Deconstructing the Maternal Wall: Strategies for Vindicating the Civil Rights of "Carers" in the Workplace

I. INTRODUCTION While the glass ceiling and sexual harassment continue to pose formidable obstacles to women's advancement in the workplace, many women are also harmed by another form of gender discrimination known as the "maternal wall." (2) Women run up against the maternal wall when they are discriminated against in the workplace because of past, present or future pregnancies or because they have taken one or more maternity leaves. Women also may experience discrimination when they adopt part-time or flexible work schedules. In recent years, women have increasingly sought legal relief to remedy discrimination related to the maternal wall. In 1992, women filed 3,385 charges of pregnancy discrimination, pursuant to the Pregnancy Discrimination Act, (3) with the Equal Employment Opportunity Commission (EEOC) and state and local Fair Employment Practices Agencies, and by 2004 that number had increased by nearly forty percent to 4,512. (4) In 1992, the total monetary benefits recovered as a result of the filing of these charges, excluding monetary benefits obtained through litigation, nearly tripled from $3.7 million in 1992 to $11.3 million in 2004. (5) Likewise, complaints filed with the U.S. Department of Labor concerning the Family and Medical Leave Act (FMLA) (6) are on the rise. Administrative complaints to the U.S. Department of Labor increased by twenty percent in the past three years from 2,790 in 2001 to 3,350 in 2004. (7) Of those complaints, the majority involved employees who asserted that they were terminated after they sought FMLA leave. (8) In addition to filing complaints with administrative agencies, women who have experienced maternal wall discrimination are increasingly seeking to vindicate their civil rights through litigation. One recent study of FMLA litigation identified 140 written opinions issued between 1995 and 2003 concerning childbirth or adoption leave. (9) Termination of employees after FMLA leave was the primary reason that employees filed a complaint (32% of complaints). Employer refusal to restore the employee to an equivalent position after leave had ended produced the second highest number of complaints (23% of complaints), followed closely by the denial of FMLA leave (22% of complaints), and termination as the result of requesting leave (18% of complaints). (10) With many cases being brought pursuant to the FMLA, as well as Title VII of the Civil Rights Act (Title VII) (11) and the Equal Pay Act, (12) a substantial body of case law has developed in which plaintiffs have prevailed. These cases reveal that, notwithstanding widespread criticisms of these civil rights laws, many mothers--and others who have been discriminated against because of their caregiving responsibilities--are suing, and courts are often finding in their favor. This article is the product of collaboration between a seasoned civil rights litigator, Elizabeth Westfall, and the director of the Center for WorkLife Law at University of California, Hastings College of the Law, Joan Williams. WorkLife Law is dedicated to decreasing the economic vulnerability of "carers" by working with all sides--employers and employees, (13) plaintiffs' (14) and management-side employment attorneys, (15) as well as unions, (16) and the press. (17) This article examines some of the recent, groundbreaking case law from the perspective of plaintiffs' employment lawyers. Part II of this Article discusses the impact of recent case law on the development of maternal wall jurisprudence. Part III discusses where courts have narrowly construed the civil rights statutes under which plaintiffs have brought their claims or imposed other barriers to obtaining relief, and suggests strategies plaintiffs' lawyers can use to overcome these hurdles and redevelop the case law. Finally, Part W explores the potential of existing statutes to challenge the legality of specific practices--such as the requirement that employees conduct all work in the office and during particularized hours--that unfairly disadvantage many carers. …