Are Gender Stereotypes Bad for Women? Rethinking Antidiscrimination Law and Work-Family Conflict

The conflict between work and family responsibilities remains a significant barrier to women’s equality in the American workplace. As many commentators have noted with envy, the United States stands apart from most European countries in its failure to give women a legal right to paid maternity leave. This Article argues that the United States’s potential for reconciling the work-family conflict is undermined by the predominance of antidiscrimination law. The unique trajectory of U.S. antidiscrimination law, designed to combat paternalism and gender stereotypes, has pushed family and medical leave into a single legal regime. But today, due to the costs and fears of abuse of sick leave, treating maternity the same as illness forecloses the possibility of generous maternity leave, leading to maternity leave that is grossly inadequate and medical leave that is easily abused. To expose this American idiosyncrasy, this Article develops a thorough comparative analysis of successful European models for work-family reconciliation. In contrast to the American model, European countries’ laws are paternalistic towards women, protecting the special relationship between a woman and her child. In France and Sweden, for example, maternity is given special, generous protections, while less generous sickness leave is administered separately. This Article critiques both the American antidiscrimination approach as well as the gender- conscious European approach to synthesize new ways of reorienting the American legal frameworks for family and medical leave.