Just Leave, 39 Harv. Women's L.J. 1 (2016)
The story of work and family conflict is a story of social change. In the last three decades, millions of American workers have moved into precari- ous jobs, and most of these jobs lack benefits such as sick days, vacation, or family leave. Forty percent of the American workforce now works in non- standard, contingent, or precarious jobs. At the same time, more families now depend upon a single parent for both caregiving and financial support, and far fewer families have a full-time caregiver at home. Public policy has not kept pace with these changing social conditions, and as a result working families now face a caregiving crisis. Although federal lawmakers recently proposed paid family leave as a solution, studies of California's similar paid family leave program raise serious questions about whether this solution will work. These studies find that low-wage workers disproportionately do not take family leave even though it is paid, a startling finding because these are the workers who have the greatest economic incentive to use paid family leave. These findings suggest that lost wages are not the only deterrent to taking family leave.
This Article documents and explains barriers to using family leave, drawing on original survey data from a statewide representative sample of California workers who needed but did not take paid family leave. It ana- lyzes how workplace practices and interactions dissuade workers from tak- ing family leave even when it is nominally available. We find that these workers forgo leave because they both witness and experience retaliation at work for taking family leave. Their employers use gendered conceptions of work and family to justify this retaliation and to frame work-family conflict as a private, personal issue, rather than the product of changing work de- mands and social conditions. Employers continue to expect workers to be as available and dedicated as the outdated industrial-era male breadwinner with a stay-at-home wife, even when those employers no longer provide good wages, secure employment, or regular hours in return. Employers draw on work and family norms of the past to justify retaliation for taking leave and to extend their control over workers. Because care responsibilities disproportionately burden women and low-wage workers who cannot purchase re- placement care on the market, these dynamics contribute to gender and class inequality at work. Moreover, to the extent that low-wage workers are dis- proportionately people of color, these dynamics also exacerbate racial ine- quality. This Article proposes legislative reforms to address these non- economic barriers to taking paid family leave.