Caregiver Conundrum Redux: The Entrenchment of Structural Norms

Abstract

Scholars and feminists (and feminist scholars) have been debating ways to ameliorate the work-family conflict for several decades. For some of us writing in this area, it seems as if the debate is endless and ineradicable. Unfortunately, this Article does not end the debate with some brilliant solution. Instead, I attempt to explain why the “caregiver conundrum” is so unwieldy and unyielding. The reason, I argue, is because of the entrenchment of structural norms in the workplace. By structural norms, I am referring to employers’ rules and practices regarding hours, shifts, schedules, attendance, leaves of absence, etc. — basically, when and where the work is performed. In this Article, I argue that employers are very reluctant to make modifications to the structural norms of their workplace and courts are loath to force them to do so. Because many individuals with disabilities ask for modifications to the structural norms pursuant to the Americans with Disabilities Act, I use this body of law to demonstrate the entrenchment of these norms. And because these norms are so entrenched, I explain how proposed solutions, both litigation- and legislation-focused, will ultimately fail. Instead of the many solutions that have been proposed thus far, the only way to truly solve the caregiver conundrum is to dismantle the entrenchment of the structural norms.

Keywords: discrimination, gender, sex, caregiving, accommodation, caregivers, workplace, employees, ADA