The opinion of Bush’s newest nomination to the Supreme Court, Samuel Alito, regarding the abortion issue will undoubtedly receive a flood of attention in coming weeks. But Alito’s opinion regarding the Family and Medical Leave Act (FMLA), signed into law in 1993 by Bill Clinton, also seems deserving of close scrutiny – particularly since it highlights one of my greatest frustrations regarding political stereotypes: the notion that conservatives are better defenders of family values than liberals are.
In 2000, Alito authored an opinion in which he ruled that the FMLA was an instance of unconstitutional congressional overreach. In particular, he said that the FMLA was unconstitutional because there was no evidence for the notion that women are disadvantaged in the workplace when they are not allowed to take family leave. Furthermore, he argued, the requirement that everyone be guaranteed 12 weeks of unpaid family leave was a disproportionately strong remedy:
Notably absent [from the FMLA] is any finding concerning the existence, much less the prevalence, in public employment of personal sick leave practices that amounted to intentional gender discrimination in violation of the Equal Protection Clause.
…Moreover, even if there were relevant findings or evidence, the FMLA provisions at issue here would not be congruent or proportional.
Alito’s idea that women are not disadvantaged when they can not take maternity leave seems absurd, both intellectually and factually. Even William Rehnquist, who wrote the Supreme Court’s 6-3 opinion in 2003 overturning Alito’s ruling, found Alito’s argument deeply flawed.
In the Supreme Court majority opinion, Rehnquist cited the extensive evidence that was presented during the debate about the FMLA in Congress, and that clearly documented the pervasive discrimination implicit in unregulated family leave policies. Furthermore, Rehnquist argued that the FMLA was an entirely appropriate remedy to this subtle form of discrimination. These powerful paragraphs summarize the argument:
Stereotypes about women’s domestic roles are reinforced by parallel stereotypes presuming a lack of domestic responsibilities for men. Because employers continued to regard the family as the woman’s domain, they often denied men similar accommodations or discouraged them from taking leave. These mutually reinforcing stereotypes created a self-fulfilling cycle of discrimination that forced women to continue to assume the role of primary family caregiver, and fostered employers’ stereotypical views about women’s commitment to work and their value as employees. Those perceptions, in turn, Congress reasoned, lead to subtle discrimination that may be difficult to detect on a case-by-case basis.
…By creating an across-the-board, routine employment benefit for all eligible employees, Congress sought to ensure that family-care leave would no longer be stigmatized as an inordinate drain on the workplace caused by female employees, and that employers could not evade leave obligations simply by hiring men. By setting a minimum standard of family leave for all eligible employees, irrespective of gender, the FMLA attacks the formerly state-sanctioned stereotype that only women are responsible for family caregiving, thereby reducing employers’ incentives to engage in discrimination by basing hiring and promotion decisions on stereotypes.
While Rehnquist provided the legal rationale explaining why the Congress has the authority to make laws such as the FMLA, I think that the most powerful argument in favor of the FMLA is simply this: a society that values families should try to help parents spend more time with their children, not put obstacles in their way.
It is worth noting that the most common complaint that opponents to the FMLA voice is that it imposes expensive burdens on businesses. (This suggests something bizarre about the conservative notion of family values, by the way: it seems that families spending time together is of secondary concern to business profitability.) But it turns out that economists studying this issue have generally found that family leave does not hurt businesses’ bottom line, or economic growth more generally. If anything, more generous family leave seems to be modestly correlated to greater productivity, not reduced productivity. (See this paper by Christopher Ruhm and Jackqueline Teague for an example.)
Alito’s opinion regarding the FMLA is therefore troubling to me in several respects: he denies the obvious logic and evidence that indicates that the family leave provisions (or lack thereof) that workers faced prior to 1993 had profound and different effects on working men and women; he is far out of the mainstream of American public opinion (for example, surveys suggest that a large majority of Americans believe the Congress should mandate paid family leave, not to mention the unpaid leave stipulated by the FMLA); he is out of the mainstream of American conservative legal opinion (as represented by William Rehnquist, at least); and when he wrote that the provisions of the FMLA constituted a “disproportionate” requirement, he implicitly contradicted the economic evidence that indicates that the requirements of the FMLA are actually very modest and place little or no burden on businesses.
All in all, my first foray into learning about Samuel Alito was not an encouraging one.
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