Institutional Inequality and the Mobilization of the Family and Medical Leave Act: Rights on Leave

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It is only by disentangling these threads and carefully examining how they apply to a particular context that we can determine whether a universalist approach in that context makes sense. In this Part, I illustrate the point by discussing the recent proposals for a universalist approach to voting rights. I argue that such an approach will not address key problems to which voting rights policy should respond. Holder , a number of prominent commentators urged that Congress and civil rights advocates respond with a universalist approach.

When a legislature passes an election-administration law. How should we assess these calls for universalist approaches to voting rights? The first thing to do is to unpack the arguments that their proponents offer in support of them. These arguments have blended together tactical and substantive considerations. To be sure, their major rhetorical thrust has been substantive.

To Professor Issacharoff, they are largely questions of access to the ballot, implicated by state laws imposing voter identification requirements and restrictions on early voting. But there is an undeniable tactical undercurrent to these proposals as well. Inter-Tribal Council of Arizona, Inc. Gore litigation are more likely to gain traction with the courts than beefing up the civil rights model is. For his part, Professor Hasen is explicit that he believes that challenges to voting restrictions under antidiscrimination laws are unlikely to be successful with the current federal courts.

The stronger claim before this Supreme Court is to protect the voting process from partisan manipulation. I may be reading too much into these arguments, but I also perceive an important expressive undertone to them. Because the right to vote is at the core of modern notions of citizenship, perhaps universalist rules governing voting are especially important because they express a notion of equal citizenship in a way that more particularized rules as applied to other spheres education, employment, and so forth might not.

First, do universal approaches effectively attack the voting problems of today?

As I argued above, a major critique of the substantive argument for universalism is that universalist approaches may divert attention from persistent problems of discrimination and thereby leave those problems in place. That critique seems fully applicable to the post- Shelby proposals for voting rights universalism.

Those proposals focus on the problem of vote denial —restrictions on the opportunity to register to vote or cast a ballot. But such a law would also leave a lot of significant discrimination against black and Latino voters unremedied. That is because a great deal of that discrimination involves vote dilution, not vote denial, and it takes place at the county and local, not state, level. The proposals also fail to address the way race discrimination can instantiate differently in different times and places.

A voter identification law may not be especially burdensome for most voters in most places, but in some communities the same law may be quite burdensome for an identifiable and disproportionately minority-heavy group of voters. There may be no universalistic reason why we should require states to hold early voting on Sunday afternoons. And of course when we move from issues of vote denial to those of vote dilution, universalistic approaches offer even less traction against race discrimination and Issacharoff, Pildes, and Hasen do not argue to the contrary.

In the abstract, at-large and district-based elections could both be consistent with democratic theory or principles of good government. But if a municipality changes from one to the other form of representation in response to changing racial demographics, we may legitimately fear discrimination.

A universalist approach provides no basis to attack this sort of change—which is an extremely common means by which minority voters are deprived of full and equal participation in local democracy. To be sure, this disagreement might simply be a normative one. Perhaps those who urge a universalistic approach to voting rights after Shelby simply are skeptical that vote dilution is a significant harm—or a harm as significant as vote denial.

Space constraints prevent me from offering a normative defense of the importance of vote dilution here. For my purposes, the crucial point is to highlight this normative disagreement. The fundamental insight of section 5 of the Voting Rights Act was that those who engage in race discrimination in elections are clever, so any attempt to identify a set of forbidden voting practices will fail to combat discrimination effectively.

That jurisprudence cannot effectively respond to discrimination that a involves denying voting opportunities that the courts are not prepared to guarantee universally; or b involves vote dilution, not vote denial. This is a major substantive limitation of the universalistic proposals. Both Professor Issacharoff and Professor Hasen acknowledge that their proposals will not fully address specifically racial discrimination in voting—and, of course, both authors write against a backdrop in which section 2 of the Voting Rights Act continues to provide nationwide protection against voting discrimination.

I think they do not face up to just how important a phenomenon specifically racial discrimination continues to be, nor to the limits of section 2 as a regulatory tool, though. If a universalistic approach would attack a meaningful slice of discriminatory conduct, and is the most effective way to achieve that goal given current political and judicial realties, it is worth supporting. But I believe the tactical arguments for the universalist position are likely overblown.

In this regard, it is notable that the universalistic constitutional jurisprudence that both Professor Issacharoff and Professor Hasen promote has had only limited success—and no record of success in attacking the sorts of vote-denial practices felon disenfranchisement, voter identification laws that raise the most significant race discrimination concerns. The successful cases were all decided by the Sixth Circuit, a court whose decisions are frequently reversed by the Supreme Court, and the vitality of these cases outside of that circuit has yet to be tested.

