Institutional perspectives on law, work, and family

Abstract Work and family scholarship increasingly focuses on how institutions constrain the choices of families struggling to balance market work with care work. Recent legal reforms, including the Family and Medical Leave Act, also focus on institutional reform to alleviate work/family conflict. This article reviews important empirical questions raised by this institutional turn in both law and social science. How have changes in the institutions of family and work contributed to work/family conflict? Have legal reforms produced more egalitarian sharing of care work between men and women? How do work organizations respond to these legal mandates? How have organizational and cultural institutions hindered or given support to laws that attempt to reform the relationship between work and family? Empirical research indicates that legal reforms have brought about important changes but that entrenched work practices and cultural norms around work, family, and gender continue to generate institutional resistance to social change

Institutional Inequality

Employment discrimination statutes generally treat inequality as the product of discriminatory animus, but this approach undertheorizes how institutions construct identities and generate inequality. Drawing on neo-institutionalist theories in sociology, this Article develops a theory of institutional inequality that focuses on how institutions give rise to inequality by reproducing the social patterns and belief systems that existed at the time they emerged. To develop this theory, the Article examines why workplace time standards that disadvantage pregnant women have remained resistant to reform through Title VII and the Pregnancy Discrimination Act. Historical genealogy shows that workplace time standards embody cultural conceptions of gender and work that developed during the transition to modern capitalist production. Courts rely on these institutionalized conceptions of work and gender to interpret antidiscrimination statutes narrowly, reinforcing an oppositional relationship between work and gender and restricting opportunities for social change. The Article concludes by arguing that legal theories, such as the Family and Medical Leave Act, which focus on structural change rather than subordinated identities, are better suited to eradicating workplace inequality that flows from the historical development of work.</p

Bargaining in the Shadow of Social Institutions: Competing Discourses and Social Change in Workplace Mobilization of Civil Rights

The Family and Medical Leave Act requires employers to provide job-protected leave, but little is known about how these leave rights operate in practice or how they interact with other normative systems to construct the meaning of leave. Drawing on interviews with workers who negotiated contested leaves, this study examines how social institutions influence workplace mobilization of these rights. I find that leave rights remain embedded within institutionalized conceptions of work, gender, and disability that shape workers' perceptions, preferences, and choices about mobilizing their rights. I also find, however, that workers can draw on law as a culture discourse to challenge these assumptions, to build coalitions, and to renegotiate the meaning of leave.</p

The Rule of Law and the Litigation Process: The Paradox of Losing by Winning

This article expands upon the idea that repeat players influence the development of law by settling cases they are likely to lose and litigating cases they are likely to win. Through empirical analysis of judicial opinions interpreting the Family and Medical Leave Act, it shows how the rule-making opportunities in the litigation process affect the development of law and the judicial determination of statutory rights. In addition, the article explains how early judicial opinions might influence later judicial interpretations of the law. Although individuals may successfully mobilize the law to gain benefits in their disputes, that success often removes their experiences from the judicial determination of rights, limiting law's capacity to produce social change. This paradox of losing by winning separates the dispute resolution function of courts from their law-making function and raises questions about the legitimacy of law. Reprinted by permission of the publisher.</p