Uncomfortable Conversations

On Behalf of | August 8, 2014 | Employment Law

In “Is there a legal case for work-life balance?” published last week in Fortune, Caroline Fairchild raises the theory that federal anti-discrimination laws may mandate that workplaces have work-life balance.

As she correctly notes, U.S. employment laws prohibit company policies that disproportionately affect one group unless the policies have a “business necessity.”  For example, an employer could not make passing a test of upper-body strength a prerequisite for a job that does not require upper-body strength, as the test may have a disparate impact on women.  See EEOC Fact Sheet on Employment Tests and Selection Procedures.  Fairchild explains that this legal theory may be extended to require professional companies, such as banks and accounting firms, to allow employees to work part-time or from home, on the basis that policies requiring full-time, in -office work have a disparate impact on women.  She notes “it is reasonable to assume that women, as the primary childcare givers in most U.S. households, take on a majority of the tasks associated with running the home.”

Her statement about what it is “reasonable to assume” initially made me cringe.  As a lawyer who regularly represents women – including accountants – who have suffered discrimination in the workplace, I’ve repeatedly fought against stereotypes that women who have children are less committed to their work and uninterested or even undeserving of promotions.  Women regularly come to me with complaints that they had successful careers and promises of upward mobility—until their employers found out they were pregnant.  After announcing their pregnancy, these women find their work permanently reassigned and their performance ratings drop, even though their actual performance remained consistent.  Particularly because of these experiences, I found myself cringing at Fairchild’s “reasonable assumption” about the role of women.  (And it wasn’t just me, as a popular blog for accounting professionals was also uncomfortable with Fairchild’s theory.)

Part of my concern is that employers might use these “reasonable assumptions” as yet another reason for applying their stereotyped assumptions to devalue working mothers when, in reality, many women continue perform at and above their previous levels of excellence after having children.

However, upon further reflection I’ve realized that Fairchild’s assumption about women’s roles generally is not the same as an employer’s assumption that an individual woman will be less committed to her job after having children.  In fact, Fairchild’s assumption is not an assumption at all.  Whether we like it or not, studies show that women do take on the majority of tasks of running a home.  Even when the woman works and the man does not, and even when the woman would like to distribute housework more evenly.  As a result, workplace policies that are not family friendly do have a disparate impact on women.  And while it obviously makes us cringe to talk about suing your boss if you can’t work part time, if we’re going to address the dearth of women in leadership positions, we’re going to have to have more uncomfortable conversations.