For the most part, the cases have addressed questions of statewide uniformity such as the allocation of voting machines out of proportion to the number of voters in different areas of the state or relatively small-bore questions of election administration involving such matters as the rules for counting provisional ballots miscast due to poll-worker error The most expansive of these cases, Obama for America v. Husted , did address a limitation on early voting, but it merely affirmed a preliminary injunction, not a final judgment on the merits, and its holding may be limited to the context of eleventh-hour changes in early voting for some but not all voters.

These Sixth Circuit cases are no doubt important for the voters and candidates affected. And they do, to be sure, rely on important threads in the extant Supreme Court cases. If a universalistic approach to voting rights threatens to require serious scrutiny of too broad a range of election-administration decisions, courts are likely to ratchet down the effective level of scrutiny for those decisions across the board.

And if judges and other actors will resist voting rights measures that target race discrimination, it is doubtful that universalist approaches will avoid the same fate. Judges may, indeed, be more likely to enforce a voting provision targeted to race-based abuse, precisely because it is less destabilizing of the electoral system.

Indeed, opposition to voter identification laws already seems to have been politically coded in this way. The expressive harms or benefits of a legal rule are, I have argued, likely to turn less on its form than on the social and political context in which the rule is adopted. In my view, although universalistic efforts to promote access to the ballot are worthy, voting rights activists should not put most of their energies into those sorts of efforts post- Shelby.

But the disclosure regime should be accompanied by rules that are specifically directed at the problems of race discrimination in voting. The major goal of this essay has been to make a point about universalism and civil rights. Many scholars and activists—including me—have urged universalist responses to various civil rights problems.

But universalism cannot be a universal approach to civil rights. To decide whether it makes sense requires careful attention to the strengths and weaknesses of the tactical, substantive, and expressive arguments for universalism in each particular context in which universalist solutions are proposed.

Although many prominent scholars have urged a universalist response to that decision, I have argued, on substantive and tactical grounds, that an effective response to the problems of voting discrimination continues to require laws that target race discrimination directly. See Richard H. For other notable examples, see Richard L.

Hasen, Race or Party? See, e. Bagenstos, Law and the Contradictions of the Disability Rights Movement , [hereinafter Bagenstos, Disability Rights ] advocating universal health insurance and universal workplace accommodation requirements to address problems of disability inequality ; Samuel R. See also Rogers M. Of course, one could understand laws prohibiting race discrimination as universalist to the extent that they protected members of all races equally.

But because laws that specifically call attention to identity status share a set of dynamics that are different from the dynamics of laws that do not require any reference to identity status—and because this difference is an important one to explore—I treat those laws as targeted for purposes of my argument. In that sense, my understanding of universalism is narrower than one some might offer. Jessica A. Clarke, Beyond Equality? As I show in the remainder of this Part, commentators have often proposed labor or welfare standards that do not find antecedents in antidiscrimination laws such as just-cause termination regimes and universal health insurance as a means of achieving civil rights goals.

See 3 Ackerman , supra note 3, at See U. See Issacharoff, Discrimination Model , supra note 2, at ; Pildes, supra note 2, at Gore is its recognition that the Constitution protects the right to vote from being arbitrarily infringed, for any reason at all, whether or not race is involved. Pildes, Bush v. See Issacharoff, Discrimination Model , supra note 2, at Richard H. Times: Room for Debate , Feb.

Fisher , S. Katie R. See id. For a general discussion of off-duty conduct laws as a protection of social equality, see Bagenstos, Employment Law , supra note 5, at Michelle A. Bagenstos , Disability Rights, supra note 5, at , The extensive literature on political, social, and judicial backlash against the Americans with Disabilities Act, for example, highlights the ways in which political and judicial trends interact with and reinforce each other in this context. For a discussion of some of the complexities of the point as applied to the disability context, see Samuel R.

Bagenstos, Disability and the Tension Between Citizenship and Social Rights unpublished manuscript on file with author. See Yoshino, supra note 26, at Who is going to vote against that in the future? See Adarand Constructors, Inc. Pena, U. DeStefano, U. Monthly , Jan. Bush can be most proud is his fundamental transformation of the lower federal judiciary—a change that happened almost undetected by the left.

See Eyer, supra note 32, at See Katharine T. Samuel R. Bagenstos , Disability Rights, supra note 5, at Of course, not all of these arguments are consistent with each other. Many are in fact in tension. But that underscores my fundamental point in this essay: that the choice between universalism and targeting cannot be made in the abstract but only on the basis of a careful examination of the context at issue.

