The daddy double-bind: how the family and medical leave act perpetuates sex inequality across all class levels.

For over a decade there has been a great deal of discussion in America about work-family conflict or work-life balance. These discussions have typically focused on the plight of women, mothers in particular, and the inhospitable labor market. (1) Advocates who seek to improve the status of women have been vocal in demanding changes in the workplace. In response, employer policies like job sharing and flextime have become common and awards for the most "family-friendly" workplace are readily visible. (2)

Despite all of this commotion, however, there is a persistent tension between employer expectations and employee responsibilities. Employers still espouse ideal worker norms (3) that require long hours and uninterrupted tenures, which were established by the breadwinner/homemaker family model of the mid-twentieth century. Meanwhile, most families need two wage-earners just to make ends meet. With the continuing decline in real wages, many families simply cannot afford to have one parent stay home. (4) Sociologist Theda Skocpol notes, "[I]n the late 1950s, a high-school educated father could make enough to sustain a family consisting of a homemaker mother and two children at an economic level above the poverty line." (5) Today, only thirty-one percent of married couples with children under eighteen have a father who works and a mother who does not. (6) Skocpol observes, "[W]e no longer have an economy centered around the father-breadwinner who goes off to work at a full-time (or more), well-paid, lifetime job, leaving behind a mother to care for the home and family. Instead, single-parent or two-worker families are prevalent." (7)

Although it is widely recognized that changing family structures creates a "second shift" phenomenon, (8) burdening women with both paid and unpaid labor, these trends also perpetuate women's inequality in other seemingly invisible ways. Lurking just behind the popular discourse about women is a large group of workers whose work-family conflicts are going relatively unnoticed--fathers. Dads in America face as much, if not more, difficulty than morns when they try to strike a balance between their jobs and their families. In fact, a recent survey in Business Week found that men reported greater frustration than women regarding the balance between work and family. (9) Men often encounter subtle societal pressures as well as outright employer hostility. (10) The result is that dads have a harder time stepping out of the traditional breadwinner role to venture across the gender divide into a nurturing, caregiver position. While women have traveled toward work "at the speed of light," men have trekked toward home "at the speed of a glacier." (11) Because men have been unable to change their position, the gendered division of labor in households continues virtually unabated and the goal of sex equality fails to come to fruition.

To address the negative impact on women created by the persistent division of labor, a movement to value unpaid household and care work (12) has been added to the demands for more "family-friendly" workplace policies. While these strategies have some potential to improve the status of women, they fail to fully address the male factor in the gender equation. Men, and fathers in particular, have been on the margins of work-family issues, but progress in women's equality cannot accelerate until the masculine side of the gender binary is also unraveled.

The Family and Medical Leave Act (FMLA) (13) of 1993 was one such attempt at redressing women's inequality through a gender-neutral social policy. (14) The FMLA was aimed at protecting the jobs of caregivers, most of whom are women, without codifying a sex-specific division of labor. However, glaring limitations in the law itself, as well as the judicial interpretation and enforcement that followed, have left most men and women in the same position they occupied when the Act was passed. Two major problems need to be addressed. First, since the Act provides only unpaid family leave, it is seen primarily as a job security statute for middle-and upper-class workers. Providing a mechanism for replacement pay would make the Act more relevant for low- and middle-income workers who cannot afford to go without a paycheck. This would also significantly increase the usage by men who are still primary breadwinners. Second, weak judicial enforcement has left untouched a pervasive hostility on the part of employers. Lack of enforcement presents challenges to men at all class levels, but improving litigation outcomes would be most important for middle- and upper-income workers who can afford to take leave but are afraid to do so.

