family values

Family Values

The opinion of Bush's newest nomination to the Supreme Court, Samuel

Alito, regarding the abortion issue will undoubtedly receive a flood

of attention in coming weeks. But Alito's opinion regarding the Family

and Medical Leave Act (FMLA), signed into law in 1993 by Bill Clinton,

also seems deserving of close scrutiny - particularly since it

highlights one of my greatest frustrations regarding political

stereotypes: the notion that conservatives are better defenders of

family values than liberals are.

In 2000, Alito authored an opinion in which he ruled that the FMLA was

an instance of unconstitutional congressional overreach. In

particular, he said that the FMLA was unconstitutional because there

was no evidence for the notion that women are disadvantaged in the

workplace when they are not allowed to take family leave. Furthermore,

he argued, the requirement that everyone be guaranteed 12 weeks of

unpaid family leave was a disproportionately strong remedy:

Notably absent [from the FMLA] is any finding concerning the

existence, much less the prevalence, in public employment of

personal sick leave practices that amounted to intentional gender

discrimination in violation of the Equal Protection Clause.

...Moreover, even if there were relevant findings or evidence, the

FMLA provisions at issue here would not be congruent or

proportional.

Alito's idea that women are not disadvantaged when they can not take

maternity leave seems absurd, both intellectually and factually. Even

William Rehnquist, who wrote the Supreme Court's 6-3 opinion in 2003

overturning Alito's ruling, found Alito's argument deeply flawed.

In the Supreme Court majority opinion, Rehnquist cited the extensive

evidence that was presented during the debate about the FMLA in

Congress, and that clearly documented the pervasive discrimination

implicit in unregulated family leave policies. Furthermore, Rehnquist

argued that the FMLA was an entirely appropriate remedy to this subtle

form of discrimination. These powerful paragraphs summarize the

argument:

Stereotypes about women's domestic roles are reinforced by parallel

stereotypes presuming a lack of domestic responsibilities for men.

Because employers continued to regard the family as the woman's

domain, they often denied men similar accommodations or discouraged

them from taking leave. These mutually reinforcing stereotypes

created a self-fulfilling cycle of discrimination that forced women

to continue to assume the role of primary family caregiver, and

fostered employers' stereotypical views about women's commitment to

work and their value as employees. Those perceptions, in turn,

Congress reasoned, lead to subtle discrimination that may be

difficult to detect on a case-by-case basis.

...By creating an across-the-board, routine employment benefit for

all eligible employees, Congress sought to ensure that family-care

leave would no longer be stigmatized as an inordinate drain on the

workplace caused by female employees, and that employers could not

evade leave obligations simply by hiring men. By setting a minimum

standard of family leave for all eligible employees, irrespective

of gender, the FMLA attacks the formerly state-sanctioned

stereotype that only women are responsible for family caregiving,

thereby reducing employers' incentives to engage in discrimination

by basing hiring and promotion decisions on stereotypes.

While Rehnquist provided the legal rationale explaining why the

Congress has the authority to make laws such as the FMLA, I think that

the most powerful argument in favor of the FMLA is simply this: a

society that values families should try to help parents spend more

time with their children, not put obstacles in their way.

It is worth noting that the most common complaint that opponents to

the FMLA voice is that it imposes expensive burdens on businesses.

(This suggests something bizarre about the conservative notion of

family values, by the way: it seems that families spending time

together is of secondary concern to business profitability.) But it

turns out that economists studying this issue have generally found

that family leave does not hurt businesses' bottom line, or economic

growth more generally. If anything, more generous family leave seems

to be modestly correlated to greater productivity, not reduced

productivity. (See this paper by Christopher Ruhm and Jackqueline

Teague for an example.)

Alito's opinion regarding the FMLA is therefore troubling to me in

several respects: he denies the obvious logic and evidence that

indicates that the family leave provisions (or lack thereof) that

workers faced prior to 1993 had profound and different effects on

working men and women; he is far out of the mainstream of American

public opinion (for example, surveys suggest that a large majority of

Americans believe the Congress should mandate paid family leave, not

to mention the unpaid leave stipulated by the FMLA); he is out of the

mainstream of American conservative legal opinion (as represented by

William Rehnquist, at least); and when he wrote that the provisions of

the FMLA constituted a "disproportionate" requirement, he implicitly

contradicted the economic evidence that indicates that the

requirements of the FMLA are actually very modest and place little or

no burden on businesses.