Giving and Taking Family Leaves: Right or Privilege?

Abstract

After briefly outlining the contents of the Family and Medical Leave Act (FMLA) and its history, this Article examines four research questions. Two of the questions address the utilization of family leave: 1) how many workers take family leave and 2) which workers take family leave. The others address the implementation of leave: 3) how many employers comply with the FMLA and provide leave and 4) which employers comply with the FMLA and provide leave. To address the first two questions, we use the Commission on Family Leave data on the FMLA to show that the Act bolsters gender inequality in caregiving at the same time as it exacerbates inequalities by marital status, sexuality, race, and class. In doing so, it reinforces a narrow model of families practiced primarily in white, affluent, heterosexual marriages. To further examine the extent to which gender and class shape leave-taking, this Article relies on a qualitative study we conducted using intensive interviews and observations. We show that middle-class women (nurses) are more likely to take the leave provided by the FMLA than workingclass women (nurses' aides) while working-class men (Emergency Medical Technicians) are more likely to take leave than middle-class men (physicians) and argue that this highlights the intersection of gender and class in shaping caregiving and responses to the FMLA. Finally, to answer the last two questions, we use the Families and Work Institute's National Study of Employers to show that between one-quarter and one-half of employers do not comply with the FMLA. These tend to be small employers whose workforces are not unionized and include fewer women and hourly workers. We conclude by suggesting that the ability to take care of family members is a luxury and that the FMLA ensures caregiving remains a privilege rather than a right.