Without these two changes, the FMLA not only fails to address work-family tensions for most workers, but also fails to interrupt the cycle of inequality that takes over when workers become parents. Women continue to struggle to reconcile work with their traditional caregiver role, while men struggle to reconcile family with their traditional provider role. Work-family conflicts mean that both women and men are marginalized, although in opposite ways. (15)

Both mothers and fathers feel the inadequacy of the FMLA; however, this Article argues that the impact is greater for fathers and significantly inhibits men's movement toward domestic responsibilities. For fathers, the enduring grip of "hegemonic masculinity" (16) demands success as a breadwinner, while the call of "new fatherhood" (17) demands active involvement with and responsibility for daily family life. I call this situation the "daddy double-bind" because, like the "double-bind" women face, (18) the competing demands on fathers leave men with primarily lose-lose "choices." Success as a provider means time away from family, while time spent with family spells failure at work. The FMLA could offer a way out, but it falls short.

To explore and explain the daddy double-bind, this Article begins with a portrait of the modem American family. Part I outlines the average family arrangement in terms of division of labor and parenting trends. Part II looks more specifically at the situation of fathers and the class implications of the daddy double-bind. Part II| dissects the FMLA, including an overview of the law, participation rates, and implications of the Act's provisions. Part IV proposes changes in the FMLA and alternative policies that may begin to dismantle the barriers faced by fathers at all class levels and interrupt the cycle of sex specialization that perpetuates gender inequality. By bringing fathers from the margin of work-family discussions to the center, (19) this Article suggests how the law can accelerate social change and support greater equality across class, as well as across gender.

I. TODAY'S TRADITIONAL AMERICAN FAMILIES

The most notable trend for American families over the past half century has been the mass entrance of women into the paid labor market. In the early 1950s, only thirty percent of married mothers with school-aged children were working outside the home. (20) Today, that figure is over seventy-seven percent. (21) As women have moved away from a strict homemaker role, the structure of American families has moved away from the breadwinner/homemaker model. Despite this shift, women still face significant economic disadvantages relative to men, and traditional norms remain entrenched.

A. Women's Woes

Modern feminist advocacy and activism has been instrumental in illuminating and elevating the status of women for decades. Despite several successes on both the legislative and litigation fronts, two key indicators of women's subordination remain--the wage gap and the division of labor. In 2004, women who worked full-time earned 76.5% of men's wages, up from 59.4% in 1970. (22) Not surprisingly, the gap was worse for women of color--African American women earned sixty-seven percent and Latina women earned fifty-five percent. (23) Overall, the wage gap amounts to $200 billion annually, and will cost the average twenty-five-year-old working woman $523,000 over her lifetime. (24) This loss in income is compounded by a subsequent loss in investment returns, which reduce women's retirement and pension savings. It numerically illustrates the lingering inequality women face throughout their lives.

Although the wage gap between women and men is significant, the gap between mothers and women without children is even larger than the gap between men and women overall. (25) The first child tends to reduce a woman's income by 7.5%, the second by another eight percent. (26) "Even after controlling for differences in characteristics such as education and work experience, researchers typically find a family penalty of 10-15 percent for women with children as compared to women without children." (27) Likewise, single women make nearly ninety percent of what men do, but married women less than sixty percent. (28) Young women make ninety-four percent of men's wages, but this drops to seventy-three percent by mid-life. (29)

These statistics signal the particularly dismal status of mothers within the superset of women generally. When work and family conflict, women's wage-earning takes a noticeable hit. A national survey by the Washington Post and ABC News found that nine out of ten women surveyed had made "significant sacrifices at work because of their children." (30) Nearly sixty percent said they gave up or delayed career ambitions, sixty-four percent avoided full-time work outside the home, and forty-seven percent cut back on their hours. (31) Women in "high potential" positions who left their careers when a child was born claim this "choice" was "forced on them by long workweeks, unsympathetic employers, and inflexible workplaces." (32) Work simply would not accommodate family. Given that eighty-five to ninety percent of women become mothers, (33) the inability of mothers to blend gainful employment with family responsibilities is alarming.

