This article addresses the need for a comprehensive, nationally-funded system of compassionate or nurturing work leaves to permit and support a variety of increasingly needed caregiving services. However, because the article was presented at an employment discrimination colloquium as part of a debate termed “equal versus special treatment,” a few introductory remarks spelling out the link between the two topics are in order.
Traditionally, our society has merged childrearing and childbearing into a single notion of maternity, which has been viewed as a special and uniquely female function. Motherhood has been perceived as a woman’s primary role to which other activities and functions should be, and often are, subordinated. One manifestation of this phenomenon is the assumption that women who become pregnant will quit or reduce their commitment to participating in the paid workforce.
Contemporary feminists have attempted to sever the automatic linkage of pregnancy and parenting that assigns childrearing, as well as childbearing, to females. Most feminists who identify with the approach called the “special treatment” or “positive action” approach, as well as those who identify with the approach known both as the “equal treatment” or “comparative treatment” approach, seek to define the parenting function in sex-neutral terms and to promote participation by men. Both groups, for example, would insist that childrearing work leaves be called parental leaves, rather than maternity leaves, and be extended to men as well as women.
Both groups also regard riles or practices according differential treatment to pregnant women as sex-based classifications. Adherents of the two approaches differ, however, in when they would tolerate such classifications, and thus in when courts should strike down government use of such classifications. Special treatment advocates accept, and in fact welcome, such classifications where they benefit women. For example, a law that prohibits the firing of disabled pregnant women but permits the firing of other temporarily disabled workers would be acceptable under a special treatment theory. Equal treatment advocates, like myself, doubt that laws that appear to accord pregnant women preferential treatment will ever really benefit women. Instead, such laws are likely to jeopardize the hiring of women to begin with, because of the potential increase in costs to the employer. Such special treatment of women workers is also likely to engender resentment by male co-workers, and to reinforce the notion, for both men and women, that women’s maternal role is primary.
Mandatory arbitration for guestworkers, a uniquely vulnerable group, will result in class inequality and worse conditions for all workers.
Voting rights advocates should explore section 11(b) of the Voting Rights Act as a vehicle to combat voter intimidation.
An evidentiary privilege to protect workers' confidential communications from disclosure in federal and state court proceedings would support unions.
Labor organizing privilege is not a magic bullet that will secure the rights of workers to organize and collectively bargain. Employers will continue to resist the efforts of their workers to organize.