Today, a woman in the United States who becomes pregnant will gain access to special legal protections at her workplace, including a right to nondiscrimination and non-harassment by her employer. Yet, after giving birth and returning to work, she will watch those legal protections dissipate. Title VII of the Civil Rights Act, the federal law that shields pregnant employees and other protected classes from discrimination, offers no express protection for parents or other caregivers. Title VII’s silence toward caregivers is reflected in all other pertinent federal laws covering the workplace rights of employees. Ultimately, there is no federal statute in place to prevent employers from discriminating against employees with children or other family responsibilities at home.
Despite—or perhaps because of—this fact, employment discrimination against caregivers is prevalent, and the pathways available for caregivers to fight back are narrow and thorny. Moreover, although a growing body of scholarship has studied the challenges of “family responsibilities discrimination” in the aggregate, the particularized needs of caregivers (construed in this Note as all those responsible for parenting, save for those who are actively pregnant) have not always gotten their due. Yet the problem of securing safe workplaces for caregivers is a profound one that impacts men, women, children, and our communities more broadly.
This Note seeks to fill this niche by investigating fully the challenge of workplace discrimination against caregivers. This Note reviews relevant history and doctrine in order to frame the problem, catalogues available causes of action and the various challenges they present, studies areas where otherwise viable complainants lose momentum, and offers ultimate reforms aimed at ameliorating these problems. This Note is inspired and framed by the recent Covid-19 pandemic, which has heightened the stakes for finding a solution to this already-pressing employment topic.
* J.D. Candidate, Stanford Law School, 2023. I am deeply grateful for the generous support and advising of many Stanford faculty, including Richard Ford and Anne Joseph O’Connell, without whom this Note would not exist. I extend my thanks also to Jill Thompson and Amanda Glatt for support and inspiration, and to Bernadette Meyler and the students of the Fall 2022 Legal Studies Workshop for insightful feedback. I am indebted to my parents, Steven Rehaut and Laurie Soriano, who set an unforgettable example of caregiving—while career-chasing—long before I ever studied the topic. Finally, I owe a special gratitude to the hardworking editors of the Stanford Law Review, especially Jared Lucky, Lauryn Bennett, Susana Gutiérrez, Garrett Wen, and Ashton Woods.