The Balance Gap: Working Mothers and the Limits of the Law
184
The Balance Gap: Working Mothers and the Limits of the Law
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Overview
In recent decades, laws and workplace policies have emerged that seek to address the "balance" between work and family. Millions of women in the U.S. take some time off when they give birth or adopt a child, making use of "family-friendly" laws and policies in order to spend time recuperating and to initiate a bond with their children.
The Balance Gap traces the paths individual women take in understanding and invoking work/life balance laws and policies. Conducting in-depth interviews with women in two distinctive workplace settings—public universities and the U.S. military—Sarah Cote Hampson uncovers how women navigate the laws and the unspoken cultures of their institutions. Activists and policymakers hope that family-friendly law and policy changes will not only increase women's participation in the workplace, but also help women experience greater workplace equality. As Hampson shows, however, these policies and women's abilities to understand and utilize them have fallen short of fully alleviating the tensions that women across the nation are still grappling with as they try to reconcile their work and family responsibilities.
Product Details
| ISBN-13: | 9781503602175 |
|---|---|
| Publisher: | Stanford Law Books |
| Publication date: | 03/21/2017 |
| Sold by: | Barnes & Noble |
| Format: | eBook |
| Pages: | 184 |
| File size: | 1 MB |
About the Author
Read an Excerpt
The Balance Gap
Working Mothers and the Limits of the Law
By Sarah Cote Hampson
STANFORD UNIVERSITY PRESS
Copyright © 2017 Board of Trustees of the Leland Stanford Junior UniversityAll rights reserved.
ISBN: 978-1-5036-0217-5
CHAPTER 1
Navigating the Rules in Public Universities
Constance is a thirty-nine-year-old assistant professor in her first year of a tenure-track position at a small public university in the American South. While on the academic job market in the year prior to our interview, Constance admits to having struggled with whether to get pregnant. "I'm probably in a little bit of an unusual situation because of my age. ... We've had some difficulty — not getting pregnant, but I had some losses, so I knew I was going to have to start work pregnant." When I spoke with her, Constance had just given birth. She says she timed her pregnancy so that she would give birth during the summer months, thereby hoping to avoid any impact on her teaching. This timing was also important because "I knew, because I had calculated all of this out, that I would not have maternity leave or modified duties because I hadn't been employed here for a year. ... I thought maybe they would kind of swing it, or maybe they would help me out with something, but I didn't know, and so that's why I had to — I timed it so I would have the baby in summer."
Constance says that she struggled considerably with the implications that starting a family would have on her career. She recounts feeling the dual pressure of trying to become a first-time parent at her age while at the same time starting a new job. Constance says she felt comfortable trying to get pregnant only in the window of time that would have allowed her to have her baby in the summer before she started her job, because "I was worried about how it would look at my job. ... I mean, I am a good worker, right? I'm a responsible person, and I didn't want to start off on ... what seemed like they would think of as an irresponsible thing."
Constance is simultaneously beginning her new role as a mother as well as her career as a tenure-track faculty member. The tension that she feels between her personal and professional life is one that other faculty members interviewed in this study expressed over and over again. Just like Constance, each of these women must consider her own circumstances when making decisions about her rights in pursuit of work/life balance. However, these faculty members, like Constance, must also consider both the formal and informal rules governing their institutions and how they will respond to those rules.
This chapter is the first of two in-depth looks at the case studies presented in this book. The goal of these chapters is to document the expression of legal consciousness among the interview participants in each institutional setting and highlight the most common themes and language the respondents employed. In these chapters, I explore women's personal narratives and present their own explanations as to what factors influenced their interpretation of and decision making around work/life balance laws and policies. These case study chapters paint a detailed picture of how women working in public universities and the U.S. military express their legal consciousness. Chapters 1 and 2 are also a springboard for exploring in more detail the formation of these women's legal consciousness, as women discuss how they have navigated the formal rules and structures and informal norms of their respective institutions.
In this chapter and the next, I discuss some of the most common themes that emerged in the interviews, and they are organized in such a way so as to highlight how the respondents discussed interacting with work/life policies on both formal and informal levels. Each theme discussed begins with an illustration from one respondent's story. In this chapter, for instance, I present Constance's story to introduce each major theme. I then support the presence of the theme with other women's stories. While each woman's experience is unique, the themes presented here are pervasive, reaching beyond one or a few of the women interviewed.
