work: “[W]omen could work and hold property, but not too seriously, not as a rule, and not for ‘family’ wages” (VanBurkleo, 2001, 137). Women worked for less pay than men and their failure to earn wages on par with male workers meant that their salaries were secondary, thus pushing women toward seeing their labor in the workplace as less important than domesticity. This trend persisted into the twentieth century, as the tensions over women’s work took different manifestations.

Forty years after Friedan, Lisa Belkin addressed these tensions in her October 2003 article. Now that women have formal equality, what does it mean? Must formal equality equal substantive equality as the equal treatment feminists envisioned? Is all inequality the result of sexism? Can women who believe in equality and who call themselves feminists make choices that result in inequality for women in the workplace? The subtext to the article indicates a view among women of a younger generation of feminists that it is equal treatment ideology that is truly limiting by asserting that “choices” can only have one meaning, namely, that women must be absolutely equal to men. These younger women argue that feminism is meaningless without respect for women’s individual needs as being separate and apart from equal treatment outside of ideology. Those who wish to eschew work outside the home should not be criticized.

The foundation for these contemporary debates lay in the late-eighteenth-century ideology of “Republican Motherhood,” the notion that women’s efforts in the new nation should emphasize the domestic sphere of marrying and raising children to become civic-minded citizens (Kerber, 1980). By the nineteenth century, the rhetoric became one of “separate spheres,” that men belonged to the world of the public sphere—politics, commerce, and labor—while women belonged to the world of the private sphere. Women’s protection from the public sphere meant that their domesticity would enable men’s efforts in the public sphere. Continuing the duties ascribed to their foremothers of the Early Republic, they were to raise upstanding citizens (VanBurkleo, 2001).

Working women of the nineteenth century posed a challenge, though, to the idealism of domesticity and “separate spheres.” Not all women could stay at home as the dependents of their fathers and husbands. These women had to work, in that their families depended upon their financial contribution. Some women had no choice but to work—those whose husbands were low-wage workers or those who suffered the losses of widowhood or abandonment (Vapnek, 2009). As policymakers were confronted with the reality that some women must work, reformers of the Progressive Era used protectionism to minimize the harsh effects of industrialization upon them and thus reinforce the domestic sphere. Reformers’ efforts were predicated on the presumption that women were not as capable of negotiating their rights in the workplace. Women could thus be taken advantage of by unscrupulous employers; state legislatures aimed to intervene and take corrective measures. Thus, Muller v. Oregon, 208 U.S. 412 (1908), carved out an exception to the freedom of contract doctrine articulated in Lochner v. New York, 198 U.S. 45 (1905).

Both cases went to the heart of the newly developing regulatory state. What were its limitations? The Court considered a basic issue: which forms of regulations were legitimate and which were not? Comparing the two cases, the Supreme Court held quite differently when faced with similar gender-based protective labor legislation. Men had the ability to protect themselves, but women, as members of a protected and subordinate class, could not. Thus, some forms of legislation aimed at protecting the rights of male workers were unnecessary, because those workers could represent themselves well in the workplace and negotiate on behalf of their interests. Paternalism was rejected on their behalf; the state of New York in Lochner thus need not establish the maximum number of hours a baker could labor in a commercial bakery. Women, on the other hand, were not like male workers, in that they could not bargain on equal footing with men; their sex alone disadvantaged them. Moreover, protecting women workers served an important societal function: it protected women’s reproductive capacities. Thus, the state of Oregon could intervene and assert policy rationales for limiting the number of hours a woman could labor in a laundry. Other forms of legislation excluded women altogether from certain types of jobs, “defined by the time and place where they were performed or by the nature of the task” (Kessler-Harris, 2003, 181).