Julie C. Suk, Race Without Cards? For a recent effort to harness the political power of the civil rights label to obtain support for collective bargaining rights, see Richard D.

See Ford, supra note 60, at Troublingly for both sides of the universalism debate, they provoked a backlash largely because they were understood as mainly benefiting racial minorities, and indeed as being the most effective means of achieving racial integration in housing. I will return to this point. This is the basic political argument of Peter H. Fallon, Jr. See Wilson , supra note 42, at Randall Kennedy, Affirmative Reaction , Am. Prospect , Feb. Bagenstos, Disability Rights , supra note 5, at See Hasen, supra note 2, at 60; Pildes, supra note 2, at For an example of some of the difficulties of disentangling racial and political motivations in this context, see Easley v.

Cromartie, U. See Hasen, supra note 2. Bagenstos, Employment Law , supra note 5, at ; see Cynthia L. I have emphasized the limits of antidiscrimination law in overcoming deep-rooted structural inequalities in Samuel R. See Bagenstos, Future of Disability , supra note 83, at Not Tough Enough , 5 Yale L. See Bagenstos, Employment Law , supra note 5. Federal programs supporting homeownership infamously promoted racial segregation in housing during this period. See Bonastia , supra note 67, at See Fallon, supra note 73, at noting that most beneficiaries of class-based affirmative action are likely to be white.

Deborah C. Debt is both an outcome of the pressures parents face and a pressure that can itself trap parents as interest and fees accumulate. Among low- and middle-income households with credit cards, having children is one of the strongest predictors of indebtedness: households that include children younger than 18 years of age are 15 percent more likely to be carrying credit card debt from month to month than childless households. The use of payday loans is also significantly more common among families raising children, particularly those with low and moderate incomes.

In her seminal book, The Two- Income Trap, now Senator Elizabeth Warren found that the presence of children was the biggest predictor of whether a household would file for bankruptcy. Discrimination against pregnant workers and employees who have caregiving responsibilities is another factor that may keep parents out of work or harm their advancement on the job. A Cornell University study found that mothers were judged to be significantly less competent and committed than equally qualified women without children and were held to more stringent standards of job performance and punctuality.

The study found that men were not generally penalized for being a parent, although men who take family leave or seek to actively care for their children may also face discrimination. While there is no federal law that explicitly prohibits employers from discriminating against their employees on the basis of family caregiving responsibilities, parents have some protection from discrimination under the Pregnancy Discrimination Act, the Civil Rights Act, the Family and Medical Leave Act and state and local statutes.

Yet in , 45 percent of U. At the same time, access to abortion is becoming more limited. Between and , states enacted restrictions on abortion services, including banning some abortions, imposing waiting periods, putting restrictions on the providers allowed to perform abortion procedures, and limiting insurance coverage.

New legal realism

Every week, nearly 7 million children under age 5 are cared for by someone other than a relative or legal guardian. Often this care is costly and difficult to secure. A Washington Post poll of parents with children under 18 living at home finds that only 10 percent say childcare in their area is not too expensive or is not expensive at all. At the same time, half of parents say finding quality and affordable childcare has been difficult, including 21 percent who say it is very difficult.

The cost of childcare varies dramatically by the age of the child, the type of care, and the state where the family lives. The expense adds up quickly: Child Care Aware estimates married couples earning the median family income in their state would have to spend 6. For single parents the costs can be even more overwhelming—in every state annual costs of center-based infant care averaged over 40 percent of the state median income for single mothers.

Having 2 or more children in need of care further raises the costs. How can families afford such steep bills? Low- and moderate-income households may be eligible for public subsidies: nationwide approximately , families with 1. However, since states administer the federal funds, and may add their own subsidies, eligibility varies widely.

In general, families in poverty are the most likely to receive childcare assistance, yet as incomes rise, help paying for care may be cut off before families are capable of managing the costs on their own. In addition, funds may run out before all eligible families receive subsidies: in , 21 states had waiting lists for childcare assistance or had frozen intake of new families applying for assistance. While this paper focuses on economics, the reality is that few families see childcare as purely a pocketbook issue.

As they go to work, parents want to feel confident that their children are in a safe and nurturing environment and have opportunities for stimulation and learning. Yet there is wide variation in state standards for childcare centers and home-based care, as well as the qualifications of childcare providers. Childcare Aware reports that 31 states require a high school diploma or less for childcare center lead teachers, while 41 states require a high school diploma or less for regulated family childcare providers. For 3- and 4-year-olds, nursery and preschool programs offer both care and a more structured form of early education.