The Family and Medical Leave Act
Introduced in 1993, the Family and Medical Leave Act (FMLA) became the first, and still the only, federal policy regulating maternity leave in the United States. The FMLA is a historical development in American policy that was not easily achieved. As early as 1984, drafts of the legislation began circulating through Congress, and it took a monumental and sustained lobbying effort to eventually achieve its passage under the Clinton administration. The law affords employees twelve weeks of unpaid leave, but the law addresses more than maternity leave alone. The policy is also a federal attempt to take into account other issues that concern families trying to balance the tension between working and caring for a family. The FMLA applies to men as well and allows both sexes not only to take leave to be with a newborn child, but also affords unpaid leave for the purposes of adoption, caring for a sick child or an elderly relative, and for an employee's own medical emergency.
Despite its historic significance as a public policy achievement in the American political context, numerous studies have pointed out that the FMLA is a scant offering in the context of worldwide family leave policies. According to a 2011 Human Rights Watch report, at least 178 countries have national laws that guarantee paid leave for new mothers, and more than 100 of those countries offer fourteen or more weeks of paid leave. In contrast, 40 percent of American workers are ineligible to claim a right to leave under the FMLA. The twelve-week leave available under the FMLA is also unpaid, leading many who claim to "need" FMLA unable to take advantage of the policy. In one 2000 report, 77 percent of respondents who had reported that they needed leave also reported that they did not take the leave due to being unable to afford it.
Although nearly 57 percent of women with children under the age of one year are in the workforce, the FMLA covers only approximately 58 percent of all employees in the United States. This is due to technicalities in the law, such as allowing businesses with fewer than fifty employees to opt out of the mandate to provide FMLA leave. Eighty-nine percent of American businesses are not covered under the FMLA. Therefore, for many working mothers or mothers-to-be in the United States, federal law does not provide any leave protection. This is just one reason that many employers, including most colleges and universities, have introduced their own workplace-specific policies, aimed at improving work/life balance and providing incentives for the recruitment and retention of skilled women workers. Despite this more recent trend, only one-quarter of American workplaces offer any kind of paid maternity-related leave of any duration.
Each of the women faculty members interviewed for this study who had worked at her institution for at least one year were eligible for FMLA benefits because the universities were large enough for the law to mandate its coverage. However, some of the women in this study were also entitled to workplace-specific policies with additional benefits, such as some paid sick or family leave. I discuss the laws and policies that apply to the women in each case study in more detail later.
Women Faculty in Context
Academia provides an advantageous site in which to explore the impact of institutional context on the legal consciousness formation of individuals. While the academy has a long history of excluding women, in recent decades its commitment to the recruitment, retention, and promotion of women seems to have taken a turn for the better. Most academic institutions have implemented policies that would appear to be at the vanguard of the American workplace when it comes to accommodating the work/life balance needs of its employees. Work/life balance policies found within many academic institutions today include maternity and paternity leave, a stop-the-clock policy, modification of academic duties, breast-feeding facilities and policies, and flexible work schedules. Such policies, in conjunction with the FMLA, make up the formal legal landscape within which faculty operate.
Despite these efforts within academia, recent studies on the effectiveness of policies such as maternity leave and stop-the-clock in achieving their goals of equality of opportunity have demonstrated a gap between intention and effect. Thornton's use of survey data from seventy-six colleges and universities indicates that many institutions are not correctly evaluating the research periods of faculty who have used stop-the-clock policies. Similar discrepancies and even evidence of overt discrimination were also found in a 2004 American Association of University Women (AAUW) Educational Foundation survey. Other research has produced compelling evidence that women with children in academia experience much greater challenges to success than their peers in other professions, such as law and medicine. While roughly equal numbers of males and females may enter Ph.D. programs, women are "leaking" from the "academic pipeline," so that they are consistently underrepresented in the upper ranks of virtually all areas of higher education.