The aspects of the women’s rights movement of the twentieth century that focused upon gaining women equality in full economic citizenship jettisoned, in effect, the old protectionist trends that had long denied women access to certain types of jobs or which limited the number of hours that a woman could work. This movement made gains that turned American society upside down. The Civil Rights Act of 1964 specifically addressed gender-based discrimination in the workplace, with the EEOC acting in an administrative capacity, investigating and prosecuting employers who denied women equal opportunity, and Title IX further removed barriers to women’s access to training in nontraditional fields.¹ As a result of these gains, women began entering into nontraditional fields of study and began taking professional jobs which had been foreclosed to them. They became doctors, lawyers, and business managers. They could become educated in their chosen fields, find jobs, and receive the lucrative salaries men earned. Greater access to birth control meant that women could control their reproduction as they pursued their new professional goals.

Nonetheless, as more women began pursuing their professional goals at the same time as they were raising families, they came up against a brick wall. The workplace changed to accommodate women, but norms in the home did not necessarily change at the same time. Notwithstanding the new “equality,” women still undertook the bulk of the homemaking and childcare duties, while they worked outside the home just like men had always done. This was the brick wall of traditional sex roles: “[T]he career system inhibits women, not so much by malevolent disobedience to good rules as by making up rules to suit the male half of the population in the first place. One reason that half the lawyers, doctors, business people are not women is because men do not share the raising of their children and the caring for their homes. Men think and feel within structures of work which presume they don’t do these things” (Russell Hochschild, 1997, xiii).

The goals of the women’s rights movement as found in feminist legal theory, the aspect of the movement dedicated to using law for the purpose of improving women’s status in society, was limited, some have argued, by its emphasis on equal treatment. Others have argued that the problem did not lie in feminism, but in society’s failure to change. This equal treatment feminist legal theory has had a long history, dating back to suffrage. It presumed that women were exactly like men; without the legal impediments that enforced women’s subordination—denial of suffrage, property rights, and employment, women would become equal in society (Levit and Verchick, 2006, 2–8). Critics responded that this feminist legal theory was inadequate in that it did not address the ways in which women are different from men: women bear children, men do not. Women tend to be caretakers of children, men do not. The workplace is predicated, though, upon norms that presume that men who work have no domestic responsibilities because their wives at home take care of those. Thus, the workplace did not address the needs of working mothers.

This debate became embodied in the sameness/difference debate which developed in the early 1980s, and which was signified by the notion of women’s “voice” as distinct from men’s (Gilligan, 1993). The adherents of “women’s difference” argued that yes, women are equal to men, but they are also different, and that to focus upon sameness misses the mark. These cultural/difference feminists argued that women have to become exactly like men in order to become equal, for example, being driven to succeed in the world of work and careers, to the detriment of their interest in caretaking and nurturing roles in the home. But because they are not men, their differences are ignored, resulting in inequality. Levit and Verchick, in assessing feminist theory’s development within the legal academy, explain the ostensible limitations of equal treatment: those who supported difference proposed by the late 1980s that protectionism should be reinvigorated. Formal equality under the law did not result in substantive equality. In order to reach substantive equality, women’s differences should be addressed in law (West, 1988).

Although equal protection doctrine as it was developed by the Supreme Court showed some promise, for example in recognizing sex-based discrimination as actionable, formal equality only proved how women would be penalized. In Geduldig v. Aiello, 417 U.S. 484 (1974), the Court upheld California’s denial of insurance coverage to state employees needing coverage for a normal pregnancy and childbirth. Asserting that a normal pregnancy was not a disability and not sex-based discrimination, even though only women were affected, the Court found that there was a rational basis for California to deny coverage. Women as a whole could get coverage—they were equal to men; they were not being especially targeted by the denial of pregnancy coverage. The Court held similarly in General Electric Company v. Gilbert, 429 U.S. 125 (1976), and upheld a private insurance plan’s exclusion of pregnancy-related disabilities. Cases like these led cultural/difference feminists to support the Pregnancy Discrimination Act of 1978 that broadened Title VII’s reach to include discrimination against pregnant women in the workplace (Levit and Verchick, 2006, 55).

