A Dilemma of Doctrinal Design: Rights, Identity and the Work-Family Conflict

This symposium article suggests that with regard to the work-family conflict, we may have exhausted doctrine’s potential in setting a constitutional foundation for women to be treated as equals in the workplace and requiring that they not be discriminated against in the event that they decide to start a family. For purposes of this piece, those accomplishments constitute the first phase or “first generation” of progress. This article is concerned with how doctrine relates to “second generation” issues arising from the work-family conflict: how to balance work and family once some initial level of equality has been achieved; how to exercise the rights now possessed in practice; and the identity conflict faced by those struggling to be both the ideal parent and the model employee. In this piece, I argue that the Court’s rights-driven framework is better limited to first-generation questions of exclusion and overt discrimination. The rights-based paradigm, focused on individual entitlements and freedoms grounded in constitutional law, is not particularly instructive — and may actually be counterproductive — in thinking about how to actually structure one’s life or re-conceptualize one’s identity after making the decision to have a child. Four elements of the doctrinal rights-based framework in particular frustrate these aims: an overpowering emphasis on individual autonomy; its focus on enabling women to operate in a man’s world; the assumption of a uniform set of goals and priorities shared by all women; and its narrow, individualized accommodation of pregnancy. Given their fundamental nature to first-generation legal victories, these elements have been internalized not only legally but also culturally; as a result, they have spilled over into current policy debates. In that context, they are not only unhelpful but may actually have a negative influence in resolving second-generation problems. Doctrine tells us much about what we are or are not entitled to and how others are forbidden from treating us, but little about who we are or want to be as individuals; the former may be necessary but is not sufficient to determine the latter. The paradigm underlying such foundational rights may therefore be ill-suited to answer many of the questions that lie ahead. Law still has an important role to play in evolving the workplace and changing cultural norms, but future policies would be well-served by following a set of guiding principles that are responsive to, and not derived from, the rights-based framework