Explaining these discrepancies appears to be a complex matter. Lynn O'Brien Hallstein and Andrea O'Reilly, among others, argue that academic women face a unique set of circumstances that produce these inequitable results. In the opening to their 2012 book on academic motherhood, they summarize several studies that compare academic women with those in other professional occupations. Moreover, female academics have the highest rate of childlessness and are less likely to be partnered and more likely to be separated or divorced. In addition, O'Brien Hallstein and O'Reilly note, postsecondary teachers receive considerably lower wages and face more competitive job markets relative to other professions such as lawyers and physicians. Finally, some evidence points to large inequities in working hours, when both public and private labor are accounted for, between women and men, as being a possible explanation for the discrepancies between men and women in attaining the highest levels of professional achievement in academia.
The biggest factor that appears to be affecting this position of academic women, according to much of the scholarship, is that the years required for professional training and development among academic women are much longer than those in other professions. Wolfinger, Mason, and Goulden articulate this career trajectory's challenges to motherhood very well:
After four to eight years in graduate school, assistant professors have about six years to publish or perish. Only after tenure and promotion from assistant to associate professor are faculty members assured of job security. The median doctorate recipient is already 33 or 34 years of age; after a probationary assistant professorship, close to 40. In terms of career development this would be an ideal time for female professors to start their families, but biologically they are already past prime childbearing age.
This body of research on the challenges facing women in academia who wish to parent contributes to, and reinforces, a "negative narrative," according to Kelly Ward and Lisa Wolf-Wendel. Empirical studies such as those discussed above have joined more anecdotal storytelling, such as that in books and blogs like Mama, PhD, to create a "mystique" that "set[s] up an expectation that make[s] it difficult to imagine how a mother in today's society would be able to balance work and family, especially in a tenure-track position." Ward and Wolf-Wendel argue that while there is plenty of evidence to back this negative narrative, in fact women in the academy can balance work and family, and they (and others) dedicate books to discussing how to make these challenging professional circumstances more navigable for women.
Books such as these focus not only on outlining suggestions for formal policy improvements at the institutional level but also provide academic women with advice on how better to navigate academic norms and cultures in order to mitigate certain challenges. In Professor Mommy, for instance, authors Rachel Connelly and Kristen Ghodsee advise women to be cautious in trusting or confiding in other academic women — particularly "senior women":
There was a time when the feminist movement encouraged us to think of all women as belonging to one big sisterhood. ... The truth is that academia is a competitive business, and the people who have succeeded made lifestyle choices that supported their goals. This is especially true for women of a previous generation. ... They were often forced to make a choice between family and career. ... Given the sacrifices most of them had to make, they may be even more critical of you than some of your senior male colleagues.
Women faculty are not unaware of this discourse in the literature. Even if they are not aware of what policies apply specifically to them before becoming pregnant or adopting, academic women are often very articulate about the norms and expectations of their profession regarding work and family balance. Academic women are aware that they must involve themselves in both formal and informal navigation of their workplace environments. By engaging them in conversations about their navigation of these formal and informal structures, it is possible to observe how academic women's ideas about work/life policies are shaped and how those ideas connect to their decision making regarding rights and rights claiming.
Navigating the Formal and the Informal in Academia
Navigating Formal Structures
The interview data are derived from conversations with women at two distinct universities. The first, where fifteen of the participants are employed, is a small, public institution located in the Southeast United States and employs roughly five hundred full-time faculty members. For ease of discussion, I assigned this institution the pseudonym Elm University. Elm University is located in a "right-to-work" state, so the faculty members do not belong to a union. All faculty (including visiting faculty and adjuncts) who have worked at Elm for at least one year, and at least 1,250 hours in the previous year, are entitled to twelve weeks of unpaid FMLA leave, during which time they may use any accumulated sick or vacation time to receive pay. In addition, all faculty (but excluding visiting faculty and adjuncts) who have worked at Elm for at least one year are entitled to take advantage of a modified-duties policy, which must be taken in the semester of birth or adoption or in the subsequent semester, and may be used equally by both women and men. Faculty are expected to continue to work full time, but duties may be modified so that, for example, teaching expectations may be replaced with administrative duties, with the goal of creating a more flexible working environment in the months immediately following childbirth or adoption. Requests for modified duties are formulated in an agreement between the employee and his or her department chair and then submitted to the university's provost for approval. Faculty members who are on the tenure track at Elm are also eligible to stop their tenure clocks for one year. But women who are breast-feeding at the institution are not covered formally under state law or institutional policy. All of the faculty participants in this study did have the right, under federal law, to receive "reasonable" break time and accommodations for breast-feeding due to an amendment of the Fair Labor Standards Act passed as part of the 2010 Patient Protection and Affordable Care Act. At the time that these interviews were conducted, these provisions were not yet widely known or implemented. Additionally, many of the women faculty interviewed recounted experiences with breast-feeding that took place prior to 2010.
