Equalizing Parental Leave

The United States is the only developed country that fails to guarantee paid time off work to new parents. As a result, many new parents, particularly low-wage workers, are forced to go back to work within days or weeks of a birth or adoption. In recent years, a growing number of states have passed laws to address this gap in American labor policy, and in December 2019, Congress enacted legislation providing paid parental leave for most federal workers. This Article offers the first detailed analysis of these new laws, and it exposes how their structure—probably unintentionally—disadvantages sole-parent families. In America, unlike most other countries, leave is provided on a sex-neutral basis as an individual benefit to each parent of a newly-born, newly-adopted, or newly-fostered child. This structure is intended to shift gender norms around caretaking within (different-sex) marriages, but it means that sole-parent families receive only half as much support. This is a significant problem, as forty percent of new mothers in the United States are unmarried. Under state family law, most single mothers—disproportionately poor and working-class women of color—bear sole legal responsibility for the care of their children, and many are functionally parenting on their own. The new laws are an important step forward from the prior baseline of no paid leave, but they shortchange the families that are likely to need them the most. Prior theoretical and doctrinal assessments of equality in the context of parental leave discuss the relative merits of treating mothers and fathers identically, versus providing “special” supports to mothers. This focus obscures other important considerations, such as whether families or children are treated equally. Additionally, since women are far more likely than men to be single parents, privileging ideals of formal equality in this context has the practical effect of disadvantaging women. Drawing on models used in other countries, this Article proposes that sole parents should be eligible to receive an extended period of benefits or that a broader range of extended or chosen family members should be able to claim benefits to care for a new child. It also suggests that leave policies be structured to provide medical benefits separate from newborn bonding benefits. These changes would not unduly burden businesses, because the financing mechanism for these laws already spreads costs across the tax base. Without these proposed reforms, continued progress in encouraging fathers as well as mothers to take parental leave will further exacerbate the inequality between families with one parent and families with two

Domestic Violence and the Workplace: The Explosion of State Legislation and the Need for a Comprehensive Strategy

In recent years, domestic violence legislation has migrated out of its traditional locus in family law and criminal law to include a rapidly growing body of employment law. The new laws respond to a relatively simple problem: Economic security is one of the most important factors in whether a victim of domestic violence will be able to separate from an abusive partner, but domestic violence often interferes with victims\u27 ability to maintain jobs, thus causing job loss that further traps victims in abusive relationships. By providing supports to victims and empowering employers to take direct legal action against perpetrators of actual or threatened workplace violence, the new legislation helps employers and employees work together to address a shared interest in reducing the effects of domestic violence on the workplace. Thus addressing domestic violence as an ýemploymentý issue bolsters other strategies for combating domestic violence. Equally important, because the vast majority of victims of domestic violence are women, the new legislation complements traditional employment laws, such as Title VII and the Family and Medical Leave Act, that seek to promote sex equality by addressing a significant, though little recognized, barrier to women\u27s full participation in the workplace. This article situates the burgeoning body of new state legislation within developments in domestic violence law and employment law, particularly scholarship relating to accommodation of individual needs within the workplace. It shows that domestic violence legislation modeled on employment law accommodation mandates, such as the Family and Medical Leave Act or the Americans with Disabilities Act, import provisions in those laws that excuse relatively small or resource-poor employers. By contrast, new laws borrowing from criminal justice, public health, or unemployment insurance models either impose costs on all employers or spread costs among employers. The article concludes by making several recommendations for future reform, including better capitalizing on potential synergies among various approaches, consciously facilitating cooperation between employers and employees, and considering use of public expenditures to address certain workplace-related expenses as part of the larger societal commitment to combat domestic violence

Making Sausage: What, Why and How to Teach about Legislative Process in a Legislation or Leg-Reg Course

Although a rapidly growing number of law schools require students to take a course on legislation, many of these courses teach very little about how laws are actually enacted. This essay, written for a special issue of the Journal of Legal Education, argues that study of the legislative process helps students interpret and apply statutory language. The essay surveys existing text books and supplemental resources that could be easily integrated into a Leg-Reg or Legislation class to explain modern Congressional procedure. The focus is the multiple distinct paths that bills may take through a legislative body and the written records of this process that lawyers may later consult, rather than the arcane parliamentary procedures that govern Congress. It also describes two experiential learning assignments—an exercise in which students debate and then draft a bill; and a legislative history research assignment—that I use to deepen student learning. A working knowledge of the legislative process permits students to better deploy and critique arguments based on legislative history or canons of interpretation premised on assumptions about legislative process. Although a few class hours cannot teach students how Congress, state, or local legislative bodies “really” work, they can provide an effective foundation for the statutory research students will do throughout law school and as practicing lawyers