Cultural/difference feminists could thus support the Family Medical Leave Act.² Although women’s work-family balance provided the impetus for legislation, the Act itself is gender-neutral; it nonetheless has become gender-specific by default. In Nevada Department of Human Resources v. Hibbs, 538 U.S. 721 (2003), the Court upheld the Act and made it applicable to the case of a man denied leave to care for his sick wife. The late Justice William Rehnquist wrote the opinion. The Act presumes, then, that men might have their own work-family balance issues to resolve, and accordingly this has enabled some men to negotiate family leaves with their employers as they coordinated child care responsibilities with their spouses. But this trend is not a common one, and as the Center for WorkLife Law has found,³ men can experience discrimination when they seek to use workplace policies that were originally envisioned for women to use as they pursued their attempts to balance work and family.

The Act applies to public agencies, state, local, and federal, including schools and private employers who employ fifty or more people. Women employed by covered employers can receive a total of twelve weeks’ unpaid leave during the year they give birth. But in order to be eligible, they must have been employed for a year prior to the time they request leave, and they had to have worked 1,250 hours during that period. This legislation was not easily won, though: “[F]or a long time the United States was the only Western industrialized country with no parental leave; after twelve years of lobbying, the result was the Family Medical Leave Act (FMLA). 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” (Williams, 2000, 237). Once women returned to work, they used the means which had long been an option for upper-middle-class and upper-class women: they hired baby-sitters and nannies to care for their children, contracting out their home care responsibilities. By contracting out their responsibilities at home, they became on par with men.

But once women returned to work upon giving birth to their children, the FMLA did not help any, because the matter of “cultural caregiving,” the tendency of women to be the primary caretakers of children, is not reached by antidiscrimination law (Kessler, 2005, 373). The FMLA only covers the extraordinary—mothers taking leave from work to care for young children—but it does not address the family-work balance issues of the mother who must juggle work with child care obligations long after she has recuperated from childbearing. It is about getting home from work in time to meet the baby-sitter, and managing with a sick child when one has limited vacation leave or sick days of one’s own. Under those circumstances, both Kessler and Williams argue that Title VII does not help any if a woman loses her employment. Is it about discrimination against women because they are working mothers, or is it a matter of women failing to meet work obligations that any reasonable employer has come to expect? The tendency has been to see these cases as fitting into the latter, and not as involving gender-based discrimination.

At the same time as women were experiencing all these pressures upon their ability to negotiate work-family balance concerns, including the phenomenon of the “second shift” and the limitations of family leave policies, they were under even greater pressure to become “perfect mothers.” This harkened back to the world of Betty Friedan’s 1950s-era ideal of wifedom and motherhood: “In those days, a wife and mother who worked outside the home was supposed to be losing her femininity, undermining her husband’s masculinity, and neglecting her children, no matter how much her paycheck was needed to help pay the bills” (Friedan, 1997, 5). Even though this orthodox view of 1950s-era families has been questioned for its veracity and its applicability to all postwar families, it persists as a social and cultural ideal (Coontz, 1992; Meyerowitz, 1994).

This mind-set became resurrected and reconfigured in the 1980s and beyond, with the rise of the “new momism”: “the insistence that no woman is truly complete or fulfilled unless she has kids, that women remain the best primary caretakers of children, and that to be a remotely decent mother, a woman has to devote her entire physical, psychological, emotional, and intellectual being, 24/7, to her children” (Douglas and Michaels, 2004, 4). They argue, “[c]entral to the new momism, in fact, is the feminist insistence that women have choices . . . . The only truly enlightened choice to make as a woman . . . is to become a “mom” and to engage in “intensive mothering,” bringing to child rearing a combination of selflessness and professionalism” (Douglas and Michaels, 2004, 5). Women “are in powerful competition with each other, in constant danger of being trumped by the mom down the street, or in the magazine we’re reading (Douglas and Michaels, 2004, 6). They explain, “[T]he competition isn’t just over who is a good mother—it’s over who’s the best” (Douglas and Michaels, 2004, 6).

Judith Warner adds that the pressure for middle-class mothers to become perfect became relentless, because “every decision we make, every detail we control, is incredibly important” to their children’s future success in re-creating their parents’ middle-class lives (Warner, 2005, 33). As a result, anything that might seem to undermine that possibility has to be pushed aside, like the job that might impr...