In addition to the poor compensation for their paid work, women continue to bear the brunt of unpaid labor at home. Estimates indicate that women still perform between sixty-six and eighty percent of all housework. (34) Thus, even after accounting for recent increases in men's household labor, (35) women still perform two to three times the amount men do. (36) Women have not been able to shift the burden of this work to their partners by entering the paid market. For example, married women have decreased the number of hours they spend on housework, from 3.3 hours in 1977 to 2.7 hours in 2002, a reduction of forty-two minutes on workdays. (37) Married men have offset this by increasing their housework time from 1.2 hours to 1.9 hours, which also amounts to approximately forty-two minutes. (38) Even though the division of labor is narrowing, women are still doing the bulk of unpaid household labor, and are generally unable to trade paid work for care work. In fact, "women who out-earn their husbands actually do more housework than those whose husbands out-earn them, or who earn an amount roughly equal to that of their husbands." (39)

In addition, housework further hinders women's earning power. Each hour of housework correlates to a reduction in women's wages by 0.1% to 0.4%. (40) Contrarily, there is no evidence that housework reduces men's wages at all. (41) Thus, in the average American family, the father still earns nearly seventy percent of the family income, (42) and the mother still performs seventy percent of the housework. Despite decades of shifting family structures, the traditional normative vision of family life as one in which men earn the money and women tend the children appears to be alive and well.

When viewed through the lens of socioeconomic status, the appearance of modern families becomes more complicated. For example, the breadwinner/homemaker model was never a reality for low-income families. Minority and low-income women have long struggled to balance paid work with unpaid caregiving responsibilities. (43) Today, this model is becoming less of a reality for middle-income families as well. In fact, the loss of earning power has impacted families throughout the bottom two-thirds of society. (44) Nevertheless, the normative vision of the middle-class nuclear family remains strong. For example, low-income African American families tend to rely on community networks and older, unemployed black women to provide care for children while both parents work. (45) However, these kin networks and "othermother" relationships typically dissolve for black middle-class families, because moving up economically means adopting "white" middle-class values and lifestyles. (46) Isolation in single-family homes and privatization of services tend to diminish solidarity along color lines so that "middle-class black women often see working-class and poor black women only as their employees or clients." (47) Instead of having free informal care, middle-class women have to find a way to purchase care. This privatization "appears to be the hallmark of American middle-class existence, ... stopping to help others to whom one is not related and doing it for free can be seen as rejecting the basic values of the capitalist market economy." (48) Work-family conflict used to be a working-class issue. But shifting economic and work patterns have made it a middle- and, increasingly, upper-class issue as well, despite the lingering hold of traditional roles. While the economic remnants of traditional family structures remain in place for middle and upper classes, largely to the disadvantage of women, the conflict between work and family has intensified for all classes, making it even more difficult to change the division of labor and improve the status of women. These problems become even more pronounced once a couple has a child.

B. The Particulars of Parenthood

For most of our history, women's status as caregivers was seen as biologically determined, a "natural" result of being born female and becoming a mother. (49) Even today, people hold onto the notion that women have "maternal instincts" that make them superior parents. (50) Sometimes this stereotype is subtle. For example, pediatrician and parenting expert Dr. T. Berry Brazelton titled his book on children during their first year Infants and Mothers, whereas his book on ages two and three is titled Toddlers and Parents. (51) The lingering perception of maternal competence encourages gender specialization, because the mother is often seen as one step ahead of the father in anticipating care needs of their children. (52) Even in role-reversed families where the father was the primary caregiver, eighty-eight percent thought fathers could be competent parents, but fifty percent still believed that mothers had a "biological advantage" in parenting. (53) Based on this misperception, the traditional division of labor is seen as more efficient because the more competent parent is tending to the children. (54)

In addition to perceptions of competence, the fact that women continue to earn less than men also encourages gender specialization. It is economically efficient for the family to forego the smaller income, particularly when a large portion of the second-earner's salary will be spent on childcare expenses. (55) Furthermore, immediately after childbirth, women can collect disability income while staying home with the infant. Thus, the economic pressure for mothers to take on primary caregiver status remains strong.

To make matters worse, the additional expense generated by a child puts even more financial strain on the new family. Since fathers are still the primary breadwinners, it is often their responsibility to cover these new costs. This "life-cycle squeeze" is evident in work patterns. Men with …