Non-Marital Families and (Or After?) Marriage Equality

If, as is widely expected, the Supreme Court soon holds that bans on same-sex marriage are unconstitutional, it is almost certain that the decision will rely heavily on the Court’s reasoning in United States v. Windsor. I strongly support marriage equality. However, a decision that amplifies Windsor’s conception of the harm caused by exclusionary marriage rules could set back efforts to secure legal recognition of, and respect for, non-marital families. That is, Windsor rectified a deep inequality in the law—that same-sex marriages were categorically denied federal recognition—but in so doing it embraced a traditional understanding of marriage as superior to all other family forms. Its rationale and its rhetorical flavor stand in tension with foundational cases from the 1960s and 1970s that dismantled the legal systems under which non-marital children were systematically denied benefits and that protected the decision-making autonomy of couples who engaged in sexual intimacy outside of marriage. The expansion of marriage rights for same-sex couples, including any future victory at the Supreme Court, comes at a time when marriage rates more generally are at an all-time low and non-marital childbearing is at an all-time high. The lesbian, gay, and bisexual (LGB) community is part of these larger trends. Demographers believe that the majority of children currently being raised by same-sex couples were conceived in prior heterosexual relationships that included a member of the couple. Same-sex couples with relatively low levels of educational attainment are more likely to be raising children than couples with advanced degrees; same-sex couples that include racial minorities are also more likely to be raising children than white couples. If marriage and divorce by same-sex couples follow more general trends, the members of the LGB community who are statistically most likely to be raising children are also statistically least likely to marry and remain married. Accordingly, even if same-sex couples enjoy universal marriage rights, it is essential to continue to advocate support of non-marital families and other blended family forms that depart from the “traditional” nuclear family

Communication Breakdown: How Courts Do - and Don\u27t - Respond to Statutory Overrides

Earlier commentators, including many well-respected judges, have offered thoughtful suggestions for facilitating communication from courts to Congress about problems in statutes that Congress might want to address. My research explores the opposite question. How effective is communication from Congress back to courts? The answer is: Not very. Even when Congress enacts overrides, courts frequently continue to follow the prior judicial precedent. This is likely due more to information failure than willful disregard of controlling law. Nonetheless, a key aspect of the separation of powers is broken. My research shows that when the Supreme Court overrules a prior decision, lower courts quickly decrease their reliance on the old precedent and begin to apply the new rule. By contrast, when Congress enacts an override, citation patterns to the prior precedent change very little. Even a decade later, many overridden precedents, or what I have called “shadow precedents,” are still routinely cited as controlling precedent

Non-Marital Families and (Or After?) Marriage Equality

If, as is widely expected, the Supreme Court soon holds that bans on same-sex marriage are unconstitutional, it is almost certain that the decision will rely heavily on the Court’s reasoning in United States v. Windsor. I strongly support marriage equality. However, a decision that amplifies Windsor’s conception of the harm caused by exclusionary marriage rules could set back efforts to secure legal recognition of, and respect for, non-marital families. That is, Windsor rectified a deep inequality in the law—that same-sex marriages were categorically denied federal recognition—but in so doing it embraced a traditional understanding of marriage as superior to all other family forms. Its rationale and its rhetorical flavor stand in tension with foundational cases from the 1960s and 1970s that dismantled the legal systems under which non-marital children were systematically denied benefits and that protected the decision-making autonomy of couples who engaged in sexual intimacy outside of marriage. The expansion of marriage rights for same-sex couples, including any future victory at the Supreme Court, comes at a time when marriage rates more generally are at an all-time low and non-marital childbearing is at an all-time high. The lesbian, gay, and bisexual (LGB) community is part of these larger trends. Demographers believe that the majority of children currently being raised by same-sex couples were conceived in prior heterosexual relationships that included a member of the couple. Same-sex couples with relatively low levels of educational attainment are more likely to be raising children than couples with advanced degrees; same-sex couples that include racial minorities are also more likely to be raising children than white couples. If marriage and divorce by same-sex couples follow more general trends, the members of the LGB community who are statistically most likely to be raising children are also statistically least likely to marry and remain married. Accordingly, even if same-sex couples enjoy universal marriage rights, it is essential to continue to advocate support of non-marital families and other blended family forms that depart from the “traditional” nuclear family

