A Role for Law?
Lisa Belkin has a great article in this week’s NY Times Magazine about the need to redefine “experience” more broadly in order to ensure gender equity in career advancement. Using Caroline Kennedy’s non-traditional career path as an example, Belkin explains that women who step out of the workplace for several years in order to parent full-time are often viewed as lacking relevant and necessary experience to return to their prior careers or take up a new career. Belkin posits that we should instead view such women as having “a range of experiences, many shaped by motherhood.” She continues, “The only way work will become more flexible for everyone, for all of us, is if the untraditional begins to count.”
Having long subscribed to the view that we will see complete gender equity in the workplace only when working fathers take an equal role in parenting, which would require them to avail themselves of the same parental leaves and difficult career decisions that working mothers face, I find Belkin’s argument an interesting route to the same end. Rather than taking the larger step of ensuring that everyone who chooses to parent, male or female, shares equally in the career impact of that decision, Belkin’s approach takes baby steps towards that goal by trying minimize the career impact for those who temporarily step out of the workplace to parent. While there are promises and pitfalls to each approach, I’m more interested today in thinking about whether law can play a role in operationalizing these strategies.
It seems to me that both approaches require a cultural, rather than a legal, shift in order to take hold. While law may have some expressive value that may help in moving norms, the gender divide in parenting and working is so strongly entrenched that law alone isn’t able to do the heavy lifting needed to create change. I see anecdotal evidence of this around me — where parental leave policies are available on similar terms to both genders, only women avail themselves of longer absences because the culture of the workplace dictates that men take only a week or two after the birth of a child. Even if it was legally possible to require all employers to offer equal parental leave to working fathers, I think it unlikely that even men who are self-professed feminists would actually take such leaves for fear of the potential consequences for their career advancement.
Similarly, Belkin’s proposal seems difficult to implement legally. The most obvious route would be employment discrimination law, and though I claim no expertise in that field, it seems a very difficult task for any judge or arbitrator to compare the non-traditional experience and qualifications of a mother who has stepped out of the workplace with the qualifications of a job applicant who has followed a more linear career path, or for any law or regulation to provide guidance in doing so. Perhaps I suffer from a lack of imagination, but it seems to me that the cultural shift will have to come first. One promising source is corporations themselves; Belkin’s article describes efforts at Deloitte to turn the workplace into a “lattice” rather than a “ladder.” If this approach enables companies to save money, attract greater talent, ensure a happier and more productive workforce, or otherwise improve the bottom line, we all may start to broaden our imaginations enough to see a role for law in operationalizing Belkin’s strategy.