The Attachment Gap: Employment Discrimination Law, Women’s Cultural Caregiving, and the Limits of Economic and Liberal Legal Theory

Title VII has prohibited employment discrimination on the basis of pregnancy since 1978, when Congress passed the Pregnancy Discrimination Act (“PDA”), but it does not require employers to recognize women’s caregiving obligations beyond the immediate, physical events of pregnancy and childbirth. The Family and Medical Leave Act of 1993 (“FMLA “) also does little more than provide job security to some relatively privileged women in the case of childbirth. Neither of these statutes, which constitute the bulk of the United States’ maternity and parental leave policies, provides for the most common employment leave needs of caregivers, who by all measures are disproportionately women. This lack of protection has served to perpetuate a significant labor force “attachment gap” between men and women that has had serious economic and social consequences for women and children.

This Article examines the theoretical bases for the law’s inability to recognize women’s cultural caregiving, i.e., the caregiving work that women perform within the family that is unrelated to reproductive sex differences. Why has our law failed to address the conflicts between work and family that continue to disproportionately burden women? The author suggests that the answer lies in Title VII’s categorical framework, which is fundamentally unable to account for cultural experiences that are not universally shared by all women; in societal and judicial commitments to formal equality; and in the pervasive influence on our law of certain core concepts underlying liberal and economic theory, particularly the value of formal equality and the assumption that legal agents are autonomous, rational decision makers.

In the final part of the Article, the author reviews some of the primary responses offered by feminist legal theorists to the dominant paradigm, and suggests that such responses have failed to challenge it fully. Feminist theorists have focused on characterizing women’s experiences of caregiving as a condition of impaired agency growing out of gender socialization, attempting to fit women’s nurturing work into the limited but recognized exceptions to the autonomous, equal, and rational person assumed by the dominant framework. While this strategy has worked to obtain legal recognition of women’s biological experiences of pregnancy and childbirth, this Article suggests that it has proved less capable of addressing the rhetoric of choice that legitimates discrimination on the basis of women’s cultural experience of caregiving. It is clear that a refinement of the theoretical constructs underlying our law will be necessary before there will be any significant recognition of women’s disproportionate responsibility for caregiving as it affects their wage work. This Article suggests that the beginnings of such a construct should focus on the fundamental importance and value to society and to women of women’s caregiving labor, not upon depictions of caregiving as a socially-determined, gendered activity. The Article concludes by outlining the beginnings of an alternative paradigm on which to build a theory of workplace accommodation for women’s unpaid caregiving work, and reviews a number of concrete legal reforms that might be consistent with this alternative vision.