Why are employees who sue to obtain workplace leave under the Family Medical Leave Act of 1993 (FMLA) almost twice as likely to win their cases as those who bring discrimination cases under Title VII of the Civil Rights Act of 1964 (Title VII)? The title of Kate Webber’s intriguing article reflects an intuition many feminists and family law scholars already bring to the table: courts find women more sympathetic when they make claims that conform to their appropriate gender roles (as they do when they ask for family leaves) than when they challenge those norms in the workplace (as they do when they make a claim that the workplace is discriminatory). Webber unpacks this intuition, first by identifying differences in the statutory schemes that might help to explain the gap in success rates between the two statutes, and then by examining the ways in which the content of the legal protections each statute provides might understandably trigger different ideological and cognitive responses by judges. The analysis is both cautious and compelling. It is also surprisingly optimistic, concluding that family leave laws provide a legislative model that may actually be more effective than Title VII in reducing institutional workplace inequality.
Other scholars have noted the differences between Title VII and the FMLA.1 The most important of these differences for Webber’s purposes is that the FMLA, though motivated by the desire to relieve work-family conflicts especially among women, is a gender-neutral employee benefit, much like minimum wage laws and OSHA regulation. To win an FMLA claim, a claimant need only show that she was entitled to the benefit and did not get it. In contrast, Title VII creates a civil right available on the basis of membership in a protected class. A Title VII claimant must show both that she experienced an adverse employment action and that this action was caused or motivated by the claimant’s sex, race, religion, or other protected characteristic. The difference is structural: the former defines the status quo; the latter challenges it. Continue reading "When Less is More"