In preschool, as in childcare, low wages for teachers undercut professionalism and quality. For parents, high-quality public preschool offers a respite from being trapped between caregiving and earning income, as well as an assurance that their children are receiving an excellent start to their education. Caring for young children while also earning the income to support them does not have to leave parents trapped. Improved business practices and public policy solutions could help to ease the strain on families with young children, improving the lives of parents and children and increasing the odds that having a baby will no longer leave households broke.

In many cases, legislation has already been introduced in Congress that would improve the lives of parents and their children. In addition, public opinion polls show strong support for many of these policies. The FAMILY Act would guarantee workers up to 12 weeks of time for caregiving with partial income when they take time for the birth or adoption of a child or to care for themselves or a loved one with a serious health condition.

It would cover employees of all companies, no matter what their size. A recent poll of likely voters indicated that 76 percent favor a federal paid family leave system along the lines of the FAMILY Act, including support from 57 percent of Republicans. Under this legislation, employees of smaller companies would be guaranteed job protection, but not pay, for taking time off while sick.

Opinion polls indicate bipartisan support for requiring employers to offer paid sick time. Polling data has consistently shown strong support for raising the federal minimum wage, including a majority of Republican voters.

Article excerpt

Meanwhile middle-income families—including nearly 5 million working parents—would benefit from strengthening federal overtime regulations , as the Department of Labor has issued regulations to do. Yet raising pay standards can only help working parents if employers follow the law. Improve Schedules: Irregular and unpredictable work schedules make it harder for working parents to arrange childcare at the same time that it becomes more difficult to earn a stable income.

Combat Discrimination: Employment discrimination can result in parents being unemployed or underpaid, making it more difficult to support a family. Expecting mothers, for example, may be forced out of their jobs because employers refuse minor adjustments that would allow them to maintain a healthy pregnancy and keep working. The Pregnant Workers Fairness Act would require employers to accommodate the basic health needs of pregnant workers, such as allowing workers to carry a water bottle, take an extra bathroom break, or sit on a chair. Meanwhile, the Paycheck Fairness Act would provide more broad-based protection against pay discrimination that often targets mothers by enabling workers to discuss their pay rates with colleagues without fear of retaliation, mandating that employers prove pay disparities exist for legitimate, job-related reasons, and making it easier to seek legal redress for discrimination.

Further steps toward public pay transparency would enable working people to achieve greater equality and would give businesses an incentive to pay employees fairly. Public opinion surveys consistently find strong support for promoting pay equity. Opinion surveys find that 69 percent of Americans believe that contraception coverage should be a standard part of all health care plans. Access to contraception should also be expanded by legislation such as the Affordability IS Access Act , which urges the Food and Drug Administration to make birth control pills available over the counter and ensures that birth control pills be fully covered by insurance without a copay even if they are dispensed without a prescription.

Enhance Early Care and Learning: Public policy must aim to increase access to affordable, high-quality childcare. Expanding Head Start and mobilizing federal funds to help states and cities establish universal preschool programs for 3- and 4-year-olds would aid working parents, their children, and society as a whole. Policies by Workplace: Beyond what is legislated, employers can autonomously choose to pursue any and all of these policies for their own workforce: raising wages, improving schedules, providing leave, offering childcare, establishing safeguards against discrimination, and devising tailored policies to retain parents who have taken substantial time off work to care for children.

At the same time, workers have greater power to negotiate for workplace policies that enable them to care for their families and earn enough to support them when they organize into unions and can negotiate collectively for these priorities. Summary statistics comparing households with no children, younger children, and older children show statistically significant differences between the three populations.

In order to examine how much of those differences were due to the presence of children in the household, we ran several regressions to attempt to isolate the effect of childrearing on several economic variables. The regressions each used Current Population Survey data, pooled Annual and Social and Economic Supplements pooled to ensure sufficient sample sizes. The five variables we hypothesized that caring for a child might have a significant impact on are: log income , poverty status, labor force participation LFP , employment among adults in the labor force , and hours worked; thus, these are the dependent variables of our five types of regressions.

As the results below show, we ran separate regressions for adult men and women for each dependent variable to avoid an uninterpretable number of interaction terms. To test this, we divided adults into three groups: adults with no children younger than 18, adults whose youngest child was younger than 5, and adults whose youngest child was between age 5 and 17, inclusive.

We also hypothesized that partnership status would impact the effect of childrearing on our dependent variables; thus, we interacted partnership status with the youngest child categories, as shown by our final four regressors in the regression output below. The general model for each of the regressions was identical, changing only the dependent variable. Each regression took the form:. An ordinary least squares model was used for the first two regressions, while a logit model was used for the following three.

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