Work-Life as a risk management issue

(Article originally published by WFC Resources, June 2005, as a Guest Column written by Professor Joan C. Williams, University of California, Hastings College of Law)

We have been taught to think about work/life issues through the lens of employee benefits, but, increasingly, effective handling of work/life concerns is a risk management issue. At WorkLife Law, we have been tracking cases in which employees sue for caregiver discrimination for nearly a decade. Such suits have increased by 450% since 1990. Over two hundred plaintiffs have gained relief in the courts, yielding judgments and settlements in the hundreds of thousands, or even millions, of dollars.

What is caregiver discrimination? The most obvious type is when a supervisor demotes, fires, or fails to promote a woman because she is a mother. In one Virginia case, a woman’s boss fired her when she phoned to arrange her work schedule after maternity leave, opining that women with children are not dependable, and that she belonged at home with her baby. Another supervisor refused to promote a pregnant women, looking straight at her pregnant belly and saying, “I was going to make you head of the office, but look at you now.”

We call these jaw-droppers. What leads people to make such inappropriate remarks? A new issue of Journal of Social Issues documents the “maternal wall” that affects all too many mothers. Experimental psychology studies show that, while “businesswomen” are seen as highly competent, similar to “businessmen,” “housewives” are rated as extremely low in competence, alongside the elderly, blind, ”retarded,” and disabled (to use the researchers’ words). Thus, in a story famous among women lawyers, a Boston attorney returned from maternity leave to find that she was given the work of a paralegal; “I wanted to say, look, I had a baby, not a lobotomy.”

What happened? She fell from businesswoman to housewife. Another study found that mothers typically have to do more to prove their competence than fathers do, including putting in longer hours are work – this helps explain “schedule creep,” in which the hours of part-timers creep back up towards full time, as the worker tries to establish that she is still committed and competent. Other studies document the stereotypes associated with part-time work. One found that women who work part-time are considered to be less warm than housewives, but less competent than businesswomen: they seem to get the worst of both worlds. These studies help explain the stigma so often associated with part-time work and flexible work arrangements. That stigma appears to track documented patterns of gender stereotyping.

Fathers, too, may experience caregiver bias if they seek an active role in family care. There appears to be a threshold effect. If a father does just a little – an occasional visit to the pediatrician – then his career actually may benefit as he is considered not only competent but also warm. But if a dad seeks an extended parental leave or a flexible work arrangement, he may well experience even more severe stigma, and career stall, than do mothers do. Gender stereotyping, again: in this case, the stereotype that a “real man” does not cut back on work for family reasons.

This new research has important implications for work/life professionals. It suggests that effective handling of work/life issues is not just an issue of optional benefits, to be offered to employees when times are flush, and cut back when budgets are tight. Increasingly, it is a risk management issue. An increasingly important component of the business case for family friendly policies is that a company who does not manage work/life issues in a pro-active and enlightened way faces the increasing risk of legal liability. At WorkLife Law, we are seeking funding to develop a training for employers and HR professionals to bring them up to speed on the emerging fields of caregiver discrimination and work/life law.

------------------------------------------------------------------------------

Joan C. Williams is Director of WorkLife Law, www.worklifelaw.org, and author of UnBending Gender: Why Family and Work Conflict and What To Do About It. She has authored or co-authored four books and over fifty law review articles. She has played a leading role in documenting workplace bias against mothers. Her “Beyond the Maternal Wall: Relief for Family Caregivers Who Are Discriminated Against on the Job,” 26 Harvard Women’s Law Review 77 (2003), (co-authored with Nancy Segal), was prominently cited in Back v. Hastings on Hudson Union Free School District, 2004 U.S. App. Lexis 6684 (2d Cir. April 7, 2004). She also has played a central role in organizing social scientists to document maternal wall bias. Her current work focuses on social psychology, and on how work/family conflict affects families across the social spectrum, with a particular focus on how caregiving issues arise in union arbitrations. For more information visit www.worklifelaw.org. and www.pardc.org. She has two children. Her husband is a public interest lawyer specializing in privacy and internet issues.