The second institution ("Oak University"), where nine interview participants were recruited, differs significantly from the first in a number of ways. Institutionally, Oak is a much larger public university (employing twenty-five thousand faculty and instructional staff), located in the Northeast, and is composed of several distinct colleges. Perhaps most significant, faculty members at Oak, including visiting instructors, are unionized. Within the past five years, Oak's faculty union negotiated a paid parental leave agreement that applies to all faculty members (men and women, including visiting professors and adjuncts) who are employed at the university for at least one year and are paid for eight weeks. All faculty members are also eligible to take the twelve weeks unpaid FMLA if they have been employed for one year, working more than 1,250 hours that year. However, the eight weeks of paid leave may not be taken in addition to the twelve weeks of FMLA (in other words, employees are not entitled to twenty weeks of leave). Rather, they are entitled to eight weeks of paid leave and four weeks of additional unpaid leave. As at Elm, women or men on the tenure track at Oak University who have or adopt a child are also eligible to stop their tenure clock for one year. Finally, in the state where this institution is located, female employees who are breast-feeding are eligible for unpaid break time to express milk and may request a reasonable location in which to do so.
(Continues...)
Excerpted from The Balance Gap by Sarah Cote Hampson. Copyright © 2017 Board of Trustees of the Leland Stanford Junior University. Excerpted by permission of STANFORD UNIVERSITY PRESS.
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Table of Contents
Contents and AbstractsIntroduction: In Pursuit of "Balance" chapter abstractThis chapter provides the theoretical outline of the book, and explains why we should care about how women form their legal consciousness around work/life balance policies in public universities and the U.S. military.
1Navigating the Rules in Public Universities chapter abstractThis chapter focuses on the experiences of women faculty in public universities. It explores both the formal and informal rules and norms that women navigated when making decisions about claiming their rights to work/life balance laws and policies within their institutions.
2Navigating the Rules in the U.S. Military chapter abstractThis chapter focuses on the experiences of women who are currently serving, or who have served, in the U.S. military. It explores both the formal and informal rules and norms that women navigated when making decisions about claiming their rights to work/life balance laws and policies within their institutions.
3Looking Out and Speaking Up: Individual Agency and Networks chapter abstractThis chapter compares the case studies presented in Chapters 1 and 2 and focuses on the instrumental design element of the theoretical framework for the book. It explores how individuals act with agency to form their own legal consciousness around work/life balance policies, and the legal consciousness of those around them, using institutional consciousness networks (ICNs). These networks can function as a way for women to gain legal knowledge, seek emotional and professional support, and exercise resistance to institutional culture.
4Status Speaks: The Importance of Rank chapter abstractThis chapter examines more closely and compares the institutional structures of public universities and the U.S. military. It does so specifically by focusing on these institutions through the lens of rank, an institutional structure that controls the institutional cultures of both institutions fairly significantly. This chapter focuses on how rank plays a role in shaping women's legal consciousness formation in both institutions.
5In the Shadow of the Ideal Worker chapter abstractThis chapter focuses on the ideological construct of the Ideal Worker. This construct affects the legal consciousness of women in both public universities and the U.S. military by stereotyping mothers in these professions are "nonideal." For women faculty, this stereotype casts them as "not serious" about their careers, while women service members are stereotyped as shirking their duties. The chapter concludes by discussing the ways in which current work/life balance policies may in fact reinforce these stereotypes rather than combating them.
Conclusion: Can Mothers Ever Be Ideal Workers? chapter abstractThis chapter summarizes the findings of the book, concluding that legal consciousness formation can be observed through instrumental, institutional, and ideological processes. Having revealed in previous chapters the limitations of current public policy aimed at achieving work/life balance, this chapter offers some suggestions for improving the efficacy of these policies. It concludes, however, that significant cultural and institutional discursive shifts must take place in order for public policy to have any meaningful impact on women's lived experiences as working mothers.