Shadow Precedents and the Separation of Powers: Statutory Interpretation of Congressional Overrides

In both judicial decisions and critical commentary on statutory interpretation, the possibility of congressional override is generally considered a significant balance to the countermajoritarian reality that courts, through statutory interpretation, make policy. This Article demonstrates that the “check” on judicial power provided by overrides is not as robust as is typically assumed. Despite the importance routinely ascribed to overrides, the actual effect of overrides has received surprisingly little attention within the academic community. This is perhaps because one might assume that overridden precedents are functionally erased or reversed. But because Congress technically cannot overrule a prior decision, courts must determine whether the enactment of an override fully supersedes the prior judicial interpretation. Thus overrides raise unique, and previously largely ignored, questions of statutory interpretation. Using examples from employment discrimination, an area of the law where Congress frequently overrides Supreme Court decisions, this Article demonstrates that the Supreme Court and lower courts often narrowly construe the significance of congressional overrides and instead rely on the prior judicial interpretation of statutes as expressed in overridden precedents. Thus, for example, although Congress clearly disagreed with a Supreme Court decision holding that pregnancy discrimination is not sex discrimination, lower courts, noting that the statutory language of the override only explicitly references “pregnancy, childbirth, or related medical conditions,” continue to apply the reasoning employed by the Court in that overridden case when faced with sex discrimination claims in other contexts. I call this phenomenon reliance on “shadow precedents.” The Article shows how reliance on shadow precedents threatens legislative supremacy and undermines the standard rationales offered for adherence to precedent. It argues that, in drafting overrides, Congress should strive to clarify the extent to which it disagrees with the prior judicial interpretation. It also argues that courts should adopt interpretive conventions that are more respectful of the significance of the enactment of an override: (1) a rebuttable presumption that an override supersedes the judicial interpretation of the pre-existing statutory language, thus requiring “fresh” interpretation of the original statute as well as the override, and (2) a clear rule that overridden interpretations are no longer binding on lower courts. Reprinted by permission of the publisher

Work and Caregiving During COVID-19 and Pregnant Employees and New Parents

Professor Widiss contributed chapter 6 Work and Caregiving During COVID-19 and chapter 8 Pregnant Employees and New Parents in this Open Access book edited by Jeffrey Hirsh and Sachin Pandya. The two Widiss chapters, combined into one .pdf file, can be downloaded above, or the entire book can be viewed HERE.https://www.repository.law.indiana.edu/facbooks/1253/thumbnail.jp

Griggs at Midlife

Griggs v. Duke Power, the Supreme Court case that held that policies that disproportionately harm minority employees can violate federal employment discrimination law even without evidence of “intentional” discrimination, recently turned forty. Griggs is generally celebrated as a landmark decision, but disparate impact’s current relevance (and its constitutionality) is hotly debated. Robert Belton’s The Crusade for Equality in the Workplace offers a rich and detailed history of the strategic choices that led to the plaintiffs’ victory in Griggs. This Review uses Belton’s history as a jumping off point to consider the contemporary importance of disparate impact in efforts to challenge employers’ use of criminal background screens. The Review also suggests that the failure to develop intersectional analysis — that is, an analysis of how sex and race may interact — in disparate impact doctrine risks obscuring key vectors of exclusion. Belton’s book gives modern readers an inside look at the NAACP Legal Defense and Education Fund’s litigation campaign in Griggs, and it does an excellent job showing how lawyers used disparate impact doctrine to dismantle test and educational requirements that could have excluded many black employees. The book, however, focuses almost exclusively on race discrimination cases. This Review explores the contemporaneous — and less successful — development of the doctrine in early sex discrimination cases. Generally, courts have not required employers to modify workplace structures that fail to accommodate caregiving responsibilities or pregnancy, despite their disparate impact on the basis of sex. Moreover, such policies often disproportionately harm women of color. By filling in this history, the Review offers a more nuanced assessment of disparate impact’s early years. The Review then considers contemporary efforts to challenge employers’ use of criminal background screens, policies that likewise cause a disparate impact on the basis of both race and sex. It suggests that current litigation might be more successful if the intersectional approach were better developed, but it also highlights the importance of compliance work in achieving equal employment opportunity in the modern world. Although the EEOC has lost some high profile cases in this area, its guidance indicating that criminal background screens may cause an unlawful disparate impact has pushed employers to reconsider and refine their use of such screens